OptimumU Health & Wellness Terms of Service

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Date Effective: September 2017 

Our website, www.optimumu.com (the "Site") and mobile application, OptimumU (the “Application”), collectively, the “Services”, are owned and operated by OptimumU Health and Wellness, Inc (“OPTIMUMU” "we" or "us"). By using the Services, you agree to be bound by these Terms of Service and to use the Services in accordance with these Terms of Service, our Privacy Policy, our End User License Agreement, our Refund Policy and any additional terms and conditions that may apply to specific sections of the Services or to products and services available through the Services or from OPTIMUMU. Accessing the Services, in any manner, whether automated or otherwise, constitutes use of the Services and your agreement to be bound by these Terms of Service.

We reserve the right to change these Terms of Service or to impose new conditions on use of the Services, from time to time, in which case we will post the revised Terms of Service on the Services. By continuing to use the Services after we post any such changes, you accept the Terms of Service, as modified.

Our Limited License to You. The Services and all the materials available on the Services are the property of us and/or our affiliates or licensors, and are protected by copyright, trademark, and other intellectual property laws. The Services are provided solely for your personal noncommercial use. You may not use the Services or the materials available on the Services in a manner that constitutes an infringement of our rights or that has not been authorized by us. More specifically, unless explicitly authorized in these Terms of Service or by the owner of the materials, you may not modify, copy, reproduce, republish, upload, post, transmit, translate, sell, create derivative works, exploit, or distribute in any manner or medium (including by email or other electronic means) any material from the Services. You may, however, from time to time, download and/or print one copy of individual pages of the Services for your personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices.

Your License to Us. By posting or submitting any material (including, without limitation, comments, blog entries, Facebook postings, photos, and videos) to us via the Services, internet groups, social media venues, or to any of our staff via email, text or otherwise, you are representing: (i) that you are the owner of the material, or are making your posting or submission with the express consent of the owner of the material; and (ii) that you are thirteen years of age or older. In addition, when you submit, email, text or deliver or post any material, you are granting us, and anyone authorized by us, a royalty-free, perpetual, irrevocable, non- exclusive, unrestricted, worldwide license to use, copy, modify, transmit, sell, exploit, create derivative works from, distribute, and/or publicly perform or display such material, in whole or in part, in any manner or medium, now known or hereafter developed, for any purpose. The foregoing grant shall include the right to exploit any proprietary rights in such posting or submission, including, but not limited to, rights under copyright, trademark, service mark or patent laws under any relevant jurisdiction. Also, in connection with the exercise of such rights, you grant us, and anyone authorized by us, the right to identify you as the author of any of your postings or submissions by name, email address or screen name, as we deem appropriate.

You acknowledge and agree that any contributions originally created by you for us shall be deemed a “work made for hire” when the work performed is within the scope of the definition of a work made for hire in Section 101 of the United States Copyright Law, as amended. As such, the copyrights in those works shall belong to OPTIMUMU from their creation. Thus, OPTIMUMU shall be deemed the author and exclusive owner thereof and shall have the right to exploit any or all of the results and proceeds in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, in all languages, as OPTIMUMU determines. In the event that any of the results and proceeds of your submissions hereunder are not deemed a “work made for hire” under Section 101 of the Copyright Act, as amended, you hereby, without additional compensation, irrevocably assign, convey and transfer to OPTIMUMU all proprietary rights, including without limitation, all copyrights, and trademarks throughout the universe, in perpetuity in every medium, whether now known or hereafter devised, to such material and any and all right, title and interest in and to all such proprietary rights in every medium, whether now known or hereafter devised, throughout the universe, in perpetuity. Any posted material which are reproductions of prior works by you shall be co-owned by us.

You acknowledge that OPTIMUMU has the right but not the obligation to use and display any postings or contributions of any kind and that OPTIMUMU may elect to cease the use and display of any such materials (or any portion thereof), at any time for any reason whatsoever.

You may use the services to track Health Data and Information, and in so doing, you may post or submit information to the Services which includes but is not limited to data and information related to your age, weight, medical history and menstrual cycle (“Health Data and Information”). Our use of such information is governed by the terms of our Privacy Policy www.optimumu.com/privacy Given the nature of OPTIMUMU’s business, OPTIMUMU is not obligated to comply with the provisions of HIPAA.

