Terms of Service
Your access to and use of the Services is expressly conditioned on your acceptance of and compliance with these Terms. By using the Services, you confirm that you understand and agree to the provisions contained in these Terms. If you do not understand these Terms, please contact us using the information below. If you do not agree to these Terms, you may not use the Services.
If you have been authorized to, and are helping another person visit our Services, these Terms constitute a legally binding agreement between both the helper and the person being helped and Company.
- THESE TERMS CONTAIN PROVISIONS THAT LIMIT OUR LIABILITY TO YOU AND REQUIRE YOU TO RESOLVE DISPUTES THROUGH ARBITRATION ON AN INDIVIDUAL BASIS AND NOT PART OF ANY CLASS OR REPRESENTATIVE ACTION. PLEASE REFER TO THE “DISPUTE RESOLUTION” SECTION BELOW.
- THE SERVICES ARE FOR CONSUMER EDUCATIONAL USE ONLY. THE SERVICES SHOULD NOT BE CONSIDERED, OR USED AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE OR TREATMENT, AND WHILE THE SERVICES PROVIDE INFORMATION, WE CANNOT AND DO NOT DIAGNOSE YOUR HEALTH CONDITIONS. ALWAYS CONSULT A PHYSICIAN OR OTHER HEALTHCARE PROVIDER.
- FOR PERSONAL MEDICAL ATTENTION AND ADVICE; DON’T USE THE SERVICES AS A SUBSTITUTE FOR CONSULTING WITH YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER. USE OF THE SERVICES IS NOT FOR MEDICAL EMERGENCIES. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911 IMMEDIATELY.
- THESE TERMS CONTAIN IMPORTANT REQUIREMENTS, RESTRICTIONS, CONDITIONS, AND OTHER PROVISIONS THAT AFFECT YOUR RIGHTS. WE ENCOURAGE YOU TO READ THEM CAREFULLY.
1. APPLICABILITY OF THESE TERMS
These Terms apply to all users of the Services, including users who are also contributors of content, information, and other materials or services in the Services. If you do not agree with these Terms, you are not authorized to access or use any portion of the Services in any manner, for any purpose. Your use of any Services with which we may be affiliated may be subject to additional terms, including terms and conditions provided by a third party (“Additional Terms”). If you do not agree with any of the Additional Terms, you are not authorized to use the Services which are subject to such Additional Terms.
In order to receive certain Services, you must register, as more fully described below in the section entitled “Registration.” The Services are available only to individuals who are at least eighteen (18) years old. You represent and warrant that you have the legal ability (capacity) to enter into a binding contract and are at least eighteen (18) years old, and that all registration information you submit is accurate and truthful. The Company may, in its sole discretion, refuse to offer the Services to any person or entity and change our eligibility criteria at any time for any reason. This provision is void where prohibited by law and the right to access the Services is revoked in such jurisdictions.
2. OUR SERVICES
As part of the Services, we offer programs, including as web-based health coaching services, for changing certain behaviors, which may result in health problems. Our Services may include, without limitation, the following:
- The ability to access health information shared by you and others through our Services, augmented with information collected about you through authorized third parties (e.g., suppliers of scales, or wearable devices such as Fitbit) and build an online community related to your weight loss and health goals.
- Access to other information about Company and our products and/or services through the various websites we own and operate, including, without limitation, the Newtopia.com website and domain name, and any other features, content, or applications offered from time to time by Company in connection therewith.
- The ability to interact with relevant Company personnel in a timely and effective manner from the time of initial application and throughout the course of program participation.
