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Terms


Diet Grader Member Service Agreement

1. NOT ALL NUTRITION OR EXERCISE PROGRAMS ARE SUITABLE FOR EVERYONE. THE MATERIAL IN THE DIET GRADER WEBSITE IS PROVIDED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED AS MEDICAL ADVICE. THE INFORMATION CONATINED IN THIS WEBSITE SHOULD NOT BE USED TO DIAGNOSE OR TREAT ANY ILLNESS, METABOLIC DISORDER, DISEASE, OR HEALTH PROBLEM. ALWAYS CONSULT YOUR PHYSICIAN OR HEALTH CARE PROVIDER BEFORE BEGINNING ANY NUTRITION OR EXERCISE PROGRAM. USE OF THE PROGRAMS, ADVICE, AND INFORMATION CONTAINED IN THIS WEBSITE IS AT THE SOLE CHOICE AND RISK OF THE READER.

2. SERVICES PROVIDED. DIET GRADER OPERATES AN ONLINE, COMPUTERIZED INTERACTIVE INFORMATION, COMMUNICATION AND TRANSACTION SYSTEM (THE “SYSTEM”) WHICH PROVIDES ACCESS TO A VARIETY OF NUTRITIONAL INFORMATION. DIET GRADER WILL PROVIDE TO CUSTOMER THE SERVICES (THE “SERVICES”). THE TERM “CUSTOMER” SHALL, WHEN THE CONTEXT PERMITS, INCLUDE CUSTOMER’S OFFICERS, EMPLOYEES, AGENTS AND CONTRACTORS.

3. DISCLAIMER OF WARRANTY. CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICES AND THE SYSTEM AND THE MATERIAL THEREIN AND STORAGE OF INFORMATION WHICH APPEARS IN THE SYSTEM IS AT CUSTOMER’S SOLE RISK. THE SERVICES AND THE SYSTEM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR NONINFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. NO ADVICE OR INFORMATION GIVEN BY DIET GRADER, ITS CONTRACTORS, AGENTS, AFFILIATES OR VENDORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE A WARRANTY.

4. INDEMNITY. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD DIET GRADER, ITS AFFILIATES, CONTRACTORS, AGENTS, VENDORS, ITS PARENT COMPANY FIT LAUNCH AND THEIR RESPECTIVE EMPLOYEES HARMLESS FROM ANY AND ALL LIABILITIES, COSTS AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES, RELATED TO OR ARISING FROM: (A) ANY VIOLATION OF THIS AGREEMENT BY CUSTOMER, (B) THE USE OF THE SYSTEM OR THE INTERNET OR THE PLACEMENT OR TRANSMISSION OF ANY MESSAGE, INFORMATION OR OTHER MATERIALS ON THE SYSTEM OR THE INTERNET BY CUSTOMER, (C) ACTS OR OMISSIONS OF CUSTOMER IN CONNECTION WITH THE CONSTRUCTION, INSTALLATION, MAINTENANCE, PRESENCE, USE OR REMOVAL OF SYSTEMS, CHANNELS, OR TERMINAL EQUIPMENT OR SOFTWARE NOT PROVIDED BY DIET GRADER WHICH ARE CONNECTED OR ARE TO BE CONNECTED TO THE SYSTEM; AND (D) CLAIMS FOR INFRINGEMENT OF PATENTS ARISING FROM THE USE OF EQUIPMENT AND SOFTWARE, APPARATUS AND SYSTEMS NOT PROVIDED BY DIET GRADER IN CONNECTION WITH THE SERVICES AND THE SYSTEM.

5. RIGHT TO RESTRICT ACCESS. DIET GRADER MAY DENY CUSTOMER ACCESS TO ALL OR PART OF THE SYSTEM WITHOUT NOTICE IF CUSTOMER ENGAGES IN ANY CONDUCT OR ACTIVITIES THAT DIET GRADER IN ITS SOLE DISCRETION BELIEVES VIOLATES ANY OF THE TERMS AND CONDITIONS IN THIS AGREEMENT. IF DIET GRADER DENIES CUSTOMER ACCESS TO THE SYSTEM BECAUSE OF SUCH A VIOLATION, THE CUSTOMER SHALL HAVE NO RIGHT (1) TO ACCESS THROUGH DIET GRADER ANY MATERIALS STORED ON THE SYSTEM, (2) TO OBTAIN ANY CREDIT(S) OTHERWISE DUE TO CUSTOMER, AND SUCH CREDIT(S) WILL BE FORFEITED, (3) TO ACCESS THIRD PARTY SERVICES, MERCHANDISE OR INFORMATION ON THE SYSTEM THROUGH DIET GRADER, AND DIET GRADER SHALL HAVE NO OBLIGATION TO NOTIFY ANY THIRD-PARTY PROVIDERS OF SERVICES, MERCHANDISE OR INFORMATION NOR ANY RESPONSIBILITY FOR ANY CONSEQUENCES RESULTING FROM LACK OF NOTIFICATION OR RESTRICTION OF CUSTOMER’S ACCESS.

