TERMS AND CONDITIONS OF USE AGREEMENT
This Terms and Conditions of Use Agreement (“Agreement”) is entered into among Front Street Digital, a Delaware limited liability company (“The Heart Healthy”) and you the user of the Site (“you” or “your”) and governs your use of the Site located at www.thehearthealthy.com and its subpages (“Site”). References in this Agreement to “we,” “us” or “our” mean The Heart Healthy and references to “you” mean you the user of the Site. The Heart Healthy, via the Site, provides you with access to The Heart Healthy’s selection of articles, Internet content, and experiences, as well as information provided by third parties.
You represent that you are of legal age to form a binding contract. You must be at least eighteen (18) years old to be eligible to use the Site. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE CONTINUING TO USE THE SITE.
Term and Termination. This Agreement is automatically renewed each time you visit the Site and/or use any of our services. This Agreement may be terminated by The Heart Healthy, effective immediately if you breach any of the provisions set forth in this Agreement, as determined by The Heart Healthy in its sole and absolute discretion. Termination shall be without prejudice to any other right or remedy to which we may be entitled under this Agreement or at law. You acknowledge that if we, in our sole discretion, determine you to be in breach of this Agreement, or upon any other termination of this Agreement, we may restrict, suspend, or terminate your access to all or any part of the Site, with or without notice.
License. We grant you a limited, revocable, non-exclusive license to access the Site in order to view the Site’s content and to participate by making comments on information found throughout the Site. Any other use of the Site is expressly prohibited. This limited license does not include any right of collection, aggregation, copying, duplication, display or derivative use of the Site nor any right of use of data mining, robots, spiders or similar data gathering and extraction tools without our prior written permission; provided, however, that a limited exception from the foregoing exclusion is provided to general purpose Internet search engines and non-commercial public archives that use tools to gather information for the purpose of displaying hyperlinks to the Site.
Prohibited Conduct. You agree that you will not (i) submit, transmit or facilitate the distribution of information or content that is harmful, abusive, racially or ethnically offensive, vulgar, sexually explicit, defamatory, infringing, invasive of personal privacy or publicity rights; (ii) use the Site for any unauthorized use including but not limited to chain letters, junk mail, “spamming,” telephone solicitations in violation of any state or federal Do-Not-Call registry, or as a basis for any use or distribution lists to any person who has not given specific permission to be included in such a process; (iii) submit, transmit, promote or distribute information or content that is illegal; (iv) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Site; (v) upload invalid data, viruses, worms, or other software agents through the Site; (vi) use any robot, spider, scraper or other system to access the Site for any purpose without our express written permission; (vii) impersonate another person or otherwise misrepresent your affiliation with a person or entity, conduct fraud, hide or attempt to hide your identity; (viii) submit, upload, post, e-mail, transmit or otherwise make available any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; (ix) interfere with the proper working of the Site; or, (x) bypass the measures we may use to prevent or restrict access to the Site. The Heart Healthy reserves the right to terminate your access to the Site immediately and without notice, if it becomes aware and determines, in its sole discretion, that you are violating any of the foregoing guidelines.
Accuracy of Information; Third Party Content. We make no, and disclaim all, express or implied representations and warranties as to the accuracy, correctness, reliability or otherwise with respect to any information on the Site, and assume no liability or responsibility for any omissions or errors (including, without limitation, typographical errors and technical errors) in the information contained on the Site. The information provided on the Site is compiled from a variety of sources. The Heart Healthy does not endorse or recommend any merchants or any products or services or other information that may be available on the Site. The content of our articles is intended for information and entertainment only and does not constitute advice. Reliance on any information provided by the Site and those appearing on the Site is solely at your own risk. Under no circumstances will The Heart Healthy be liable for any loss or damage caused by your reliance on information obtained through the Site. It is your responsibility to evaluate the accuracy, completeness, or usefulness of any information, opinion, etc., or other content available through the Site.
Additionally, The Heart Healthy does not endorse third party Sites or third party Sites’ products or services and we are not affiliated with the operators of such Sites. The Heart Healthy hereby expressly disclaims any representations regarding the content or accuracy of materials on such third-party Sites. If you decide to access linked third-party Sites, you do so at your own risk. The Heart Healthy reserves the right to revoke any link to a third party provided, by you or by The Heart Healthy, at any time in its sole discretion.