3. NO MEDICAL ADVICE
THE SERVICES DO NOT INCLUDE THE PROVISION OF MEDICAL CARE BY COMPANY. RATHER, THE SERVICES ENABLE REGISTERED USERS TO ACCESS HEALTH COACHING TOOLS AND RESOURCES, INCLUDING A HEALTH COACH, AND LIMITED WEB, TELEPHONE, EMAIL OR SMS (OR SIMILAR) SUPPORT. HEALTH COACHES ARE NOT LICENSED PHYSICIANS. COMPANY DOES NOT EMPLOY OR CONTRACT WITH PHYSICIANS TO PROVIDE MEDICAL CARE TO YOU. COMPANY DOES NOT OFFER MEDICAL ADVICE OR DIAGNOSES TO YOU, OR ENGAGE IN THE PRACTICE OF MEDICINE. OUR SERVICES ARE NOT INTENDED TO BE, AND DO NOT CONSTITUTE, A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR CARE AND ARE OFFERED FOR INFORMATIONAL PURPOSES ONLY. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS REGARDING YOUR MEDICAL CONDITION OR THE USE (OR FREQUENCY) OF ANY MEDICATION OR MEDICAL DEVICE. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ IN CONNECTION WITH OUR SERVICES. TO THE EXTENT YOU RECEIVE MEDICAL CARE CONSEQUENT TO THE SERVICES, YOUR TREATING MEDICAL PROFESSIONAL IS RESPONSIBLE FOR OBTAINING YOUR INFORMED CONSENT TO ANY MEDICAL DIAGNOSIS OR CARE, INCLUDING WITHOUT LIMITATION, YOUR CONSENT TO USE TELEMEDICINE IN THE COURSE OF YOUR CARE TO THE EXTENT SUCH CONSENT IS REQUIRED BY APPLICABLE STATE LAW. SUCH TREATEMENT IS SEPARATE FROM AND UNRELATED TO THE SERVICES PROVIDED BY COMPANY. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR ANY PARTICULAR DRUG, SUPPLEMENT, REGIMEN OR CARE IS SAFE, APPROPRIATE, OR EFFECTIVE FOR YOU.
4. NO EMERGENCY SERVICES
THE SERVICES ARE FOR NON-EMERGENCY PURPOSES ONLY. DO NOT ATTEMPT TO ACCESS EMERGENCY CARE THROUGH THE SERVICES. IF AT ANY TIME YOU ARE CONCERNED ABOUT YOUR CARE OR CARE, OR IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911 OR GO TO THE NEAREST OPEN EMERGENCY ROOM. THE SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY OR TIME-CRITICAL CALLS OR COMMUNICATIONS TO ANY TYPE OF HOSPITAL, LAW ENFORCEMENT AGENCY, MEDICAL CARE UNIT, OR ANY OTHER KIND OF EMERGENCY OR TIME-CRITICAL SERVICE. If Company becomes aware of or contemplates an emergency, Company may, at its sole discretion secure from any licensed hospital, physician, and/or medical personnel (“Emergency Responders”) any emergency care deemed necessary by Company for your immediate care. You understand and agree that, in the event that Company does take any action with respect to securing Emergency Responders on your behalf, you, not Company, will be solely responsible for payment of any and all medical services rendered in connection with any such care.
5. PRIVACY AND YOUR PERSONAL INFORMATION
6. CONDITIONS OF LICENSE
As a condition of use, you agree not to use the Services for any purpose that is prohibited by these Terms. The Services (including, without limitation, any Content or User Submissions (both as defined below)) are provided only for your own personal, non-commercial, limited use in accordance with these Terms.
You are responsible for all of your activity in connection with the Services. For purposes of these Terms, the term “Content” includes, without limitation, any advertisements, advice, suggestions, videos, audio clips, written forum comments, information, materials, data (obtained about you through the Services or from third parties), text, photographs, images, software, scripts, art, graphics, logos, button icons and interactive features generated, provided, or otherwise made accessible by or to Company or its partners on or through the Services.
Without limitation, you shall not, and shall not permit any third party to, directly or indirectly (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any content on or through the Services, that:
- infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity; is unlawful, threatening, abusive, harassing, defamatory, libellous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane;
- constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”);
- involves commercial activities and/or sales without Company’s prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes;
- contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Company or any third party; or
- impersonates any person or entity, including any employee or representative of Company.
Additionally, you shall not:
- take any action that imposes or may impose (as determined by Company in its sole discretion) an unreasonable or disproportionately large load on Company’s (or its third party providers’) infrastructure;
- interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services;
- bypass any measures Company may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services);
- run Maillist, Listserv, any form of auto-responder or “spam” on the Services; or (e) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Services.
You shall not (directly or indirectly):
- decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except to the limited extent applicable laws specifically prohibit such restriction;
- modify, translate, or otherwise create derivative works of any part of the Services; or
- copy, rent, lease, distribute, or otherwise transfer any or all of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
The Company reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if the Company is concerned that you may have violated these Terms), or for no reason at all.