Limitations on Linking and Framing. You may establish a hypertext link to the Services so long as the link does not state or imply any sponsorship of your Services by us or by the Services. However, you may not, without our prior written permission, frame or inline link any of the content of the Services, or incorporate into another website or other service any of our material, content or intellectual property.

Third Party Services

Throughout the Services, we may provide links and pointers to Internet sites maintained by third parties. Our linking to such third-party sites does not imply an endorsement or sponsorship of such sites, or the information, products or services offered on or through the sites. In addition, neither we nor affiliates operate or control in any respect any information, products or services that third parties may provide on or through the Services or on websites linked to by us on the Services.

If applicable, any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers, are those of the respective authors or distributors, and not OPTIMUMU. Neither OPTIMUMU nor any third-party provider of information guarantees the accuracy, completeness, or usefulness of any content. Furthermore, OPTIMUMU neither endorses nor is responsible for the accuracy and reliability of any opinion, advice, or statement made on any of the Sites by anyone other than an authorized OPTIMUMU representative while acting in his/her official capacity.

THE INFORMATION, PRODUCTS AND SERVICES OFFERED ON OR THROUGH THE SERVICES AND BY OPTIMUMU AND ANY THIRD-PARTY SITES ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE SERVICES OR ANY OF ITS FUNCTIONS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT ANY PART OF THE SERVICES, INCLUDING BULLETIN BOARDS, OR THE SERVERS THAT MAKE IT AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES OR MATERIALS ON THE SERVICES OR ON THIRD-PARTY SITES IN TERMS OF THEIR CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY OR OTHERWISE.

You agree at all times to defend, indemnify and hold harmless OPTIMUMU its affiliates, their successors, transferees, assignees and licensees and their respective parent and subsidiary companies, agents, associates, officers, directors, shareholders and employees of each from and against any and all claims, causes of action, damages, liabilities, costs and expenses, including legal fees and expenses, arising out of or related to your breach of any obligation, warranty, representation or covenant set forth herein.

Health and Wellness

The Services provide health management and information applications and content published over the Internet and are intended only to assist users in their personal health improvement efforts. OPTIMUMU is not a medical organization and our staff cannot give you medical advice or diagnosis. Nothing contained in the Services should be construed as such advice or diagnosis. The information and reports generated by us should not be interpreted as a substitute for physician consultation, evaluation, or treatment. 

Our health coaches are not licensed medical practitioners. Their role is to provide you with the educational tools and information to improve your health through a holistic program. Their advice, suggestions and feedback are not meant to replace traditional medical attention.

THE SERVICES OFFER HEALTH, WELLNESS, FITNESS AND NUTRITIONAL INFORMATION AND ARE DESIGNED FOR EDUCATIONAL PURPOSES ONLY. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTH-CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THIS SERVICES. THE USE OF ANY INFORMATION PROVIDED ON THIS SERVICES IS SOLELY AT YOUR OWN RISK.

NOTHING STATED OR POSTED ON THE SERVICES OR AVAILABLE THROUGH ANY SERVICES ARE INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE. FOR PURPOSES OF THIS AGREEMENT, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE. 

Certain sections of the Services may allow you to purchase many different types of products and services online that are provided by third parties. We are not responsible for the quality, accuracy, timeliness, reliability or any other aspect of these products and services. If you make a purchase from a merchant on the Services or on a website linked to by the Services, the information obtained during your visit to that merchant's online store or website, and the information that you give as part of the transaction, such as your credit card number and contact information, may be collected by both the merchant and us. A merchant may have privacy and data collection practices that are different from ours. We have no responsibility or liability for these independent policies. In addition, when you purchase products or services on or through the Services, you may be subject to additional terms and conditions that specifically apply to your purchase or use of such products or services. For more information regarding a merchant, its online store, its privacy policies, and/or any additional terms and conditions that may apply, visit that merchant's website and click on its information links or contact the merchant directly. You release us and our affiliates from any damages that you incur, and agree not to assert any claims against us or them, arising from your purchase or use of any products or services made available by third parties through the Services.

