Terms and Conditions
1. LICENSE GRANT.
a. General. Subject to your continued compliance with the express terms and conditions of this Agreement, achu provides to you a revocable, limited, royalty-free, non-exclusive, non-transferable, and non-sublicensable license to access and use the Properties, and to make single copies or prints of the content on the Properties solely for your personal, non-public and internal use. The content layout, formatting, and features of and access privileges for the Properties shall be as controlled by achu and shall remain within its sole discretion. You also acknowledge and agree to the following: (i) achu has the right to control and direct the means, manner, and method by which the Properties are provided; (ii) achu reserves the right to engage independent contractors, consultants, or subcontractors to aid achu in providing the Properties or use thereof; and (iii) achu has the sole right to provide the Properties to others.
b. Reservation of Rights. All rights not expressly granted under this Agreement are hereby reserved by achu. Accordingly, you are hereby prohibited from using the Properties in any manner that is not expressly and unambiguously authorized by the terms and conditions of this Agreement.
You may not modify, reproduce, duplicate, copy, download, store, further transmit, disseminate, transfer, disassemble, broadcast, publish, remove or alter any proprietary notices or labels, license, sublicense, sell, mirror, frame, rent, lease, private label, grant a security interest in, create derivative works of, or otherwise exploit the Properties, or any portion of the Properties without achu’s prior written consent. Moreover, you may not (a) use any “deep link,” “page scrape,” “robot,” “spider,” or other automatic device, program, script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the Properties or in any way reproduce or circumvent the navigational structure or presentation of the Properties to obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the Properties, (b) attempt to gain unauthorized access to any portion or feature of the Properties or any other systems or networks connected to the Properties or to any achu server or to any of the services offered on or through the Properties, by hacking, password “mining,” or any other illegitimate or prohibited means, (c) probe, scan, or test the vulnerability of the Properties or any network connected to the Properties, nor breach the security or authentication measures on the Properties or any network connected to the Properties, (d) reverse engineer, look up, trace, or seek to trace any information on any other user of or visitor to the Properties, (e) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Properties or achu’s systems or networks or any systems or networks connected to the Properties, (f) use any device, software, or routine to interfere with the proper working of the Properties or any transaction conducted on the Properties, or with any other person’s use of the Properties, (g) forge headers, impersonate a person, or otherwise manipulate identifiers in order to disguise your identity or the origin of any message or transmittal you send to achu on or through the Properties, or (h) use the Properties in an unlawful manner. In addition, you agree to abide by all applicable local, state, national laws and regulations with respect to your use of the Properties.
3. NO MEDICAL ADVICE.
The contents of the Properties, including any information, analyses, suggestions, text, graphics, images, information obtained from or in combination with third parties or other devices, and any other material contained on the Properties (“Content”) are for informational and entertainment purposes only. The Content is not a substitute, nor is it intended to be a substitute, for professional medical advice, diagnosis, or treatment. You should always seek the advice of your doctor or other qualified health care provider with any medical, technical, personal, or other questions you may have concerning a medical condition, treatment options, or any other advice and information. Under no circumstances should you disregard or delay professional medical advice or treatment because of any information provided by or derived from the Properties. In case of a medical emergency, call 911 for assistance.