Intellectual Property. The content, organization, graphics, images, videos, designs, compilations, and other matters related to the Site are protected under applicable U.S. and international copyright, trademark and intellectual property laws. “The Heart Healthy” and our logos and other marks are either trademarks, service marks or registered trademarks or service marks of The Heart Healthy (“Trademarks”). The posting of information or materials on the Site by us does not constitute a waiver of any rights in any Trademarks, documentation, software, contents, graphics, designs, data, computer codes, ideas, know-how, “look and feel,” compilations, magnetic translations, digital conversions, video, and other materials included within the Site and related to the Site, and all modifications and derivative works thereof, and all intellectual property rights related thereto (“Intellectual Property”) or such information and materials. You shall not challenge, contest or otherwise impair The Heart Healthy’s ownership of the Site and the content therein or the validity or enforceability of The Heart Healthy’s rights in the Intellectual Property. We reserve the right in our sole discretion to edit or delete any information or other content appearing on the Site at any time without notice. Nothing contained in this Agreement shall be construed by implication, estoppel or otherwise as granting to you an ownership interest in the Intellectual Property or any copyright, trademark, patent or other intellectual property right of The Heart Healthy or any third party.
Copyright Infringement. The Heart Healthy has in place certain procedures regarding allegations made by third parties regarding alleged copyright infringement occurring on the Site, as provided for in The Heart Healthy’s Copyright Policy. The Heart Healthy has adopted a policy that allows for legitimate owners of copyrighted material(s) (“Works”) to request that The Heart Healthy remove any content deemed to be infringing upon the owner’s Works, provided that the content posted on The Heart Healthy does not represent a fair use of the Works. If The Heart Healthy becomes aware that you are posting Works which infringe on a legitimate owner’s copyrighted material(s), The Heart Healthy shall not be liable for your infringing activities and, following an investigation of any allegations of copyright infringement, The Heart Healthy will take down the infringing material and take steps to remove your access to the Site.
International Users. If you use the Site from outside of the United States, your connection will be through and to servers located in the United States and all information you provide will be processed and maintained in our web servers and internal systems located within the United States. By using the Site, you authorize the export of personal information to the United States and its storage and use as specified above when you provide such information to us.
Disclaimer. THE SITE AND ALL CONTENT, MATERIALS, SERVICES AND PRODUCTS CONTAINED IN THE SITE ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND. WE DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND NON-INFRINGEMENT.IN ADDITION, THE HEART HEALTHY DISCLAIMS (i) ANY ENDORSEMENT OF OR LIABILITY FOR CONTENT AND HYPERLINKS OR ANY SERVICES PROVIDED BY AFFILIATES OR MERCHANTS THROUGH THE SITE; (ii) ANY LIABILITY FOR INACCURACY, INCOMPLETENESS OR TIMELINESS OF THE CONTENT ON THE SITE; (iii) ANY LIABILITY FOR THE TRANSMISSION OF VIRUSES OR THE OCCURRENCE OF DATA CORRUPTION; AND (iv) ANY LIABILITY FOR OTHER DAMAGES THAT MAY RESULT FROM THE TRANSMISSION, USE OR INABILITY TO USE THE SITE OR CIRCUMSTANCES OVER WHICH THE HEART HEALTHY HAS NO PRACTICAL CONTROL. YOU UNDERSTAND AND AGREE THAT THE OPERATION OF THE SITE MAY INVOLVE BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. THE HEART HEALTHY SHALL HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF THE SITE OR USE OF ANY INFORMATION, PRODUCTS OR SERVICES ACCESSED THROUGH THE SITE. NO CONTENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SITE SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE BY THE HEART HEALTHY OF ANY KIND.
THE HEART HEALTHY IS NOT RESPONSIBLE FOR THE CONTENTS OF ANY INFORMATION POSTED BY ANY THIRD PARTY ON THE SITE, INCLUDING BUT NOT LIMITED TO ANY LINKED SITES OR ANY LINK CONTAINED IN A LINKED SITE, OR ANY CHANGES OR UPDATES TO SUCH SITES.
