Terms and Conditions

1. LICENSE

1.1. Governing Agreement

The terms of this agreement ("Terms of Service") govern the relationship between you and Optimity Inc. with an office at 111 Peter St. Suite 300 Toronto, ON, M5V 2H1 (hereinafter "Optimity", "Us", "We" or "Our") regarding your use of Optimity's online services and websites (the "Service"). 

1.2. Privacy Policy

Use of the Service is also governed by Optimity's Privacy Policy, which is incorporated herein by reference. Your privacy is important to Us and Our Privacy Policy explains how we collect and use your content and information and how you can use the Service to share such information with others. By creating an account or accessing or using the Service you accept and agree to be bound by these Terms of Service and consent to the collection, use and storage of your information as outlined in our Privacy Policy.

1.3. Updates to the Terms of Service and Privacy Policy

We reserve the right, at our discretion, to change, modify, add or remove portions of these Terms of Service and its Privacy Policy at any time by posting the amended Terms on Optimity's website. You may also be given additional notice, such as an e-mail message or messaging within the Service, of any changes. You will be deemed to have accepted such changes by continuing to use any of Optimity's Services. Except as otherwise stated, all amended terms shall automatically be effective 30 days after they are initially posted. Optimity may also revise other policies, codes or rules at any time, and the new versions will be available on Optimity's website and/or on the Services. If at any point you do not agree to any portion of our Terms of Service, our Privacy Policy, or any other policy, rule or code of conduct relating to your use of the Service, your license to use the Service shall immediately terminate, and you must immediately stop using the Service. To the extent the Terms of Service or Privacy Policy conflict with any other Optimity terms, policy, rules or codes of conduct, the terms contained in these Terms of Service and in the Privacy Policy shall govern.

1.4. Grant of a Limited License to Use the Service

Subject to your agreement and continuing compliance with these Terms of Service and any other relevant Optimity policies, Optimity grants you a non-exclusive, non-transferable, revocable limited license, subject to the limitations contained in these Terms of Service, to access and use the Service solely for your own non- commercial purposes. You agree not to use the Service for any other purpose.

1.5. Accessing the Service

Before accessing or using the Service, including browsing any Optimity website, you must agree to these Terms of Service and the Privacy Policy. You may also be required to register an account on the Service (an "Account"). If you are a minor, you represent that your legal guardian has reviewed and agreed to these Terms on your behalf. You must provide all equipment and software necessary to connect to the Service, including, but not limited to, a mobile device that is suitable to connect with and use the Service, in cases where the Service offers a mobile component. You are responsible for any fees, including internet connection or mobile fees that you incur when accessing the Service.

1.6. Use of the Service

You acknowledge that Optimity is a voluntary service. We are not a medical organization and will not give you any medical advice or diagnosis. Our purpose is to help users record what they eat and exercise, track their health and fitness progress, schedule events and motivate other users. The information available through this Service and from any other service provided to you directly by Optimity or a third party working with Optimity should not be used to make any medical diagnose, and is only to be used for educational purposes. The Service should not be used for medical advice or opinions, nor does it contain medical advice or opinions. Always consult with a doctor before starting a diet or fitness program. Consult a recognized medical professional if any training or dieting is causing pain or serious discomfort. We cannot guarantee any health, weight and/or fitness results or improvements as a result of using the Service. The following restrictions apply to the use of the Service: a. If you are a minor you must have permission of your adult guardian and have them agree to Optimity's Terms of Service on your behalf; b. If you have a condition that requires medical treatment, or are pregnant and/or breastfeeding/lactating, have an eating disorder, you may not use the Service without an approval from your physician or other licensed health adviser; c. You shall not have more than one Account any given time, and shall not create an account using a false identity or information, or on behalf of someone other than yourself; d. You shall not have an Account or use the Service if you have previously been removed by Optimity, or have been banned by Us from participating in any Service; e. You shall use your Account only for non-commercial purposes; f. You shall not use your Account to advertise, or solicit, or transmit any commercial advertisements, including chain letters, junk e-mail or repetitive messages (spim and spam) to anyone; g. You shall not use your Account to engage in any illegal conduct including the unauthorized distribution of copyrighted material; h. You shall not rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account to anyone without Our written permission; i. You shall not access or use an Account which has been rented, leased, sold, traded, gifted, bequeathed, or otherwise transferred from the Account creator without Our permission; and j. If you access the Service from your employer's account you shall comply with your employer's terms of service/use as well as these Terms of Service. You must immediately stop using the Service if you are not able to comply with the foregoing restrictions.