4. USER OBLIGATIONS.
The Properties are offered and made available only to users 18 years of age or older. If you are not yet 18 years old, discontinue using the Properties immediately. By downloading, accessing, or using the Properties, you represent and warrant that (i) you are at least 18 years of age or, if you are under the age of 18, you either are an emancipated minor or have obtained the legal consent of your parent or legal guardian to enter into these Terms and Conditions; (ii) you will at all times provide true, accurate, current, and complete information when submitting information to achu through the Properties or through other means; (iii) you will at all times comply with the terms and conditions of this Agreement; (iv) you have all necessary rights to make available any Posting; and (v) that none of your Submissions (as defined below) will violate any right(s) of a third party including, without limitation, any privacy, publicity, intellectual property, confidentiality and/or employment right. Any breach of the foregoing representations and warranties will be considered a substantial breach of this Agreement and will entitle achu to immediately terminate this Agreement and/or seek any and all remedies available at law or equity. If you do not agree to any term or condition, you should not access or otherwise use the Properties. You also acknowledge and agree that use of the Internet and access to the Properties are solely at your own risk. While achu has endeavored to create a secure and reliable Properties, you should understand that the confidentiality of any communication or material transmitted to/from the Properties over the internet or any other form of global communication network cannot be guaranteed. The information provided by the Service originates from other users of the Properties. Such information is intrinsically fluctuant, non-static, and may be inaccurate, incomplete or outdated. Accordingly, achu is not responsible for the accuracy, reliability, or security of any information transmitted to or from the Properties. You must make your own determination as to such issues.
5. ACCOUNT REGISTRATION AND USER NAME HANDLING POLICY:
Certain sections of the Properties may require you to register as a user (or an Administrator) or create an account. By registering or creating an account, you agree to provide accurate and complete information and to inform achu of any changes to that information. Each registration is for a single user only, unless otherwise expressly provided on the registration page. Registration for access to and use of the Properties may also require access credentials, such as a user name and a password, or adherence to other particular access requirements as designated by achu in its sole discretion from time to time. You hereby agree to consider your access credentials, such as a user name and password, as confidential information and not to disclose such information to any third party without the prior express written consent of achu, which may be withheld in its sole discretion. You shall immediately notify achu if you suspect or become aware of any loss or theft of your password or any unauthorized use of your user name and password. achu will not be liable for any loss or damage arising from your failure (whether inadvertent or intentional) to comply with these obligations.
You may be permitted to register as an administrator of a “Group” on the Properties (an “Administrator”) by requesting such access from achu and completing the verification process as provided by achu in its sole discretion. A “Group” is a special profile that may only be used to identify a business or other commercial, political, or charitable entity, organization, or endeavor (including non-profit organizations, public or government institutions, self-organized groups, or political campaigns). You may only be an Administrator of a Group if you are an authorized representative of the subject of the Group. By registering as an Administrator on behalf of a company or organization, you represent and warrant that you have the necessary rights and permissions from the company or organization to do so. Additional guidelines regarding the use of Group pages and conduct of Administrators may apply and will be provided to you by achu from time to time.
6. MOBILE SERVICES.
The Properties will offer various tools and/or services that are available to you via your mobile phone or other mobile device including the use of messages on your wireless device via short message service (“SMS Service”) (collectively, “Mobile Services”). Please note that your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile devices, what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the Properties and its related Mobile Services shall be strictly in accordance with this Agreement.
7. LOCATION-BASED SERVICES.
8. PROPRIETARY RIGHTS.
This Agreement provides only a limited license to access and use the Properties in accordance with the terms of this Agreement. Accordingly, you hereby agree that achu transfers no ownership or intellectual property interest or title in and to the Properties or any achu intellectual property to you or anyone else in connection with your use of the Properties. All text, graphics, user interfaces, visual interfaces, photographs, sounds, artwork, computer code (including html code), programs, software, products, information, and documentation as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of any content contained on or available through the Properties (except for Submissions) are exclusively owned, controlled, and/or licensed by achu or its members, parent(s), licensors, or affiliates. achu, the achu logo, and all other marks are proprietary trademarks of the achu, and any use of such marks, including, without limitation, as domain names, account identifiers, or in connection with any search engine optimization practice(s), without the prior express written permission of achu is hereby strictly prohibited.
