MOTIVATION SCIENCE, INC.
VALIDIC TERMS & CONDITIONS OF USE
THESE TERMS CONTAIN IMPORTANT DISCLAIMERS AND LEGAL INFORMATION
Last Updated September 9, 2013
1. THE AGREEMENTS: WHAT THEY ARE, WHO THEY APPLY TO AND HOW THEY CHANGE
In order to use the Website and/or the Service you must be capable of forming a legally binding contract with Motivation Science, including, without limitation, being of a legal age to enter into a contract and being permitted to receive services by the laws of the United States and any other applicable jurisdiction. IF YOU DO NOT HAVE THE CAPABILITY SET FORTH ABOVE YOU MUST IMMEDIATELY CEASE ALL USE OF BOTH THE WEBSITE AND THE SERVICE.
BY CHECKING THE “I HAVE READ AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS OF USE” BOX AND CLICKING “CONTINUE” prior to CONTINUING your use of the Service, and by continuing to access and use the Website and/or the Service after the date thereof, you REPRESENT THAT YOU ARE CAPABLE OF FORMING A LEGALLY BINDING CONTRACT WITH MOTIVATION SCIENCE, INCLUDING THAT YOU ARE OLD ENOUGH TO DO SO AND PERMITTED TO RECEIVE SERVICES BY THE LAWS OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION, AND YOU expressly agree and consent to be bound by, and evidence your understanding of the terms of, the Agreements.
If you do not agree to all of the terms of the Agreements you may not use either thE Website or the Service, and you MUST IMMEDIATELY cease all use of both the Website and the Service. You are encouraged to PRINT AND TO read theSE Agreements carefully and to contact us with any questions that you may have before commencing your use of the Website or the Service.
2. RULES OF CONDUCT
General Restrictions Applicable to all Users. All Users shall use the Website and the Service for lawful purposes only. In addition, you represent, warrant, covenant and agree that, as a User of the Website and/or Service you will not do, or assist any others in doing, any of the following:
knowingly violate any applicable law, regulation, ordinance, contract, order or other agreement that is binding on you and/or your use of the Website or the Service;
use the Website or the Service to engage in or to promote any behavior or activity that is (i) abusive, vulgar, obscene, offensive, hateful, fraudulent, threatening, harassing, defamatory or libelous, (ii) used to disclose private or personal matters concerning any person or (iii) hateful or incites violence or that advocates or encourages any illegal activity;
use the Website or the Service to access or use any content, information or material to which you do not have the necessary right (including all copyrights, moral rights, privacy rights and/or publicity rights) or license, or otherwise knowingly violate, breach or infringe the intellectual property, contractual or other rights of any third party;
remove or interfere with any copyright notices or digital “watermarks” on any images or other content intended to indicate the source and/or ownership of such image or other content;
use the Website or the Service to engage in or to promote any behavior or activity that constitutes advertising, spam or any other form of solicitation, including chain letters and pyramid schemes, other than as expressly permitted in connection with your use of the Website and/or Service;
impersonate any person, or falsely state or otherwise misrepresent your identity or your affiliation with a person or entity including;
modify, disassemble, decompile, reverse engineer, revise or enhance all or any part of the Website or the Service or create any derivative works or otherwise merge or utilize all or any part of the Service or the Website with or into other computer programs, website, service or other materials or attempt to do any of the foregoing or to discover all or any part of the Website’s or the Service’s source code;
copy, print, display, publish or transmit all or any part of the Website or the Service (including the look and feel and/or software or graphical user interface thereof) or any other content or materials published, displayed, offered or otherwise made available in connection therewith for any purpose, including for use with any product competitive with the Service, whether used internally or made available to third parties, except as expressly authorized herein or by us in writing;
sell, license (or sublicense), lease, assign, transfer, pledge, or share (including as a time share, service bureau or otherwise) any of your rights under, in or to the Agreements, the Website and/or the Service with or to any third party;
send or store any materials, data or information containing viruses, malicious code, corrupted files, “Trojan Horses,” or any other contaminating or destructive features that may damage someone else’s computer, or upload or insert code, scripts, batch files or any other form of scripting or coding into the Website, the Service or any applications thereof or therein;
otherwise interfere with or disrupt the integrity or performance of the Website or the Service or any of Our Content (as defined below) contained therein;
attempt to gain unauthorized access to the restricted areas of the Website or the Service or its related systems or networks; or
use the Website or the Service in any manner not intended by or explicitly prohibited by us.