1.7. Account Information

When creating or updating an Account on the Service, you are required to provide Us with the personal information described below and this information will be held and used in accordance with Our Privacy Policy. You agree that you will supply accurate and complete information to establish your Account and that you will update that information promptly after it changes. You understand that on certain use your user ID number, name and profile picture will be publicly available and you consent to this information being publicly available.

1.8. Username and Password

When you create an Account you will be required to provide: i) your legal full name; ii) a valid email address; iii) create a password; and iv) include any other information requested in order to create your Account ("Login Information"). The following rules govern the security of your Login Information: a. You shall not share the Account or the Login Information, nor let anyone else access your account or do anything else that might jeopardize the security of your Account; b. In the event you become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorized disclosure of the Login Information, you must immediately notify us and, at the same time, modify your Login Information; c. You are solely responsible for maintaining the confidentiality of the Login Information, and you will be responsible for all uses of the Login Information, including purchases, whether or not authorized by you; d. If your account has been terminated for any reason, you may not re-register as a member without prior written consent of your company, which may or may not be granted, at the sole discretion of Optimity; e. You are responsible for all Content and activity that occurs through your Account. We reserve the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates the third party's rights.



2. OWNERSHIP

2.1. Service

The Service (including without limitation any graphics, titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, documentation, transcripts, character profile information, recordings) are copyrighted works owned by Optimity or licensed to Optimity. Optimity reserves all rights, including without limitation, all intellectual property rights or other proprietary rights, in connection with the Service.

2.2. Accounts

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN THE ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO THE ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF OPTIMITY. OPTIMITY RESERVES THE RIGHT TO TERMINATE ANY ACCOUNT THAT HAS BEEN INACTIVE FOR 180 DAYS.

2.3. User Content

"User Content" means any communications, images, sounds, and all the material, data, and information that you upload or transmit through any Service, or that other users upload or transmit, including without limitation any chat text. By transmitting or submitting any User Content while using the Service, you affirm, represent and warrant that such transmission or submission is (a) accurate and not confidential; (b) not in violation of any laws, contractual restrictions or other third party rights, and that you have permission from any third party whose personal information or intellectual property is comprised in the User Content; (c) free of viruses, adware, spyware, worms or other malicious code; and (d) you acknowledge and agree that any of your personal information within such content will at all times be processed by Optimity in accordance with Our Privacy Policy. You hereby grant Optimity a perpetual and irrevocable (other than as provided below), worldwide, fully paid-up and royalty free, non-exclusive, unlimited license, including the right to sublicense and assign to third parties, and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works from, manufacture, introduce into circulation, commercialize, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way now known or in the future discovered, your User Content as well as all modified and derivative works thereof. To the extent permitted by applicable laws, you hereby waive any moral rights you may have in any User Content. The license you grant Us to use user posted content ends when you delete your User Content or you close your Account unless your User content has been shared with others, and they have not deleted it. However, you understand and accept that removed content may persist in back-up copies for a reasonable period of time.



3. UPDATES TO THE SERVICE

You understand that the Service is an evolving one. Optimity may require that you accept updates to the Service. You acknowledge and agree that Optimity may update the Service with or without notifying you. You may need to update third party software from time to time in order to continue receiving the Service.



4. DISCLAIMERS / LIMITATIONS / WAIVERS / INDEMNIFICATION

4.1. Disclaimer of Warranties

YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON- INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD THE SHORTER OF THIRTY DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED). WITHOUT LIMITING THE FOREGOING, NEITHER OPTIMITY NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, "OPTIMITY PARTIES") WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.

4.2. Limitations; Waivers of Liability

YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE OPTIMITY PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE OPTIMITY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE OPTIMITY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. UNDER NO CIRCUMSTANCES WILL THE OPTIMITY PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU, OR A THIRD PARTY ON YOUR BEHALF, HAVE PAID OPTIMITY IN THE ONE HUNDRED AND EIGHTY DAYS (180) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU, OR A THIRD PARTY ON YOUR BEHALF, HAVE NOT PAID OPTIMITY ANY AMOUNTS IN THE ONE HUNDRED AND EIGHTY DAYS (180) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH OPTIMITY IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU.

