Current as of October 6, 2014
PLEASE REVIEW THE ARBITRATION CLAUSE (IN SECTION 17) CAREFULLY, INCLUDING THE LIMITATIONS OF YOUR RIGHTS CONTAINED THEREIN. ALL DISPUTES REGARDING THIS AGREEMENT AND/OR YOUR PARTICIPATION IN A HEALTHYWAGE PROGRAM(S) AND/OR YOUR USE OF THE HEALTHYWAGE WEBSITE MUST BE RESOLVED VIA ARBITRATION. BY AGREEING TO THIS AGREEMENT, YOU ARE FORFEITING CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE IN COURT, THE RIGHT TO A JURY TRIAL AND THE RIGHT TO BRING OR BE PART OF A CLASS ACTION CASE.
Please carefully read these Terms and Conditions relating to your use of our Website. By using the HealthyWage Website, you agree to these Terms and Conditions (the "Terms & Conditions"), which we reserve the right to modify at any time, in our sole discretion. We will make a note on this document of the date of any changes to the Terms & Conditions; you should periodically check the Terms & Conditions for such changes. By using this Website after we post any changes to these Terms & Conditions, you agree to accept those changes, whether or not you have reviewed them. If you do not agree to these Terms & Conditions, you should not use our Website. Please note that HealthyWage services are void where prohibited.
These Terms & Conditions apply to your use of the websites that are owned or operated by HealthyWage LLC (“HealthyWage”) and our affiliates (collectively, “we,” “us,” or “our”), including, without limitation, this website and any other website(s) that we may own or operate currently or in the future (collectively, our “Website” or the “HealthyWage Website”). For purposes of these Terms & Conditions, "affiliates" shall mean any entity or person, directly or indirectly, owning an interest in, owned by, or under common ownership control with, HealthyWage.
You may be subject to additional posted rules (which are hereby incorporated by reference) applicable to certain Content and Services, or other items and information available through HealthyWage.
By using this Website or participating in any of our fee-based services, including the free-of-charge versions of our fee-based services (the “Services”)1, you agree to be legally bound and to abide by these Terms & Conditions, just as if you had used a pen to physically affix your signature to these Terms & Conditions. If you do not comply with these Terms & Conditions at any time, we reserve the right, if applicable, to suspend your password, user account, and/or access to this Website. If you do not abide by these Terms & Conditions, you agree that we may immediately deactivate or delete your user account and account information and bar any further access to such information. Further, you agree that we shall not be liable to you or anyone for any termination of your access to our Website. From time to time, we may supplement these Terms & Conditions with additional terms and conditions pertaining to specific Content or Services ("Additional Terms"). Such Additional Terms may be placed on the Website to be viewed in connection with the specific Content or Services and shall be identified as such. You understand and agree that such Additional Terms are hereby incorporated by reference into these Terms & Conditions.
CHILDREN UNDER THE AGE OF 18 ARE NOT PERMITTED TO USE THIS WEBSITE, except as provided in the Services Agreement and challenge-specific rules (e.g., with written permission from (1) minor's parent or legal guardian, and (2) minor's physician).
The HealthyWage Website provides weight management services and information and is intended only to help users in their personal weight loss efforts. HealthyWage is not a health clinic, hospital or medical institution of any kind, and no one at HealthyWage or the Website can give you medical advice or diagnosis. Nothing contained in this Website should be construed as such advice or diagnosis. This Website is intended for use only by healthy adults. The Website, Content and Services are not intended for use by minors, pregnant women, or individuals with any type of health condition. Such individuals are specifically warned to seek professional medical advice prior to initiating any form of weight loss program.
Use of HealthyWage does not create a doctor-patient relationship. Any and all Content or Services accessed through HealthyWage are for informational purposes only, and are not intended to cover all possible uses, directions, precautions, drug interactions, or adverse effects.
Content should not be used during a medical emergency or for the diagnosis or treatment of any medical condition. Please consult your doctor or other qualified health care provider if you have any questions about a medical condition; or before taking any drug, changing your diet, or commencing or discontinuing any course of treatment.
NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THE HEALTHYWAGE WEBSITE!
IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL 911 OR YOUR DOCTOR IMMEDIATELY.
a. We authorize you to view, access and display the Website solely for your personal, non-commercial use in accordance with all applicable laws, provided that you fully comply with these Terms & Conditions and any other agreement you enter into with HealthyWage. In other words, unless we otherwise agree, we hereby grant you a non-transferable, non-exclusive, limited right to access, use and display this Website for your personal, noncommercial use, provided that you comply fully with the provisions of these Terms & Conditions. By using the Website, you acknowledge that the Website contains features, photos, video and other graphics, information, software, text, music, sounds, suggestions, messages, comments, feedback, ideas, recipes, notes, articles and other materials (collectively, the "Content") that are protected by copyrights, patents, trademarks, trade secrets and/or other proprietary rights, and that these rights are valid and protected in all forms, including in the form of media and technologies that exist now and those that we might develop later. All Content is copyrighted under the United States copyright laws and, to the extent applicable, under foreign laws, and we own a copyright in all aspects of the Content, including selection, flow, layout, coordination and enhancement of such Content. All trademarks appearing on this Website are trademarks of their respective owners. HealthyWage is the trade name and the registered trademark and service mark of HealthyWage LLC. The Team Challenge, HealthyWager, BMI Challenge and 10% Challenge are proprietary trade names for our flagship products. Our commercial partners, suppliers, advertisers, sponsors, licensors, contractors and other third parties may also have additional proprietary rights in the Content which they make available on this Website. You may not modify, publish, transmit, distribute, perform, participate in the transfer or sale, create derivative works of, or in any way exploit, any of the Content, in whole or in part. Modification of the Content or use of the Content for any purpose aside from your personal use, is strictly prohibited without our prior written consent.
b. Warning: You may find certain health-related Content on the HealthyWage Website offensive, including that which is sexually explicit.
c. The Content may not be used for any illegal purpose. You may not access our Website, Services, networks, systems, computers, or the Content in any manner that could damage or impair them, or interfere with anyone’s use or enjoyment.
d. The Content is licensed only for the personal, household, and educational use of a single adult. An individual's noncommercial reuse or redistribution of any portion of the Content that falls within what is or would be permitted by the United States Copyright or the Lanham Act is permitted. No commercial use or redistribution of any Content is permitted. Any hyperlink or other re-display of the information on another web site must display the Content full-screen and not within a "frame" on the linked or other site.
e. We do not recommend or endorse any specific Content, tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Website. Reliance on the Content is solely at your own risk. Content may have been provided by third parties and is not vetted or certified by HealthyWage. While we believe you will find the Content useful, we cannot guarantee that the Content will help you achieve the results you seek. Content regarding dietary supplements or other treatments or regimens has not been evaluated by the Food and Drug Administration and is not intended to diagnose, treat, cure, or prevent any disease.
f. The Content may link you to other web sites or information, software, data, or other contents on or off the Internet, including linked click-through or other advertising, or through featured or sponsored sites. We have not reviewed the contents that may be reached by such links and we are not responsible for such content. Your linking to any other pages on other sites is at your own risk. The information, software, data, or other contents (including opinions, claims, comments) contained in linked references are those of the companies responsible for such sites and should not be attributed to us. We have not attempted to verify the truth or accuracy of any such opinion, claim, or comment, nor do we endorse or support them. We do not warrant, nor are we in any way responsible for, information, software, data, privacy policies, or other content that is outside of our control.
If you elect to become a registered user of the Website, which is voluntary and does not cost any money, you agree that:
a. You will honor the posted rules of the website, including the Conduct Rules, below, which apply to your comments that may be visible to other users, including on the Website, on Facebook and Twitter, and via email. You promise to conduct yourself always according to the law, and also according to all our rules, and to refrain from using crude or otherwise inappropriate language and from harassing or bothering other users.
b. You will provide accurate and complete registration information when you register to use HealthyWage, and to provide updates as necessary to keep your registration information accurate. Without limiting any other provision of these Terms & Conditions, if you provide any information that is untrue, inaccurate, or incomplete, or we have reasonable grounds to suspect that such is the case, we reserve the right to suspend or terminate your user account and refuse any and all current or future use of our Website (or any portion thereof). You agree not to assign, transfer or sublicense your rights as a registered user of this Website. You further agree not to register for more than one account, create an account on behalf of someone else, or create a false or misleading identity on this Website.
c. You are responsible for the security of your passwords and for any use of your account. You must immediately notify us of any unauthorized use of your password or account.
d. Your use of HealthyWage and any Content and/or services must comply with all applicable laws, regulations, and ordinances, including any laws regarding the export of data or software. You must be at least 18 years old to use HealthyWage.
