Last Modified on December 5, 2018
IMPORTANT: PLEASE READ THE TERMS of Use CAREFULLY BEFORE CONTINUING to use this website and mobile Application.
SECTION 20 OF THIS TERMS OF USE AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IF YOU LIVE IN THE UNITED STATES, THIS SECTION AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE DISPUTES THAT YOU MAY HAVE WITH US. PLEASE READ IT CAREFULLY.
THE CONTENTS OF THE SERVICE ARE FOR GENERAL INFORMATION, REFERENCE, AND ENTERTAINMENT PURPOSES. OPTAVIA, NOR ANY OF THEIR OWNERS, AFFILIATES, OR LICENSORS, ARE YOUR MEDICAL DOCTORS AND ARE NOT PROVIDING YOU WITH MEDICAL ADVICE IN ANY WAY REGARDING ANY CONDITION THAT YOU MAY HAVE. THE SERVICE IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT.
PLEASE SEEK MEDICAL ADVICE FROM A QUALIFIED PROFESSIONAL BEFORE BEGINNING ANY HEALTHCARE-RELATED ACTIVITIES.
This Terms of Use (the “Agreement”) applies to the Habits of Health website and mobile application (the “Service”) provided by OPTAVIA, LLC (“OPTAVIA”).
You must be at least 18 years of age to access and use the Service.
1. Acceptance of Terms and Conditions
By continuing to use the Service, you agree as follows:
1.1 You understand and intend that this Agreement is a legally binding agreement and the equivalent of a signed, written contract;
1.2 You will use the Service in a manner consistent with applicable laws and regulations and in accordance with the terms and conditions in this Agreement as it may be amended by OPTAVIA from time to time; and
1.3 You understand, accept, and have received this Agreement and its terms and conditions, and acknowledge and demonstrate that you can access this Agreement.
If you do not agree with the terms and conditions in this Agreement, please discontinue all further use of the Service.
2. Your Account
2.1 Your Account. In order to use the Service, you need to have an account, either by registering a new account on the Service or by connecting an existing social media account with the Service.
2.2 Age Restrictions. You may only create an account if you are at least 18 years old, or the age of majority in your province, territory or country. If you are still a minor in your jurisdiction, your parent or legal guardian must establish an account with us in order for you to access and use the Service, solely with the consent of your parent or legal guardian.
2.3 Sole Responsibility. You are solely responsible for the activity that occurs on your account. You agree to keep your account and device secure and to notify OPTAVIA immediately of any breach of security or unauthorized use of your account.
2.4 Authorization to Contact You. By creating an account with us, you authorize OPTAVIA to contact you, by push notification, by e-mail, telephone and/or mobile telephone number (including use of automated dialing equipment), text (SMS) message, or any other means of communication that your device may be capable of receiving, in accordance with our Privacy Policy.
2.5 No Transfers. You may not buy, sell, give, or trade any account, nor attempt to buy, sell, give, or trade any account. Your account is only licensed to you and is not transferable.
2.6 Account Suspension. OPTAVIA may, at our sole discretion, immediately suspend or terminate your access to the Service should your conduct, in our sole determination, fail to conform with this Agreement or for any other reason.
2.7 Data Charges. You agree that you are responsible for any data charges you incur through use of the Service.
3. OPTAVIA’s License to You
OPTAVIA grants you a non-exclusive, non-transferable and limited license to access and use the Service. This license is conditioned on your continued compliance with the terms and conditions in this Agreement. You may not rent, lease, lend, sell, transfer redistribute, or sublicense the Service.
4. Your License to OPTAVIA
4.1 Any communications or material of any kind that you email, post, or otherwise transmit to OPTAVIA or the public on or using the Service, including photographs, chat, emails, comments, voice recordings, data, questions, comments, or suggestions are known as your “Content”.
OPTAVIA does not own your Content. By posting Content, you represent (i) that you are the owner of the Content or have all of the necessary rights to share them, and (ii) give OPTAVIA permission to use, re-use, copy, adapt, abridge, amend, distribute, modify, translate, publish, perform, display, develop, reproduce, communicate to the public and to make your Content otherwise available in any form and/or by any media (whether now known or hereafter devised), including through any on-demand or broadcast service, whether on a commercial or non-commercial basis anywhere in the world.
