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").
1.4. 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
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
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.
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.
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
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.
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
5.2. 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.
5.4. 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
5.6. No Waiver
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 firstname.lastname@example.org
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.