You hereby acknowledge that any and all Content posted to or emailed in connection with this Website, whether posted at our request or spontaneously, and whether publicly or privately transmitted (collectively, the "Postings"), are the sole responsibility of the person who made such Postings. We do not control the Postings made by others and, as such, we do not guarantee the veracity or accuracy of such Postings.
You agree not to use the Website to:
a. Impersonate any person or entity, including, but not limited to any representative of HealthyWage or any other person or entity, or misrepresent your affiliation with HealthyWage or any other person or entity;
b. Transmit any Postings or other materials that are intended to be–or are in fact–harassing, defamatory, libelous, tortious, vulgar, harmful, libelous, invasive of another's privacy, hateful (or which might reasonably be interpreted as hateful), or that might incite fear, violence, unlawful conduct or harm of any kind;
c. Harm minors in any way, or solicit or otherwise attempt to gain any information from a minor;
d. Forge headers or otherwise manipulate technology in order to disguise any Postings or other materials transmitted via the Website;
e. Transmit any Postings or other materials that are not your own, or that you do not have a right to transmit under any law or contractual or legal duty;
f. Transmit any Postings or other materials that infringe upon any intellectual property right or any other proprietary rights of any party;
g. Interfere with this Website or any of the hardware or software that support it, including servers and networks connected to this Website, or disobey any rules, policies or regulations of networks connected to the Website;
h. Violate, intentionally or otherwise, any law or government regulation; or
i. Transmit any unauthorized advertising, marketing or promotional Postings or other materials, including "junk mail" or any other form of commercial solicitation, except in those areas, if any, that are specifically designated for such purpose;
j. Solicit, collect or post personal data or attempt to solicit, collect or post personal data about other users of the Website, including user names or passwords; or
k. Access or attempt to access information about other users, or about HealthyWage or its employees or affiliates or other private information, other than information that is made available to you by HealthyWage. To that end, you agree not to solicit, or otherwise collect (or attempt to solicit or collect) personal data about the Website’s other users, including usernames and passwords. You also promise not to post any information about any other user without first obtaining such user’s consent.
Although we have adopted these Conduct Rules for the users of our Website, you understand that by using this Website, you may be exposed to Postings that are objectionable. Under no circumstances will we be liable in any way for any Postings (other than for Content developed by HealthyWage), including, but not limited to, for any errors or omissions in any Postings, or for any loss or damage of any kind incurred as a result of the use of any Postings posted, emailed or otherwise transmitted to or through this Website.
We may revoke your privileges to use this Website and/or take any other appropriate measures to enforce these Conduct Rules, if we become aware of violations.
We reserve the right to monitor some, all, or no areas of this Website for adherence to these Conduct Rules or for any other purpose. You acknowledge that by providing you with the ability to distribute Postings, we are acting as a passive conduit for such distribution and we are not undertaking any obligation or liability relating to any Postings, nor do we endorse any such Postings. Although we reserve the right to remove, without notice, any Posting for any reason, we have no obligation to review Content prior to the Content’s posting or to delete Postings that you may find objectionable or offensive. We are not responsible for maintaining a copy of any material we remove from our Website, and we are not liable for any loss you incur in the event that Content you post or transmit to our Website is been removed.
We may terminate the rights of any user to use our Website who infringes upon the intellectual property rights of another person or entity. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright holders whose rights under U.S. Copyright law are violated in connection with material appearing on the Internet. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us with the following information:
a. A physical or electronic signature of the owner of the copyright or a person authorized to act on behalf of the owner;
b. Identification of the copyrighted work(s);
c. Identification of the material that you believe infringes on your copyright(s), and information reasonably sufficient to allow us to locate the material on the Website;
d. A statement explaining that you believe, in good faith, that the use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law;
e. A statement that the information in your notification is accurate, and that you attest under penalty of perjury, that you are the copyright owner or that you are authorized to act on the copyright owner’s behalf;
f. Your name, postal address, phone number and email address;
g. The DMCA permits you to send us a counter-notice if you believe in good faith that a notice of copyright infringement has been wrongly submitted against you.
Notices and counter-notices with respect to the Website should be sent [email protected] or 24 West 55th Street, 5th Floor, New York, NY 10019.
In our sole discretion and without prior notice or liability, we may discontinue, modify or alter any aspect of the Website, including, but not limited to, (i) restricting the time the Website is available, (ii) restricting the amount of use permitted, and (iii) restricting or terminating any user's right to use the Website. You agree that any termination or cancellation of your access to, or use of, the Website may be effected without prior notice.