4.3. Indemnification

You agree to indemnify, save, and hold Optimity, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you herein. Optimity reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Optimity, and you agree to cooperate with Optimity's defense of these claims. Optimity will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. You agree that the provisions in this paragraph will survive any termination of your Account(s) or of the Service.



5. GENERAL PROVISIONS

5.1. Severability

You and Optimity agree that if any portion of these Terms of Service or of the OPTIMITY Privacy Policy is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective solely to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Terms, which shall continue to be in full force and effect.

5.2. Law and Forum for Legal Disputes

Any dispute arising out of or related to it or the Service shall be governed in all respects by the laws of the Province of Ontario, Canada, without regard to conflict of law provisions. You agree that any claim or dispute you may have against Optimity must be resolved exclusively by a court located in the City of Toronto, Ontario, Canada, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the jurisdiction of the courts located in the City of Toronto, Ontario, Canada for the purpose of litigating all such claims or disputes.

5.3. Assignment

Optimity may assign or delegate these Terms of Service and/or the Optimity Privacy Policy, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under the Terms of Service or Privacy Policy without Optimity's prior written consent, and any unauthorized assignment and delegation by you is ineffective.

5.4. Supplemental Policies

Optimity may publish additional policies related to specific services such as forums, contests or loyalty programs. Your right to use such services is subject to those specific policies and these Terms of Service.

5.5. Entire Agreement

These Terms of Service, any other applicable Optimity policies and any documents expressly incorporated by reference herein (including the Optimity Privacy Policy), contain the entire understanding of you and Optimity, and supersede all prior understandings of the parties hereto relating to the subject matter hereof, whether electronic, oral or written, or whether established by custom, practice, policy or precedent, between you and us with respect to the Service.

5.6. No Waiver

The failure of Optimity to require or enforce strict performance by you of any provision of these Terms of Service or the Optimity Privacy Policy or failure to exercise any right under them shall not be construed as a waiver or relinquishment of Optimity's right to assert or rely upon any such provision or right in that or any other instance. The express waiver by Optimity of any provision, condition, or requirement of these Terms of Service or the Optimity Privacy Policy shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement. Except as expressly and specifically set forth in this these Terms of Service, no representations, statements, consents, waivers, or other acts or omissions by Optimity shall be deemed a modification of these Terms of Service nor legally binding, unless documented in physical writing, hand signed by You and a duly appointed officer of Optimity.

5.7. Notices

We may notify you via postings on www.myoptimity.com, and via e- mail or any other communications means to contact information you provide to us. All notices given by you or required from you under these Terms of Service or the Optimity Privacy Policy shall be in writing and addressed to: 111 Peter St. Suite 300 Toronto, ON, M5V 2H1. Any notices that you provide without compliance with this Section on Notices shall have no legal effect.

5.8. Equitable Remedies

You acknowledge that the rights granted and obligations made under these Terms of Service to Optimity are of a unique and irreplaceable nature, the loss of which shall irreparably harm Optimity and which cannot be replaced by monetary damages alone so that Optimity shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of any Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service and agree to limit your claims to claims for monetary damages, limited by Section 7.2 (if any).

5.9. Force Majeure

Optimity shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Optimity, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Optimity'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.

5.10. Customer Service and Technical Support

Customer service and technical support is available via email at engage@myoptimity.com

5.11. Distribution of Third Party Content

Optimity is a distributor (and not a publisher) of content supplied by third parties and Users. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers, Users are those of the respective author(s) or distributor(s) and not of Optimity. Neither Optimity nor any third-party provider of information guarantees the accuracy, completeness, or usefulness of any content, nor its merchantability or fitness for any particular purpose.

5.12. Extension of Benefits

Customer agrees that the rights and benefits of Optimity pursuant to Sections 1.2 and 5 as well as any indemnity, any limitation of liability and any consent granted by the Customer to Optimity hereunder shall also extend to your employer, if your employer pays for your access to this Service which is, solely for the purposes set out in this Section 5.12 and the Sections of this Agreement referred to in this Section 5.12, a party to this Agreement.