4.2 Conduct Policy. You are responsible for your conduct as a user of the Service. You agree that you will not engage in conduct (including the sharing of Content) which:
4.2.1 is threatening, bullying, defamatory, abusive, obscene, lewd, sexually provocative or suggestive, pornographic, or which in any manner could give rise to any civil or criminal liability under applicable law;
4.2.2 is or could be taken as slurs, hate speech, or attacks on individuals or groups on the basis of race, color, gender, age, religion, national origin, disability, sexual preferences, or gender identity;
4.2.3 constitutes spam (sending the same message multiple times or to multiple people, or sharing or sending the same content multiple times, will be treated as spam);
4.2.4 is a solicitation or advertisement for any lewd or inappropriate personal conduct, commercial product, or activity;
4.2.5 encourages or constitutes behavior that does not support a safe and comfortable environment for all users, which conduct may include but not be limited to bullying, vigilantism, engaging in any conduct or activity that is threatening, harmful, harassing, abusive, vulgar, hateful, defamatory, lewd, sexually provocative, suggestive, or explicit, inflammatory, profane, racially or ethnically objectionable or discriminatory, or in any manner encourages inappropriate, disrespectful, abusive, or unlawful conduct or otherwise makes the Service an uncomfortable experience for anyone;
4.2.6 restricts, inhibits, or discourages any other user from using the Service;
4.2.7 hacks, modifies or otherwise makes use of automation software (bots) or any other unauthorized third-party software designed to modify the Service experience;
4.2.8 violates any local, state, federal or international laws or gives rise to civil liability;
4.2.9 violates or infringes any rights of third parties (including but not limited to copyright, trademark, rights of privacy or publicity, defamation or any other proprietary right);
4.2.10 imposes an unreasonable or disproportionately large load on the Service or otherwise interferes with the Service;
4.2.11 is a “chain letter,” or constitutes “junk mail”;
4.2.12 specifies or claims that that you are affiliated with OPTAVIA when you are not, including without limitation an “Administrator,” “Moderator,” or any other employee or agent of OPTAVIA;
4.2.13 requests account login information from other users;
4.2.14 “spoofs” (use of any means to disguise your online identity or alter original attribute information, including, but not limited to duplicate accounts);
4.2.15 uses or possesses programs to “crack” the Service or other Internet security tools;
4.2.16 contains, or uploads files that contain, viruses, Trojan horses, worms, corrupted files or data, or any other similar software or programs that may damage or inhibit the operation of the Service; or
4.2.17 anything else that OPTAVIA, in its sole determination, deems offensive or harmful to the Service or to OPTAVIA’s integrity or business.
5. Content on the Service
5.1 Access to Content. Service content, including any of your or other users’ Content, OPTAVIA-owned content, and all other text, videos, music, and other content contained within the Service (collectively, the “Service Content”), is provided to you as-is. You may access this Service Content for your information and personal use solely as intended through the provided functionality of the Service and as permitted under this Agreement.
You may not copy, download, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Service Content for any other purposes without the prior written consent or permission of OPTAVIA (such as when sharing of Content on social media is offered through the Service) or the respective licensors of the Service Content. OPTAVIA and its licensors reserve all rights not expressly granted in and to the Service and the Service Content.
5.2 Exposure to Content. You understand that when using the Service, you may be exposed to Service Content from a variety of sources, and that OPTAVIA is not responsible for prescreening, monitoring, editing, or removing such Service Content, nor for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Service Content.
You understand that OPTAVIA is not responsible for the conduct of any user of the Service. You understand that you may be exposed to Service Content that is inaccurate, offensive, indecent, or objectionable.
6. Modification, Termination, and Monitoring of the Service
OPTAVIA reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that OPTAVIA will not be liable to you or any third party for any modification, suspension, or discontinuance of the Service, nor for any refunds subsequent to such modification, suspension, or discontinuance.
OPTAVIA reserves the right to monitor use of the Service to determine compliance with this Agreement, as well as the right to edit or remove any information or materials, in whole or in part, at its sole discretion. We reserve the right to refuse access to the Service to anyone, for any reason, at any time.
7. Support Services
OPTAVIA may, in its sole discretion, provide you with support services related to the Service (“Support Services”). OPTAVIA is not required to provide Support Services, unless otherwise required by applicable law. No failure to provide Support Services will be a default of OPTAVIA under this Agreement.
OPTAVIA support may be reached via email at support@optavia.com.
8. Electronic Signatures
You agree to be bound by any assent or agreement you transmit to OPTAVIA using the Service, including but not limited to any consent you give to receive communications from OPTAVIA solely through electronic transmission. You agree that, when in the future you click on an “I agree,” “I consent” or other similarly worded “button” or entry field in the Service, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature.