These Terms & Conditions apply only to this Website, and not to the websites of any other person or entity. We may provide, or third parties may provide, links to other worldwide websites or resources. You acknowledge and agree that we are not responsible for the availability of such external sites or resources, and do not endorse (and are not responsible or liable for) any content, advertising, products, or other materials on or available from such websites or resources. You further acknowledge and agree that, under no circumstances, will we be held responsible or liable, directly or indirectly, for any loss or damage that is caused or alleged to have been caused to you in connection with your use of, or reliance on, any content, advertisements, products or other resources available on any other website (regardless of whether we directly or indirectly link to such content, advertisements, products or other resources). You should direct any concerns with respect to any other website to that website's administrator or webmaster.
We may occasionally update these Terms of Service. When we do, we will also revise the "last modified" date at the top of this document. We encourage you to review these terms of service periodically. Your continued use of HealthyWage constitutes your agreement to the changed terms of service.
You agree to indemnify, hold harmless and, at HealthyWage’s option, to defend HealthyWage and its affiliates, and their officers, directors, employees, stockholders, agents and representatives from and against any claims or losses imposed on, incurred by, or asserted as a result of or relating to: (a) your use of HealthyWage or the Content or HealthyWage’s products or offerings; (b) your noncompliance with these Terms & Conditions; and/or (c) any third-party actions related to or arising from your receipt or use of HealthyWage or the Content or HealthyWage’s products or offerings, whether authorized or unauthorized under the Terms & Conditions.
HEALTHYWAGE AND THE CONTENT AND SERVICES ARE PROVIDED "AS IS." NEITHER WE NOR ANY OF OUR LICENSORS MAKE ANY EXPRESS WARRANTIES, AND WE AND EACH OF THEM DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER WE NOR ANY OF OUR LICENSORS MAKE ANY WARRANTY THAT CONTENT OR SERVICES SATISFY GOVERNMENT REGULATIONS. HEALTHYWAGE AND THE CONTENT AND SERVICES WERE DEVELOPED FOR USE IN THE UNITED STATES, AND NEITHER WE NOR ANY OF OUR LICENSORS MAKE ANY REPRESENTATION CONCERNING HEALTHYWAGE AND THE CONTENT OR SERVICES WHEN USED IN ANY OTHER COUNTRY.
NEITHER HEALTHYWAGE NOR ANY OF OUR LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT THAT THIS WEBSITE OR ANY FUNCTION CONTAINED IN THIS WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS WEBSITE OR THE SERVERS THAT MAKE THIS WEBSITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
ANY SERVICES, CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THIS WEBSITE IS DONE AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS THEREFROM. NEITHER HEALTHYWAGE NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES OR CONTENT ON THIS WEBSITE IN TERMS OF RELIABILITY, ACCURACY, OR OTHERWISE. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION OBTAINED FROM OUR STAFF OR ANYONE ELSE THROUGH THIS WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THESE TERMS & CONDITIONS.
User understands and agrees that there are certain dangers inherent to any wellness program, including a weight loss plan, and User agrees to assume all risks and promises to hold harmless and not to sue HealthyWage or any of its affiliates, owners, directors, employees, vendors, clients or partners for any claim, loss or liability that User may have arising out of the User’s use of or association with HealthyWage and/or its Services. By using HealthyWage and/or participating in any of HealthyWage's Services, User acknowledges HealthyWage's recommendation that User seeks advice from User's doctor about participating and determine, along with his/her doctor, whether User is capable of participating in and completing such Service(s) without compromising User's health.
NEITHER YOU NOR WE NOR ANY OF OUR LICENSORS MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES, EVEN IF THE PARTY KNOWS OR SHOULD KNOW THAT OTHER DAMAGES ARE POSSIBLE, OR THAT DIRECT DAMAGES ARE NOT A SATISFACTORY REMEDY. YOU AGREE THAT WE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR RESULTING FROM THE USE OF OR INABILITY TO USE THE WEBSITE OR ANY OF OUR CONTENT OR SERVICES. THE LIMITATIONS IN THIS SECTION APPLY TO YOU ONLY TO THE EXTENT THEY ARE LAWFUL IN YOUR JURISDICTION.
NEITHER YOU NOR US OR ANY OF OUR LICENSORS MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT YOU PAY HEALTHYWAGE TO PARTICIPATE IN OUR PROGRAMS.
The limitations of liability in this section do not apply to breaches of intellectual property provisions by you or your indemnification obligations relating hereunder.