Limitation of Liability. THE HEART HEALTHY SHALL NOT BE RESPONSIBLE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR NOT, THAT ARE IN ANY WAY RELATED TO THIS AGREEMENT, ANY VIRUSES AFFECTING THIS SITE, THE USE OR INABILITY TO USE THIS SITE, THE RESERVATIONS, PRODUCTS OR SERVICES PURCHASED FROM MERCHANTS, LOSS OF GOODWILL OR PROFITS, LOST BUSINESS, HOWEVER CHARACTERIZED, AND/OR FROM ANY OTHER CAUSE WHATSOEVER. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE HEART HEALTHY’S AGGREGATE LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT YOU PAID, IF ANY, TO THE HEART HEALTHY IN THE MATTER GIVING RISE TO YOUR CLAIM.
Indemnity. You will indemnify, defend and hold us, our subsidiaries, parents, affiliates, officers, directors, managers, members, legal representatives, agents, and other partners and employees, harmless from loss, liability, costs, damages or expenses from any and all claims, actions and suits, whether groundless or otherwise, and from and against any and all claims, liabilities, judgments, losses, damages, costs, charges, attorney’s fees, and other expenses of every nature and character arising out of or related to (a) your use of the Site and (b) your breach of this Agreement and/or any breach of your representations and warranties set forth in this Agreement
Arbitration. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. Subject to the arbitration provision below, any legal actions related to this Agreement and/or the Site, or your use thereof, shall be brought and conducted in San Diego County, California, and you hereby consent to such jurisdiction and authorize and accept service of process sufficient for personal jurisdiction in any action against him as contemplated by this section. Any dispute, controversy or claim arising out of or relating to this Agreement or the breach or termination hereof shall be settled by binding arbitration conducted by JAMS/Endispute (“JAMS”) in accordance with JAMS Comprehensive Arbitration Rules and Procedures (“Rules”). The arbitration shall be heard by one arbitrator to be selected in accordance with the Rules, in San Diego County, California. Judgment upon any award rendered may be entered in any court having jurisdiction thereof. All parties waive the right, if any, to obtain any award for exemplary or punitive damages or any other amount for the purpose or imposing a penalty from the other in any arbitration or judicial proceeding or other adjudication arising out of or with respect to this Agreement, or any breach hereof, including any claim that said Agreement, or any part hereof, is invalid, illegal or otherwise voidable or void.
Class Action Waiver. You agree that you have voluntarily chosen to visit The Heart Healthy’s Site and any claim brought by you must be brought in your individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). Both you and The Heart Healthy hereby expressly waive any rights to maintain any Class Action in any forum. The arbitrator shall not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. YOU HEREBY AGREE THAT THIS WAIVER APPLIES TO YOUR USE OF ANY ASPECT OF THIS SITE AND APPLIES, WITHOUT LIMITATION, TO ANY CIVIL CLAIMS YOU COULD HAVE PURSUED AGAINST THE HEART HEALTHY, INCLUDING ANY CIVIL CLAIMS RELATED TO THE PRIVACY AND COPYRIGHT POLICIES INCORPORATED BY REFERENCE HEREIN. YOU AGREE THAT BY YOUR VOLUNTARY USE OF THIS SITE, YOU HAVE WAIVED YOUR RIGHT TO A JURY TRIAL AS A MEMBER OF ANY CLASS, AND HAVE AGREED TO PURSUE ANY CIVIL CLAIMS YOU MAY HAVE AGAINST THE HEART HEALTHY INDIVIDUALLY BY THE TERMS OF THE BINDING ARBITRATION DESCRIBED ABOVE.
Attorney’s Fees. In addition to all other relief, the arbitrator shall have the power to award reasonable attorneys’ fees to the prevailing party. The arbitrator shall make his or her award no later than seven (7) calendar days after the close of evidence or the submission of final briefs, whichever occurs later.
Severability. 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. Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor the right to enforce such provision.
If you have any questions regarding this Agreement, please contact us at our email address: [email protected]
EFFECTIVE DATE: April 2, 2014