9. Security of Data Transmission and Storage
OPTAVIA handles personal information and other data in accordance with our Privacy Policy.
However, electronic communications using the Service may not always be encrypted. You acknowledge that there is a risk that data, including email, electronic communications, and personal data, may be accessed by unauthorized third parties when communicated between you and OPTAVIA or between you and other parties.
OPTAVIA and its affiliates, and agents are permitted, but not obligated, to review or retain your Content. OPTAVIA may monitor your Content to evaluate the quality of service you receive, your compliance with this Agreement, the security of the Service, or for other reasons. You agree that such monitoring activities will not entitle you to any cause of action or other right with respect to the manner in which OPTAVIA or its affiliates or agents monitor your Content and enforces or fails to enforce the terms of the Agreement. In no event will OPTAVIA or any of its affiliates or agents be liable for any costs, damages, expenses, or any other liabilities incurred by you as a result of monitoring activities by OPTAVIA or its affiliates or agents.
10. Hyperlinks
The Service may contain links to other sites and software applications (the “Linked Services”). OPTAVIA may not control the Linked Services, and OPTAVIA and its affiliates and agents make no representations whatsoever concerning the content, accuracy, security, or privacy of those Linked Services. The fact that OPTAVIA has provided a link to an external location is not an endorsement, authorization, sponsorship, or affiliation with respect to such Linked Services, its owners or its providers. There are risks in using any information, software, or products found on the Internet, and OPTAVIA cautions you to make sure you understand these risks before retrieving, using, relying upon, or purchasing anything via the Internet. You agree that under no circumstances will you hold OPTAVIA or its affiliates or agents liable for any loss or damage caused by use of or reliance on any content, goods, or services available on Linked Services.
11. Trademarks and Copyrights
The Service is owned by OPTAVIA or its affiliates or agents, and is protected by United States copyright laws and international treaty provisions. All content, trademarks, services marks, trade names, logos, and icons are proprietary to OPTAVIA or its affiliates or agents. Nothing contained in the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark displayed in the Service without the written permission of OPTAVIA or such third party that may own the trademarks displayed in the Service. Your use of the trademarks displayed in the Service, or any other content in the Service, except as provided herein, is strictly prohibited.
Images and other intellectual property displayed through the Service are either the property of, or used with permission by, OPTAVIA or its affiliates or agents. You are prohibited from using or authorizing the use of these images unless specifically permitted under this Agreement. Any unauthorized use of the images may violate copyright laws, trademark laws, the laws of privacy and publicity, or other regulations and statutes.
12. Digital Millennium Copyright Act
If you are a copyright owner or their agent, and believe that any content on the Service infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) to our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the us to contact you, such as an address, telephone number, and, if available, an electronic mail;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Our Copyright Agent may be reached by physical or electronic mail at the following addresses:
OPTAVIA
11444 Cronhill Drive
Owings Mills, MD 21117
support@optavia.com
13. Disclaimer of Warranties
YOUR USE OF THE SERVICE IS ENTIRELY AT YOUR SOLE RISK. THE SERVICE IS PROVIDED BY OPTAVIA ON AN “AS IS” BASIS. OPTAVIA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. OPTAVIA MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (iii) THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE BENEFICIAL, ACCURATE, OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OPTAVIA, OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING THE SERVICE NOT EXPRESSLY STATED IN THIS AGREEMENT.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.
14. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT OPTAVIA WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF OPTAVIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE OR ANY OTHER MATTER RELATING TO THE SERVICE.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of OPTAVIA and its affiliates will be limited to the fullest extent permitted by law.
15. California Residents: General Release
If you are a California resident, you agree to waive California Civil Code Section 1542, and any similar provision in any other jurisdiction (if you are a resident of such other jurisdiction), which states: “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.”
16. Indemnification
You agree to indemnify and hold OPTAVIA and its affiliates, agents, employees, and licensors harmless from any claim, demand, loss, costs, or expense, including attorneys’ fees, made by any person arising out of your violation of this Agreement, state or federal securities laws or regulations, or any other person’s rights, including but not limited to infringement of any copyright or violation of any proprietary or privacy right. Under no circumstances, including but not limited to a negligent act, will OPTAVIA or its affiliates or agents be liable for any damages of any kind that result from the use of, or the inability to use, the Service.