6. SECURITY. ACCESS TO THE SYSTEM, AND TO CERTAIN ONLINE TRANSACTIONS INVOLVES THE USE OF IDENTIFICATION NUMBERS, PASSWORDS, CHARGE OR DEBIT ACCOUNTS OR OTHER INDIVIDUALIZED NONPUBLIC INFORMATION (“PRIVATE DOCUMENTATION”). CUSTOMER SHALL USE ITS BEST EFFORTS TO PREVENT UNAUTHORIZED USE OF THE SYSTEM OR OF ANY PRIVATE DOCUMENTATION, AND SHALL PROMPTLY REPORT TO DIET GRADER ANY SUSPECTED UNAUTHORIZED USE OR OTHER BREACH OF SECURITY. CUSTOMER SHALL BE RESPONSIBLE FOR ANY UNAUTHORIZED USE OF ITS IDENTIFICATION NUMBERS OR PASSWORDS UNTIL DIET GRADER RECEIVES WRITTEN NOTICE OF A BREACH OF SECURITY AND A REQUEST TO BLOCK FURTHER ACCESS FOR SUCH NUMBERS AND PASSWORDS.DIET GRADER SHALL NOT BE LIABLE FOR ANY UNAUTHORIZED USE OF CHARGE, DEBIT OR OTHER CREDIT ACCOUNTS.

7. TERM AND TERMINATION. THIS AGREEMENT SHALL BE AUTOMATICALLY RENEWED FOR SUCCESSIVE ONE-MONTH PERIODS, UNTIL CANCELED BY CUSTOMER. DIET GRADER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT IMMEDIATELY IN THE EVENT OF A BREACH OF ANY OF ITS TERMS BY CUSTOMER OR WITHOUT CAUSE.

8. ENTIRE AGREEMENT; GUIDELINES. ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS, CONTRACTS, PROMISES, REPRESENTATIONS, IF ANY, BETWEEN THE PARTIES OR THEIR REPRESENTATIVES RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT ARE MERGED INTO THIS AGREEMENT AND THE APPLICATION FORM(S). THESE TERMS AND CONDITIONS, ALONG WITH ANY OPERATING RULES OR GUIDELINES PUBLISHED OVER THE SYSTEM BY DIET GRADER, CONSTITUTE THE ENTIRE AGREEMENT BETWEEN DIET GRADER AND CUSTOMER WITH RESPECT TO THE SERVICES. NO AMENDMENT TO THIS AGREEMENT SHALL BE EFFECTIVE UNLESS ACKNOWLEDGED IN WRITING BY DIET GRADER. CUSTOMER AGREES TO COMPLY WITH DIET GRADER’S OPERATING RULES AND GUIDELINES, WHICH MAY BE AMENDED FROM TIME TO TIME AT DIET GRADER’S SOLE DISCRETION.

9. GOVERNING LAW; JURISDICTION AND VENUE. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WASHINGTON, EXCLUSIVE OF CHOICE OF LAW RULES. VENUE FOR ANY ACTION ARISING OUT OF OR IN WASHINGTON WITH THIS AGREEMENT SHALL BE IN SNOHOMISH COUNTY, WASHINGTON. THE PARTIES EACH HEREBY CONSENT TO THE JURISDICTION AND VENUE IN SNOHOMISH AND WAIVE ANY OBJECTIONS TO SUCH JURISDICTION AND VENUE.

10. ENFORCEABILITY. IF ANY PORTION OF THIS AGREEMENT IS WHOLLY OR PARTIALLY UNENFORCEABLE, FOR ANY REASON, SUCH UNENFORCEABILITY SHALL NOT AFFECT THE BALANCE HEREOF.

11. ASSIGNMENT. CUSTOMER MAY NOT ASSIGN ITS RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT WITHOUT THE PRIOR WRITTEN CONSENT OF DIET GRADER, WHICH MAY BE WITHHELD IN DIET GRADER’S SOLE DISCRETION.

12. NO WAIVER. DIET GRADER’S FAILURE TO INSIST UPON OR ENFORCE ANY PROVISION OF THIS AGREEMENT SHALL NOT BE CONSTRUED AS A WAIVER OF ANY PROVISION OR RIGHT.

13. WRITTEN AGREEMENT. THIS AGREEMENT (AND ANY AMENDMENTS HERETO) REPRESENTS A BINDING WRITTEN CONTRACT, WHETHER EXECUTED BY EACH PARTY ON PAPER OR ACCEPTED BY ELECTRONIC COMMUNICATION.