Your participation, correspondence or business dealings with any third party found on or through our Services, regarding payment and delivery of specific goods and services, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that OPTIMUMU shall not be responsible or liable for any loss, damage, or other matters of any sort incurred as the result of such dealings.

You agree to be financially responsible for all purchases made by you or someone acting on your behalf through the Services. You agree to use the Services and to purchase services or products through the Services for legitimate, non-commercial purposes only. You also agree not to make any purchases for speculative, false or fraudulent purposes or for the purpose of anticipating demand for a particular product or service. You agree to only purchase goods or services for yourself or for another person for whom you are legally permitted to do so. When making a purchase for a third party that requires you to submit the third party's personal information to us or a merchant, you represent that you have obtained the express consent of such third party to provide such third party's personal information.

The Services may include a variety of features, such as bulletin boards, web logs, chat rooms, and email services, which allow feedback to us and real-time interaction between users, and other features which allow users to communicate with others. Responsibility for what is posted on bulletin boards, web logs, chat rooms, and other public posting areas on the Services, or sent via any email services on the Services, lies with each user - you alone are responsible for the material you post or send. We do not control the messages, information or files that you or others may provide through the Services. It is a condition of your use of the Services that you do not:

• Restrict or inhibit any other user from using and enjoying the Services.
• Use the Services to impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity.
• Interfere with or disrupt any servers or networks used to provide the Services or its features, or disobey any requirements, procedures, policies or regulations of the networks we use to provide the Services.
• Use the Services to instigate or encourage others to commit illegal activities or cause injury or property damage to any person.
• Gain unauthorized access to the Services, or any account, computer system, or network connected to the Services, by means such as hacking, password mining or other illicit means.
• Obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services.
• Use the Services to post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, pornographic, profane or indecent information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or international law.
• Use the Services to post or transmit any information, software or other material that violates or infringes upon the rights of others, including material that is an invasion of privacy or publicity rights or that is protected by copyright, trademark or other proprietary right, or derivative works with respect thereto, without first obtaining permission from the owner or rights holder.
• Use the Services to post or transmit any information, software or other material that contains a virus or other harmful component.
• Use the Services to post, transmit or in any way exploit any information, software or other material for commercial purposes, or that contains advertising.
• Use the Services to advertise or solicit to anyone to buy or sell products or services, or to make donations of any kind, without our express written approval.
• Gather for marketing purposes any email addresses or other personal information that has been posted by other users of the Services.

OPTIMUMU may host message boards, chats and other public forums on its Services. Any user failing to comply with the terms and conditions of this Agreement may be expelled from and refused continued access to, the message boards, chats or other public forums in the future. OPTIMUMU or its designated agents may remove or alter any user-created content at any time for any reason. Message boards, chats and other public forums are intended to serve as discussion centers for users and subscribers. Information and content posted within these public forums may be provided by OPTIMUMU staff, OPTIMUMU's outside contributors, or by users not connected with OPTIMUMU, some of whom may employ anonymous user names. OPTIMUMU expressly disclaims all responsibility and endorsement and makes no representation as to the validity of any opinion, advice, information or statement made or displayed in these forums by third parties, nor are we responsible for any errors or omissions in such postings, or for hyperlinks embedded in any messages. Under no circumstances will we, our affiliates, suppliers or agents be liable for any loss or damage caused by your reliance on information obtained through these forums. The opinions expressed in these forums are solely the opinions of the participants, and do not reflect the opinions of OPTIMUMU or any of its subsidiaries or affiliates.

OPTIMUMU has no obligation whatsoever to monitor any of the content or postings on the message boards, chat rooms or other public forums on the Servicess. However, you acknowledge and agree that we have the absolute right to monitor the same at our sole discretion. In addition, we reserve the right to alter, edit, refuse to post or remove any postings or content, in whole or in part, for any reason and to disclose such materials and the circumstances surrounding their transmission to any third party in order to satisfy any applicable law, regulation, legal process or governmental request and to protect ourselves, our clients, sponsors, users and visitors.

To use the Services, you must provide certain devices, software and data connections. For as long as you use the Services, you consent to installing updates, including by automatic means. By installing the Services onto your device, you may be subject to additional third party terms and conditions, including those as provided by the Apple Store or Google Play Store, as applicable. We may discontinue some or all of our Services, including certain features and support for certain devices and platforms at any time. You may delete your account at any time, however, if you only delete our Services from your device, without using our in-app “delete my account” feature, we may continue to store your information.