Not intended for Users under 18 years of age. The Website and the Service are intended for commercial and/or adult users and neither is directed toward any User or any other person under 18 years of age. If you are under age 18, please do not attempt to use the Website or the Service. If we learn that we have collected any information, including any personal information, from a child under age 18, we will use our best efforts to delete that information as quickly as possible. If you believe that we might have any such content or information from a child under age 18, please contact us at contact page. We strongly recommend that minors under the age of 18 ask their parents for permission before sending any information about themselves to anyone over the Internet and we encourage parents to teach their children about safe Internet use practices.
3. DESCRIPTION OF THE SERVICE
WHILE WE WILL UNDERTAKE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE THE SERVICE AS DESCRIBED IN MORE DETAIL ON OUR WEBSITE, WE CANNOT AND DO NOT REPRESENT, WARRANT OR GUARANTEE THAT WE WILL BE ABLE TO PROVIDE THE SERVICE OR THAT THE SERVICE WILL BE FUNCTIONING OR AVAILABLE, PARTIALLY OR IN FULL, AT ALL TIMES OR AT ANY PARTICULAR TIME; NOR DO WE REPRESENT, WARRANT OR GUARANTEE IN ANY RESPECT THE COMPLETENESS, ACCURACY OR EFFICACY OF ANY PROGRAM DATA, WHETHER PREPARED OR PROVIDED BY YOU OR BY US, AT ALL TIMES OR AT ANY PARTICULAR TIME; NOR DO WE REPRESENT, WARRANT OR GUARANTEE THAT ANY SERVICE OR FEATURE CURRENTLY INCLUDED IN THE SERVICE WILL REMAIN AS PART OF THE SERVICE GOING FORWARD.
ACCORDINGLY, YOUR USE OF THE WEBSITE AND THE SERVICE IS EXPRESSLY CONDITIONED ON YOUR ACKNOWLEDGEMENT AND ACCEPTANCE OF THE LIMITATIONS SET FORTH IN THIS SECTION 3 AND THE LIMITATION OF LIABILITY SET FORTH IN SECTION 8 OF THESE TERMS.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Service (“Feedback”). You may submit Feedback by emailing us at email@example.com. You acknowledge and agree that if you submit any Feedback to us, you hereby grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, sub-licensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works upon and otherwise exploit the Feedback for any purpose.
For the avoidance of doubt, Motivation Science is under no obligation to make any changes or modifications to the Service or the Website, whether suggested by a User in the form of Feedback or otherwise, and we reserve the right, with or without prior notice to you, to discontinue work on the Service or to revise or modify the Service so it provides different features, features in different combinations and/or different environment configurations.
5. OWNERSHIP OF THE WEBSITE AND SERVICE; OUR TECHNOLOGY AND OUR CONTENT
Use of Marks. Certain of the names, logos, and other materials displayed on the Website or in the Service constitute trademarks, trade names, service marks or logos (“Marks”) of Motivation Science or our applicable licensors and you acknowledge and agree that you shall have no right, license or authority to use such Marks without our prior written consent (or, if applicable, the prior consent of our licensors) and that the ownership of all such Marks and the goodwill associated therewith remains with and will inure to us (or, if applicable, our licensors). To the extent indicated, any use of third party software or other technology provided in connection with the Website or the Service will be governed by the applicable third party licenses and/or terms and conditions, and not by these Terms.