10. LINKS TO OTHER SITES AND THIRD PARTY CONTENT.
achu may in its sole discretion feature and/or post the advertisements of third parties on the Properties and/or links to certain websites or online social networks (or pages) owned and controlled by third parties (collectively, “Third Party Sites”). These Third Party Sites have not necessarily been reviewed by achu and are owned, controlled and/or maintained solely by third parties over whom achu exercises no control (collectively, “Third Party Content”) and achu may in its sole discretion provide third party content on the Properties through social media networks (or pages) or through one or more data feeds owned and controlled by third parties. Such Third Party Content has not necessarily been reviewed by achu and is created, edited, published, maintained and transmitted by third parties over whom achu has no control. Your correspondence or any other dealings with third parties found on the Properties are solely between you and such third party. Accordingly, achu hereby expressly disclaims and shall not have any liability or responsibility for (a) any Third Party Content appearing on the Properties, or (b) the content, the materials, the accuracy of the information, and/or the quality of the products and/or services provided by, available through, or advertised on Third Party Sites accessible through links on the Properties. Moreover, the Third Party Sites and Third Party Content do not imply an endorsement with respect to any third party, any content, any website, network, or page, or the products or services provided by any third party.
THE PROPERTIES ARE PROVIDED ON AN “AS-IS” BASIS AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. achu MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE PROPERTIES FOR ANY PURPOSE, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY OTHER IMPLIED WARRANTY UNDER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AS ENACTED BY ANY STATE. achu ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE PROPERTIES WILL OPERATE ERROR-FREE, UNINTERRUPTED, OR IN A MANNER THAT WILL MEET YOUR REQUIREMENTS AND/OR NEEDS. THEREFORE, YOU ASSUME THE ENTIRE RISK REGARDING THE QUALITY AND/OR PERFORMANCE OF THE PROPERTIES, AND YOUR USE THEREOF.
12. LIMITATION OF LIABILITY.
You expressly absolve and release achu from any claim of harm resulting from a cause beyond achu’s control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other connection problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes, or other labor problems, wars, or governmental restrictions. MOREOVER, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL achu BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXPECTATION, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE PROPERTIES, WITH THE DELAY OR INABILITY TO USE THE PROPERTIES, THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY INFORMATION, SOFTWARE FUNCTIONALITY, AND MATERIALS AVAILABLE THROUGH THE PROPERTIES, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF achu HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, TOTAL LIABILITY OF achu FOR ANY REASON WHATSOEVER RELATED TO USE OF THE PROPERTIES SHALL NOT EXCEED $100 (US).
The Properties may contain or provide access to communication portals, information exchanges, blogs, message boards, comment areas, questionnaires, chat rooms, and other interactive features and functionality where users can provide, share, upload, and/or post information including, for example, the submission of illness reports. To the extent that the Properties contain such communication functionality (collectively referenced herein as “Forums”), you agree that by using the Properties you will not upload, post, display, or transmit any of the following materials on the Properties’ Forums:
– anything that interferes with or disrupts the Properties or the operation thereof;
– statements or material that defames, harasses, abuses, stalks, threatens, intimidates, or in any way violates the rights of others;
– unauthorized copyrighted materials or any other material that infringes on the intellectual property rights, trade secrets, or privacy of others;
– statements or material that violates other contractual or fiduciary rights, duties, or agreements;
– statements or material that is bigoted, hateful, or racially offensive;
– statements or material that encourages criminal conduct or that would give rise to civil liability or otherwise violates any law or regulation in any jurisdiction;
– statements or material that constitutes anti-competitive collaboration and/or antitrust violations;
– statements or material that contains vulgar, obscene, profane, or otherwise objectionable language or images that typically would not be considered socially or professionally responsible or appropriate in person;
– statements or material that harms minors;
– statements or material that impersonates any other person or entity, whether actual or fictitious, including, without limitation, employees and representatives of achu;
– statements or material that misrepresents your affiliation with any entity and/or achu;
– anything that violates the privacy or publicity rights of any other person, including, without limitation, posting any personal identifying information of another individual;
– chain letters or pyramid schemes;
– statements or materials that are deceptive or misleading;
– statements or material that constitutes junk mail, spam, or unauthorized advertising or promotional materials;
– statements or material that are “off-topic” for a designated Forum; and
– files that contain malicious code, viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer, network, or the Properties.