As a condition to using certain aspects of the Services, you will be required to register with the Company and select a password and screen name (“Company User ID”). If you want to use those aspects of the Services, then you shall provide the Company with true, accurate, complete, and current registration information. Failure to do so shall constitute a breach of these Terms, which may result in immediate termination of your Company account. For greater certainty, but without limitation, you shall not (a) select or use as a Company User ID a name of another person with the intent to impersonate that person; (b) use as a Company User ID a name subject to any rights of a person other than you without appropriate authorization; or (c) use as a Company User ID a name that is otherwise offensive, vulgar or obscene. The Company reserves the right to refuse registration of, or cancel a Company User ID in its sole discretion. You are solely responsible choosing your Company User ID and for activity that occurs on your account. Additionally, you shall be responsible for setting your account password, as well as maintaining its confidentiality. You shall never use another user’s account without such other user’s express permission. You will immediately notify the Company in writing of any unauthorized use of your account, or other account related security breach of which you become aware.
8.ADDITIONALTERMS APPLICABLE TO NEWTOPIA GENETICS TM TESTING
As part of the Services, you may decide to participate in the Newtopia GeneticsTM program which includes taking a genetic sample of your cells and/or obtaining information on your family medical history. Newtopia Genetics TM is for research and educational use only. Your enrollment in Newtopia GeneticsTM program is effective upon acceptance of the following additional terms:
- You acknowledge that Newtopia Genetics is not designed to diagnose disease or medical conditions, and it is not intended to provide medical advice. If you have concerns or questions about what you learn through your Newtopia Genetics test, you should discuss them with your Newtopia Coach, your physician, or both.
- You acknowledge that for the Newtopia recommendations to be more efficacious, and for the integrity of the research, the sample provided, if you agree to provide a sample, must be from the person for whom the recommendation is performed.
- You represent and warrant that the sample you provide is of your own cells. Alternatively, if you providing a sample on behalf of a person for whom you have legal authorization, you represent and warrant the sample provided, if any, is a sample from that person.
- You grant permission to the Company, its employees, contractors, and assignees to perform genotyping services on the DNA extracted from the sample and to disclose the results of analyses performed on the DNA to Newtopia, which will share the results with you and only others that you specifically authorize.
- You represent and warrant that you are not an insurance company or an employer, or an agent on behalf of an insurer, employer or otherwise, attempting to obtain information about an insured person or an employee.
- You understand that the results of the genetic test may provide you with information that you do not anticipate.
- You understand that the testing process and the report provided to you may contain errors. You understand that if there are errors, the Newtopia recommendations may differ from those that the Company would have provided had there been no errors.
- You understand that sharing your genetic data with others could result in the information being used in ways adverse to your interests. We recommend that you share your results only with trusted third parties, such as your physician.
- You acknowledge that Newtopia may enter into agreements with third party organizations to conduct scientific research on data collected by Newtopia. You give permission to Newtopia, its assigns, and such third parties conducting scientific research to use your anonymized data for such research and to publish results of research as described herein, so long as the results do not personally identify you.
- You acknowledge that you have no expectation of any financial benefit from Newtopia as a result of having your genetic data processed or shared with research third parties.
Newtopia is not a genetic testing lab, a medical genetics company or a clinical service that diagnoses diseases or provides medical or clinical genetic tests, advice or reports. Newtopia uses the information from a physician prescribed genetic test, gathered and analyzed by a Clinical Laboratory Improvement Amendments laboratory, for research study purposes and to guide the customization of personalized lifestyle plans combining nutrition, exercise and behavior management.
You can cancel or change your decision at any time by writing Newtopia, Inc. at firstname.lastname@example.org, so that future sharing or use is not permitted. If you cancel/change your decision to share information, it may affect the availability to you of Newtopia services or products.
9.COMMUNICATING WITH YOU
As part of the Services, you may receive from us email and other communications, such as text messages, voice calls, alerts, and other electronic communications relating to, certain marketing communications, service announcements, and administrative messages. You consent to receive such communications and agree that any such communications that we send to you shall be legally effective when sent. You agree that any notices sent by us by email satisfy any requirement that the notices be provided in writing. If you do not agree, do not accept this Agreement. You may have the right to withdraw your consent to receiving certain electronic communications, and, when required by law, we will provide you with paper copies of all documents and records upon request. You may do so by contacting us at the phone number or email address provided under the “How to Contact Us” section at the end of these Terms. If you withdraw your consent, we reserve the right to terminate our agreements with you. To receive or access the notices we send via email, you must have Internet access and a computer or device with a compatible web browser. You will also need software capable of viewing files in Portable Document format (“PDF”). To retain the notices we send you, your device or computer must have the ability to download and store electronic communications, including PDF files. By accepting these terms, you verify that you are able to receive, access, and retain the notices we may send. You may change your email address for notification purposes at any time by contacting us at the phone number or email address provided under the “How to Contact Us” section at the end of these Terms.