Our Content. In addition to Our Technology, the Website and/or the Service may contain other text, images, files, audiovisual productions, opinions, statements, facts, articles, or other information or content created, generated, supplied or derived by us or by third parties (“Our Content”). Our Content is for your reference only and, except as expressly indicated otherwise, may not be relied upon by you for any purpose or used by you for any purpose other than your use of the Service in accordance with these Terms. We are not responsible for Our Content’s accuracy or reliability. In addition to any protections Our Content may have to the extent it also constitutes Our Technology, you hereby acknowledge and agree that Our Content may not be copied, duplicated, reproduced, distributed, downloaded, publicly displayed, transmitted, sold or otherwise exploited by you in any way, except as agreed to in writing by us.
6. PRIVACY STATEMENT AND SECURITY
7. USER INDEMNITY
You agree to defend, indemnify and hold harmless us, our affiliates, agents, employees, directors, officers, donors, grantees, licensors, content providers, service providers and volunteers from any claims, actions, losses, damages, liabilities, judgments, settlements (each, a “Claim”), including all costs and expenses (including attorneys’ fees and disbursements) therein, arising out of or relating to: (a) your breach or failure of your obligations under the Agreements, including any representation, warranty, covenant or guarantee made by you pursuant to the Agreements or as a condition of your use of the Website and/or the Service, (b) the gross negligence or willful misconduct of you, (c) the placement by you of a link or other means of access to the Website and/or the Service on or in any website, service, software program or in any e-mail or other communication, or (d) your access to and use of the Website or the Service or participation in any activities arising from this Website or the Service. Such indemnity shall include any costs and expenses incurred by us in any actions taken to enforce this indemnity. We reserve the right, at your expense, to assume the exclusive defense and control of any Claim for which you are required to indemnify us and you agree to cooperate with our defense of such Claims, and you agree not to settle any such Claim without our prior written consent. We will use commercially reasonable efforts to notify you of any Claim to which we are entitled to indemnification within a commercially reasonable period of time upon becoming aware of such Claim.
8. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY
THIS DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY ACT OR OMISSION OF OURS OR ANY OF OUR AFFILIATES, AGENTS, EMPLOYEES, DIRECTORS, OFFICERS, DONORS, GRANTEES, LICENSORS, CONTENT PROVIDERS, SERVICE PROVIDERS OR VOLUNTEERS, ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF DATA OR CONTENT (INCLUDING ANY OF YOUR PROGRAM DATA), WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. YOU SPECIFICALLY ACKNOWLEDGE THAT NEITHER WE NOR ANY OF OUR AFFILIATES, AGENTS, EMPLOYEES, DIRECTORS, OFFICERS, DONORS, GRANTEES, LICENSORS, CONTENT PROVIDERS, SERVICE PROVIDERS OR VOLUNTEERS ARE LIABLE FOR THE CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF LOSS, DAMAGES OR INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
YOU SPECIFICALLY AGREE AND ACKNOWLEDGE THAT:
USE OF OUR WEBSITE, THE SERVICE AND THE PROGRAMS IS ENTIRELY AT YOUR OWN RISK. WE DISCLAIM ALL LIABILITY FOR DAMAGES RESULTING FROM ANY INJURY TO USERS IN CONNECTION WITH THE SERVICE, INCLUDING, WITHOUT LIMITATION ANY INJURIES OR OTHER HARM RESULTING FROM ANY ACTIVITIES OR ACTIONS UNDERTAKEN AS A RESULT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICE OR ANY PROGRAMS ACCESSED BY YOU THROUGH THE SERVICE. WE SPECIFICALLY DISCLAIM ANY GUARANTEES OR WARRANTIES REGARDING THE EFFECTIVENESS OF ANY PROGRAMS OR THE HEALTH RESULTS THAT MAY BE OBTAINED FROM THE USE OF ANY PROGRAMS. PLEASE REMEMBER TO ALWAYS CONSULT WITH YOUR HEALTH CARE PROFESSIONAL PRIOR TO TAKING ANY ACTION THAT MAY AFFECT YOUR HEALTH.