14. PERMISSION TO USE POSTINGS
Forums are the resources and property of achu and/or its licensors and you will not have any proprietary interest in any Forum. Moreover, by submitting content or information of any type (collectively referenced herein as a “Posting(s)”) to the Properties or by otherwise using the Properties to transmit or display your data, you automatically grant achu a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, publish, translate, create derivative works from, distribute, transmit, perform, and display such content or information (in whole or in part) worldwide for any purpose whatsoever, and/or to incorporate into other works in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content or information. Notwithstanding this right and license, it is understood that by merely permitting your information, content, and materials to appear on the Properties, achu has not become and is not a publisher of such information, content, and materials and is merely functioning as an intermediary to enable you to provide and display a Posting. You represent that you have all necessary rights to make the Posting available to achu and a Forum, and you also acknowledge that such Postings are non-confidential for all purposes and that achu has no control over the extent to which any idea or information may be used by any party or person once it’s posted or displayed. You understand that all information posted or transmitted through the Site is the sole responsibility of the person from which such Posting originated; that achu will not be liable for any errors or omissions in any Posting; and that achu cannot guarantee the identity of any other users with whom you may interact in the course of using the Properties. Moreover, achu assumes no responsibility for the deletion of or failure to store any Posting and recommends that you do not post, display, or transmit any confidential or sensitive information.
15. COPYRIGHT; DESIGNATED AGENT FOR NOTIFICATION OF CLAIMS OF INFRINGEMENT.
achu respects the intellectual property of others, and it asks its users to do the same. Accordingly, it is achu’s policy to respond to a notice of alleged infringement that complies with U.S. Copyright Law, and in particular, the Digital Millennium Copyright Act. Responses may include removing or disabling access to content or material claimed to be the subject of infringing activity and/or terminating your right to access and use the Properties. But, you acknowledge that you may be liable for damages, including attorneys’ fees and costs, if you materially misrepresent that a work or activity is infringing your rights. If achu terminates or suspends a user’s access to or use of the Properties, achu will make a good-faith attempt (as warranted) to contact the person who posted the content so that they may make counter notification pursuant to applicable laws. It is achu’s policy to document all notices of alleged infringement upon which achu decides to take action. As with all legal notices, a copy of the notice may be sent to one or more third parties who may make such notice available to the public. If you believe that one or more of your works have been copied in a way that constitutes copyright infringement, please provide a written notice of your claim of copyright infringement that is directed to achu’s designated agent as specified below along with the following information:
– A signature of a person authorized to act on behalf of the owner of the copyright interest that is allegedly infringed;
– A description, in reasonable detail (including any applicable URL address), of the copyrighted work that you claim has been infringed;
– A description, in reasonable detail, of where the material that you claim is infringing is located on the Properties;
– Your address, telephone number, and e-mail address;
– A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
– A statement by you, made under penalty of perjury, that the above information in your written notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
– Designated Agent: CEO, datapult Inc. 235-17 Industrial Parkway South, Aurora, Ontario, L4G 3V5; [email protected])
16. NO PRE-SCREENING OF POSTINGS.
achu is not responsible for screening, policing, editing, or monitoring your or another user’s Postings and encourages all of its users to use reasonable discretion and caution in evaluating or reviewing any Postings. Moreover, and except as provided above with respect to achu’s right and ability to delete or remove a Posting (or any part thereof), achu does not endorse, oppose, or edit any opinion or information provided by you or another user and does not make any representation with respect to, nor does it endorse the accuracy, acceptability, completeness, timeliness, or reliability of any advice, opinion, statement, or other material displayed, uploaded, or distributed by you or any other user. Nevertheless, achu. reserves the right to monitor, delete, access, read, preserve, disclose or take other action with respect to Postings (or parts thereof) that achu reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce this Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, (v) protect the rights, property or safety of achu, its users and the public or (vi) that achu believes in good faith violate this Agreement and/or are, or are potentially, unlawful or harmful to achu, its services, or goodwill. If you violate this Agreement, achu may, in its sole discretion, delete the unacceptable content from your Posting, remove or delete the Posting in its entirety, issue you a warning, and/or terminate your use of the Properties. Moreover, it is a policy of achu to take appropriate actions under the Digital Millennium Copyright Act under U.S. Copyright Law and other applicable intellectual property laws. If you become aware of any Posting(s) that violates these rules regarding acceptable behavior or content, you may contact achu as provided above.