Certain Content is licensed from third-parties. The licenses for some of this Content contain additional terms for which you are responsible.
Our licensors may be third party beneficiaries to this agreement pursuant to our agreements with them. To the extent our licensors are third party beneficiaries to this agreement, the rights and protections provided to us hereunder inure to their benefit. There are no other third party beneficiaries to this agreement. The parties are independent contractors, and nothing in this agreement creates an agency, partnership, or joint venture.
We make no warranties or representations whatsoever with regard to any services, merchandise and other products provided by the Third Party Sellers. You will not consider us (and we will not be construed as) a party to such transactions, whether or not we may have received some form of revenue or other remuneration in connection with such transactions, and we will not be liable for any costs or damages arising out of, either directly or indirectly, you or any other person involved or related to the transactions.
These Terms & Conditions, together with the HealthyWage Services Agreement (if applicable), constitute the entire agreement between you and HealthyWage relating to the Website, the Content and the Services. The Terms & Conditions replace any prior agreements unless such prior or subsequent agreement explicitly provides otherwise and specifically references these Terms & Conditions. If there is any conflict between these Terms & Conditions and a signed written agreement between you and us related to HealthyWage, the signed written agreement will control. If you are a participant in one of our Services or otherwise a party to the HealthyWage Services Agreement, then, in the event of any conflict between these Terms & Conditions and the HealthyWage Services Agreement, the HealthyWage Services Agreement shall control.
If we provide you with a translation of the English language version of these Terms & Conditions, the English language version of this agreement will control in the event of any conflict.
Failure to enforce any provision will not constitute a waiver of that provision. If any provision is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision's essential purpose.
Attorneys fees and other costs. User shall indemnify, save, defend, and hold HealthyWage harmless from any loss, cost, expense, or liability, including fees of accountants, attorneys, consultants, and expert witnesses reasonably incurred in defending or enforcing HealthyWage's rights in connection with this Agreement or otherwise relating to the relationship between user and HealthyWage, regardless of whether they are incurred before, during, or after any litigation or other dispute resolution procedure, and regardless of whether they relate to issues arising out of contract, tort, bankruptcy, or some other area of law.
If any provision of these Terms & Conditions shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of the rest of the Terms & Conditions.
These Terms & Conditions may be modified only by our posting of changes on this Website, or by written agreement of both parties. Each time you access this Website, you will be deemed to have accepted any such changes.
We may assign our rights and obligations under these Terms & Conditions. These Terms & Conditions will inure to the benefit of our successors, assigns and licensees.
Except where prohibited by law, as a condition of (a) using this website and/or (b) participating in any HealthyWage program, participant agrees that: (1) any and all disputes and causes of action arising out of or connected with (a) this Agreement, including the breach, termination or validity thereof, and/or (b) the participant's use of the website and/or (c) participant's participation in one or more HealthyWage programs, or any prizes awarded in connection therewith, and/or (d) the relationship between the user and HealthyWage, shall be resolved individually, without resort to any form of class action, and exclusively by a sole arbitrator in a binding, non-reviewable and non-appealable proceeding conducted in accordance with the 2007 Non-Administered Arbitration Rules of the International Institute for Conflict Prevention & Resolution, 575 Lexington Ave., New York, NY 10022, (2) any such proceeding shall be held in the borough of Manhattan in New York, New York, USA, and (3) the arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., and judgment upon such arbitration award may be entered in any court in New York, New York, USA. Under no circumstances will participant be permitted to obtain awards for, and participant hereby waives, to the extent permitted by law, all rights to claim statutory, punitive, incidental, invasion of privacy or consequential damages, or any other damages, including attorneys’ fees, other than participant’s actual out-of-pocket expenses (i.e., fees associated with registering for HealthyWage), and participant further waives all rights to have damages multiplied or increased. All issues and questions concerning the construction, validity, interpretation and enforceability of this Agreement, or the rights and obligations of participants and HealthyWage, shall be governed by, and construed in accordance with, the substantive laws of the State of New York, USA without regard to New York choice of law rules. To the extent any party may be entitled to seek the intervention of a court, THE EXCLUSIVE VENUES FOR ANY DISPUTE RELATING TO THIS AGREEMENT ARE THE STATE AND FEDERAL COURTS IN NEW YORK COUNTY, NEW YORK. YOU AND HEALTHYWAGE CONSENT TO THE PERSONAL JURISDICTION OF THESE COURTS.