17. Your Personal Information
Personal and certain other information is subject to our Privacy Policy. As a condition of using the Service you agree to the terms of the Privacy Policy, as it may be changed from time to time. Our Privacy Policy, which is incorporated here by reference, is located at here. You agree that your use of the Service is subject to the Privacy Policy.
18. Disclosures Required by Law
OPTAVIA reserves the right at all times to disclose any information, including personally identifiable information about you, as necessary to satisfy any applicable law, regulation, legal process or governmental request. OPTAVIA reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing OPTAVIA to disclose the identity of any user believed to be in violation of this Agreement.
BY ACCEPTING THIS AGREEMENT, YOU WAIVE ALL RIGHTS AND AGREE TO HOLD OPTAVIA HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY OPTAVIA DURING OR AS A RESULT OF ITS INVESTIGATIONS OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER OPTAVIA OR LAW ENFORCEMENT AUTHORITIES.
19. Governing Law
The Agreement, and all future agreements you enter into with OPTAVIA, unless otherwise indicated on such other agreement, will be governed by the law of the State of Maryland, without regard to conflicts of law principles thereof. This is the case regardless of whether you reside or transact business with OPTAVIA or any of its affiliates or agents in the State of Maryland or elsewhere. Unless a dispute would be governed by the terms of Section 20 below, you agree to submit to the personal and exclusive jurisdiction of the courts located within Anne Arundel County, Maryland.
20. Binding Arbitration
20.1 Arbitration Procedures. You and OPTAVIA agree that, except as provided in Section 4 below, all disputes, controversies and claims related to this Agreement (each a “Claim”), will be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party will be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this Agreement. In the event of a conflict between the terms set forth in this Binding Arbitration Section and the JAMS Rules, the terms in this Binding Arbitration Section will control and prevail.
Except as otherwise set forth in Section 20.4 below, you may seek any remedies available to you under federal, state, or local laws in an arbitration action. As part of the arbitration, both you and OPTAVIA will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration will be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this Agreement, (i) you and OPTAVIA may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision will be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND OPTAVIA WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
20.2 Location: The arbitration will be conducted in Anne Arundel County, Maryland, unless the parties agree to video, phone, or internet connection appearances.
20.3 Limitations: You and OPTAVIA agree that any arbitration will be limited to the Claim between OPTAVIA and you individually. YOU AND OPTAVIA AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION CAN BE JOINED WITH ANY OTHER ARBITRATION.
20.4 Exceptions to Arbitration. You and OPTAVIA agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of your or OPTAVIA’s intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
20.5 Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be apportioned pursuant to the JAMS Rules.
20.6 You and OPTAVIA agree that if any portion of this Section is found illegal or unenforceable (except any portion of Section 20.4), that portion will be severed and the remainder of the Section will be given full force and effect. If Section 20.4 is found to be illegal or unenforceable, then neither you nor OPTAVIA will elect to arbitrate any Claim falling within that portion of Section 20.4 found to be illegal or unenforceable and such Claim will be exclusively decided by a court of competent jurisdiction within Anne Arundel County, Maryland, United States of America, and you and OPTAVIA agree to submit to the personal jurisdiction of that court.
21. Miscellaneous Terms
21.1 Agreement Revisions. This Agreement may only be revised in writing by OPTAVIA, or by a new version published by OPTAVIA on the Service.
21.2 Force Majeure. OPTAVIA is not liable for any delay or failure to perform resulting from causes outside the reasonable control of OPTAVIA, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond OPTAVIA’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor, or materials.
21.3 No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and OPTAVIA as a result of this Agreement or your use of the Service.
21.4 OPTAVIA may assign this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without OPTAVIA’s prior written consent, and any unauthorized assignment by you is null and void.
21.5 If any part of this Agreement is determined to be void, invalid or unenforceable, then that portion will be severed, and the remainder of the Agreement will be given full force and effect.
21.6 Attorneys’ Fees. In the event any litigation is brought by either party in connection with this Agreement, the prevailing party in such litigation will be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
21.7 No Waiver. OPTAVIA’s failure to enforce any provision of this Agreement will in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
21.8 Equitable Remedies. You hereby agree that OPTAVIA would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we will be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
21.9 Entire Agreement. This Agreement, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Service.
I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE FOREGOING TERMS OF USE AGREEMENT AND AGREE THAT MY USE OF THE SERVICE IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS TERMS OF USE AGREEMENT.