To access certain features of the Services, we may ask you to provide certain demographic information including your gender, year of birth, zip code and country. In addition, if you elect to sign-up for a particular feature of the Services, such as chat rooms, web logs, or bulletin boards, you may also be asked to register with us on the form provided and such registration may require you to provide personally identifiable information such as your name and email address. You agree to provide true, accurate, current and complete information about yourself as prompted by the Services' registration form. If we have reasonable grounds to suspect that such information is untrue, inaccurate, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof). Our use of any personally identifiable information you provide to us as part of the registration process is governed by the terms of our Privacy Policy.

To use certain features of the Services, you will need a username and password, which you will receive through the Services's registration process. You are responsible for maintaining the confidentiality of the password and account, and are responsible for all activities (whether by you or by others) that occur under your password or account. You agree to notify us immediately of any unauthorized use of your password or account or any other breach of security, and to ensure that you exit from your account at the end of each session. We cannot and will not be liable for any loss or damage arising from your failure to protect your password or account information.

UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL WE, OUR SUBSIDIARY AND PARENT COMPANIES OR AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SERVICES, INCLUDING OUR MESSAGING, BLOGS, COMMENTS OF OTHERS, BOOKS, EMAILS, PRODUCTS, OR SERVICES, OR THIRD-PARTY MATERIALS, PRODUCTS, OR SERVICES MADE AVAILABLE THROUGH THE SERVICES OR BY US IN ANY WAY, EVEN IF WE ARE ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. (BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, OUR LIABILITY AND THE LIABILITY OF OUR SUBSIDIARY AND PARENT COMPANIES OR AFFILIATES IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.) YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT WE ARE NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER. IF YOU ARE DISSATISFIED WITH THE SERVICES, ANY MATERIALS, PRODUCTS, OR SERVICES ON THE SERVICES, OR WITH ANY OF THE SERVICES'S TERMS AND CONDITIONS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES AND THE PRODUCTS, SERVICES AND/OR MATERIALS.

THE SERVICES ARE CONTINUALLY UNDER DEVELOPMENT AND OPTIMUMU MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE.

We may cancel or terminate your right to use the Services or any part of the Services at any time without notice. In the event of cancellation or termination, you are no longer authorized to access the part of the Services affected by such cancellation or termination. The restrictions imposed on you with respect to material downloaded from the Services, and the disclaimers and limitations of liabilities set forth in these Terms of Service, shall survive.

Your purchase of a product or service or ticket to an event may or may not provide for any refund. Each specific product, service, event or course will specify its own refund policy.

The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under the U.S. copyright law. If you believe in good faith that materials hosted by OPTIMUMU infringe your copyright, you, or your agent may send to OPTIMUMU a notice requesting that the material be removed or access to it be blocked. Any notification by a copyright owner or a person authorized to act on its behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon OPTIMUMU actual knowledge of facts or circumstances from which infringing material or acts are evident. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send to OPTIMUMU a counter-notice. All notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright for details. OPTIMUMU's Copyright Agent for notice of claims of copyright infringement or counter notices can be reached as follows: support@accentushealth.com

This Agreement shall be binding upon and inure to the benefit of OPTIMUMU and our respective assigns, successors, heirs, and legal representatives. Neither this Agreement nor any rights hereunder may be assigned without the prior written consent of OPTIMUMU Notwithstanding the foregoing, all rights and obligations under this Agreement may be freely assigned by OPTIMUMU to any affiliated entity or any of its wholly-owned subsidiaries.

Our Food Logging feature is powered by FatSecret.  Here is a link to their Terms of Service  By using our software application or website, you are agreeing to be bound by these Terms of Use; and know that we do not share any of your data with FatSecret and that we protect the privacy and legal rights of all users.

These Terms of Use shall be governed by and construed in accordance with the laws of the State of Ohio and any dispute shall be subject to binding arbitration in Delaware County, Delaware Ohio. If any provision of this agreement shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.

Class Action Waiver

You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed.

The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless all relevant parties specifically agree to do so following initiation of the arbitration.

Severability

If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.