WE MAKE NO WARRANTY THAT THE WEBSITE, THE SERVICE OR ANY PROGRAMS WILL MEET YOUR REQUIREMENTS, OR THAT THE WEBSITE, THE SERVICE OR ANY PROGRAMS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; OR THAT DEFECTS IN THE WEBSITE, SERVICE, THE PROGRAMS OR ANY CONTENT INCLUDED THEREIN WILL BE CORRECTED. YOU ACKNOWLEDGE THAT MOTIVATION SCIENCE DOES NOT GUARANTEE OR WARRANTY ANY PROGRAM OR ANY PROGRAM DATA; AND THAT YOU UNDERSTAND THAT THE WEBSITE AND THE SERVICE MERELY SERVE TO PROVIDE A CONNECTION BETWEEN THE PROGRAMS AND YOUR WELLNESS PORTAL PROVIDER AND MOTIVATION SCIENCE IS NOT RESPONSIBLE FOR THE CONTENT OF THE PROGRAMS OR THE ACCURACY OF THE PROGRAM DATA.
OUR WEBSITE, ALL CONTENT (INCLUDING OUR CONTENT) AND THE SERVICE ARE PROVIDED “AS IS,” AND “AS AVAILABLE” FOR YOUR USE ONLY, WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY FOR INFORMATION, SERVICES, UNINTERRUPTED ACCESS OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH US OR THE WEBSITE, UNLESS OTHERWISE EXPLICITLY SET FORTH TO THE CONTRARY HEREIN. WE SPECIFICALLY DISCLAIM ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY AND EFFICACY OF THE SERVICE OR ANY OF OUR CONTENT OR OUR TECHNOLOGY OR OTHER INFORMATION, PRODUCTS OR SERVICES PROVIDED BY US, AS WELL AS ANY WARRANTIES OF TITLE, OWNERSHIP OR NON-INFRINGEMENT OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NEITHER MOTIVATION SCIENCE NOR ANY OF ITS AFFILIATES, AGENTS, EMPLOYEES, DIRECTORS, OFFICERS, DONORS, GRANTEES, LICENSORS, CONTENT PROVIDERS, SERVICE PROVIDERS OR VOLUNTEERS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE WEBSITE OR THE SERVICE OR YOUR INABILITY TO GAIN ACCESS TO OR USE THE WEBSITE OR THE SERVICE.
YOU HEREBY ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL CONTENT PROVIDED, ACCESSED, CONTROLLED OR USED BY US IN CONNECTION WITH THE WEBSITE OR THE SERVICE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU; IN SUCH JURISDICTIONS, OUR POTENTIAL LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
IN THE EVENT THAT THIS SECTION 8 IS DETERMINED BY ANY COURT TO BE UNENFORCEABLE, YOU AGREE THAT ANY CLAIM THAT YOU BRING AGAINST MOTIVATION SCIENCE OR ANY OF ITS AFFILIATES, AGENTS, EMPLOYEES, DIRECTORS, OFFICERS, DONORS, GRANTEES, LICENSORS, CONTENT PROVIDERS, SERVICE PROVIDERS OR VOLUNTEERS THEREOF SHALL BE BROUGHT ONLY IN YOUR INDIVIDUAL CAPACITY, AND SUCH CLAIM SHALL NOT BE CONSOLIDATED WITH THE ARBITRATION, HEARING OR OTHER PROCEEDING (INCLUDING WITHOUT LIMITATION ANY OTHER SUIT OR CLASS ACTION) BROUGHT BY OR AGAINST ANOTHER USER OR US WITHOUT OUR EXPRESS WRITTEN CONSENT.
THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
9. FORCE MAJEURE
Without limiting the provisions of Section 8 or any other provision of the Agreements, under no circumstances will we or any of our affiliates, agents, employees, directors, officers, donors, grantees, licensors, content providers, service providers or volunteers be held liable for any delay or failure in performance (including with respect to the provision or operation of the Service) resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, or the non-performance or unauthorized action of third parties, including any action or inaction by a User that is not permitted by these Terms.