Any submission, review or other feedback about achu, the Properties or other achu services (collectively, “Feedback”) submitted by you through the Properties that is received by achu will be deemed to include a royalty-free, perpetual, irrevocable, transferable, sublicensable and non-exclusive right and license for achu to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, and display (in whole or in part) worldwide, or act on any such Feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content, and you hereby waive any claim to the contrary.
You acknowledge that any breach, threatened or actual, of this Agreement, including, without limitation, violations or infringement of achu’s intellectual property or proprietary rights, may cause irreparable injury to achu, whereby such injury would not be quantifiable in monetary damages, and achu would not have an adequate remedy at law. In the event of such injury or potential for such injury you therefore hereby agree that achu shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this Agreement.
Any actual or attempted use of the Properties by you in violation of this Agreement may result in criminal and/or civil prosecution, including, without limitation, punishment under the Computer Fraud and Abuse Act of 1986 under U.S. federal law. achu reserves the right in its sole discretion to use, review, monitor, and/or record any information relating to your use of the Properties (“User Information”) without any prior notice to or permission from you, including, without limitation, by archiving content and/or communications submitted to and/or sent by you through the Properties. achu may share any User Information we obtain from you with any law enforcement organization in connection with any investigation or prosecution of possible criminal or unlawful activity. achu will also disclose User Information as required by any court order and/or subpoena. In addition, achu hereby reserves the right in its sole direction to at any time and without notice modify, suspend, terminate, and/or interrupt operation of or access to the Properties, or any portion thereof, in order to protect the Properties, achu intellectual property, achu, or the business interests of achu and/or its members and affiliates.
20. GOVERNING LAW.
This Agreement has been made in and will be construed and enforced in accordance with the laws of the State of New York as applied to agreements entered into and completely performed in the State of New York. You agree to personal jurisdiction and venue in the State of New York, New York County and waive any objection to such jurisdiction or venue. Any claim you might have against achu must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred. In any legal proceeding brought by achu, achu shall have the right to seek and be awarded all reasonable attorneys’ fees and costs in addition to any other relief, at law or in equity, to which achu may be entitled. achu makes no representation that the Properties are appropriate or available for use in other locations, and access to the Properties from states, territories, or nations where any aspect of the Properties are illegal is prohibited. You access the Properties on your own volition and are responsible for compliance with all applicable local laws with respect to your access and use of the Properties.
21. TERM AND TERMINATION.
This Agreement will take effect at the time you click “I ACCEPT”, download the Properties or begin using the Properties, whichever is earliest. This Agreement will terminate automatically if (i) you fail to comply with its terms and conditions; or (ii) cease all use of the Properties. Termination will be effective without notice. In addition, achu may in its sole discretion terminate this Agreement upon notice to you for any or no reason. Upon termination of this Agreement, any and all right(s) to use the Properties shall immediately cease and you must promptly return to achu (at the address listed below) all tangible embodiments of the Properties in your possession or control. Sections 2-4, 8, 10-12, 14, and 17-23 will survive the termination of this Agreement.
22. WAIVER & SEVERABILITY.
achu’s failure to insist upon strict performance of any of the terms and conditions of this Agreement by you will not operate as a waiver of any subsequent or other default or failure of performance. If any part of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable pursuant to applicable law or court order including, but not limited to, the warranty disclaimers and the liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision(s) that most clearly matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
8. Fitbit Inc
Fitbit is a registered trademark and service mark of Fitbit, Inc. achu is designed for use with the Fitbit platform. This product is not put out by Fitbit, and Fitbit does not service or warrant the functionality of this product.
24. CONTACT INFORMATION.
If you have any questions regarding this Agreement and/or the Properties, please contact achu at Attention: Michael Morra; [email protected]