10. ELECTRONIC COMMUNICATIONS
We can only give you the benefits of this Website and our Service by conducting business through the Internet, and therefore we require you to consent to our giving you Communications electronically. This Section 10 informs you of your rights when receiving Communications from us electronically. For contractual purposes, and as a necessary condition to our agreeing to allow you to use the Website and/or the Service, you agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that we provide to you electronically satisfy any legal requirement that such Communications would satisfy if it were in a writing and shall have the same meaning, force and effect as if executed by hand, and all of the laws to which a hand executed agreement are subject will govern the Agreements. Your consent to receive, and our agreement to do so, applies to all of your interactions and transactions with us. The foregoing does not affect your non-waivable rights. You may withdraw your consent to receive Communications electronically by contacting us in the manner described below. If you withdraw your consent to receive Communications electronically you must, at that time and in order to give effect to such withdrawal, immediately cease using the Website and the Service. The withdrawal of your consent will not affect the legal validity and enforceability of any obligations or any electronic Communications between us prior to the time you withdraw your consent. A printed version of the Agreements shall be admissible in judicial or administrative proceedings based upon or relating to the Agreements to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
11. CHOICE OF LAW
THE AGREEMENTS WILL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA, APPLICABLE TO AGREEMENTS MADE AND WHOLLY PERFORMED IN THAT STATE, WITHOUT REGARD TO THE CHOICE OF LAW PROVISIONS THEREOF.
Users will resolve any claim, cause of action or dispute with Motivation Science arising out of or relating to the Agreements or the Website exclusively in state or federal court located in Durham County, North Carolina. Users agree to submit to the personal jurisdiction of the courts located in Durham County, North Carolina for the purpose of litigating all such claims.
If you wish to contact us for any reason, please contact us at firstname.lastname@example.org, or use the “Contact” link on this Website.
13. TERMINATION; SURVIVAL OF TERMS
Termination. You agree that we, upon the deletion of your user account with your wellness portal provider, you will no longer have the right to access the Website or the Service, and we may immediately terminate your access to the Website and the Service.
Upon the deletion of your account with your wellness portal provider we may either delete the Program Data or retain the Program Data on behalf of our clients for as long as needed to provide services to our client for which we incurred any obligation prior to your deletion, and in no event shall we be required to delete any of Our Technology, Our Content, or any Program Data.
YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE WEBSITE OR THE SERVICE OR THE DELETION OF YOUR PROGRAM DATA.
Survival of terms. Except as set forth in these Terms, in the event of the termination or expiration of your right to access or to use the Website or the Service, all of your rights pursuant to these Terms, the Service and the Website shall terminate immediately; provided, however, that the rights and the obligations of the parties set forth in Sections 1, 4 and 5 and Sections 7 through 14, along with any other provision of these Terms required to enforce your or our rights and obligations hereunder, shall survive the termination or expiration of these Terms and shall continue in effect as described therein.
Use of the Website or the Service is unauthorized in any jurisdiction that does not give effect to all provisions of the Agreements, including without limitation this Section 14. Paragraph headings and sub-headings are solely for the convenience of reference and shall not be given any weight or effect in the interpretation or construction of the Agreements. Waiver of any breach or default under any provision of the Agreements shall not be effective unless it is in writing and executed by us, and shall not be deemed to be, and shall not be, a waiver of any subsequent or continuing breach of, or default under, such provision or of any other provision. The Agreements constitute the entire agreement between you and us and supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between you and us with respect to the Website or the Service. The Agreements, including these Terms, are personal to you, and you may not transfer, assign or delegate your right and/or duties under the Agreements to any third party. Any attempted transfer, assignment or delegation in violation hereof is void. If any provision of the Agreements is deemed invalid or unenforceable for any reason, such provision shall be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreements shall continue in full force and effect. Any rights not expressly granted herein are reserved.