PLEASE NOTE THAT WHEN YOU CONTACT US BY EMAIL OR TEXT, SUCH COMMUNICATION MAY NOT BE SECURE BECAUSE IT TRAVELS OVER UNSECURE COMMUNICATION LINES. BY SENDING ANY CONFIDENTIAL OR PERSONAL INFORMATION TO US VIA EMAIL OR TEXT, OR AGREEING TO RECEIVE ELECTRONIC COMMUNICATIONS FROM US THROUGH EMAIL OR TEXT, YOU ACKNOWLEDGE AND ACCEPT ANY RISK AND DAMAGE ARISING FROM DISCLOSURE OF SUCH INFORMATION IN THE COURSE OF TRANSMISSION.
10.FEES AND PAYMENT
The Company does not currently require payment of fees for Services, from participants. Fees are currently covered by employers of participants or by the health insurance program. However, the Company reserves the right to require payment by participants of fees for certain features of the Services. Should we do so, and notify you, and should you then elect to subscribe to such features after being notified of the feature and pricing, then you shall pay all applicable fees, as described on the Services in connection with such features. The Company reserves the right to change its price list and to institute new charges at any time, upon prior notice to you, which may be sent by physical mail, email or posted on the Services. Use of the Services by you following such notification constitutes your acceptance of any new or increased charges.
11.THIRD-PARTY WEBSITES AND MATERIALS
THE COMPANY HEREBY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY OF YOUR INFORMATION COLLECTED OR USED BY ANY THIRD PARTY SERVICE PROVIDER. IN ADDITION, YOU AGREE THAT THE COMPANY WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY INFORMATION, SOFTWARE, MATERIALS OR SERVICES PROVIDED BY ANY THIRD PARTIES, INCLUDING WITHOUT LIMITATION ANY THIRD PARTY SERVICE PROVIDERS LINKED THROUGH THE SERVICES, AND YOU AGREE TO ASSUME ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES, LOSS, OR OTHER HARM, WHETHER TO YOU OR TO THIRD PARTIES, RESULTING FROM OR ALLEGED TO HAVE RESULTED FROM YOUR USE OF THIRD PARTY MATERIALS AND THIRD PARTY WEBSITES.
12.COMPANY, CONTENT, INTELLECTUAL PROPERTY
The Services and the Content are protected under United States and international intellectual property, copyright, trademark, patent, trade secret and other laws. The Services and the Content are the sole property of the Company. You shall abide by all copyright notices, information, and restrictions contained in any Content accessed through the Services. You shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, create derivative works from, or otherwise exploit the Services or any Content or third party submissions or other proprietary rights not owned by you, (a) without the consent of the respective owners or other valid right, and (b) in any way that violates any third party right. You may, to the extent the Services expressly authorize you to do so, download or copy the Content, and other items displayed on the Services for download, for personal use only in accordance with these Terms, provided that you maintain all copyright, trademark and other notices contained in such Content. You shall not store any significant portion of any Content in any form. Copying or storing of any Content for other than personal, non-commercial use in accordance with these Terms is expressly prohibited without prior written permission from the Company, or from the copyright holder identified in such Content’s copyright notice. You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. Under no circumstances will the Company be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred in connection with use of or exposure to any Content posted, emailed, accessed, transmitted or otherwise made available via the Services. Subject to your compliance with these Terms, as revised (and any other terms governing your use of the Services) you are granted a personal, non-exclusive, non-transferable, non-sublicenseable, revocable, limited right to enter our Site and use the Services. All rights in and to the Services not expressly granted in these Terms are hereby reserved and retained by the Company. Newtopia and its logo, (the “Company Marks”) are trademarks or registered trademarks of Newtopia, Inc. Other trademarks, service marks, graphics and logos appearing on the Services may be the property of third parties (the “Third Party Marks”). Neither your use of the Services nor these Terms grant you any right, title or interest in or to, or any license to reproduce or otherwise use, the Company Marks or any Third Party Marks.
13.YOUR USE OF THE SERVICES IS AT YOUR OWN RISK
If you rely on the Services, you do so solely at your own risk. We are not responsible for the accuracy, reliability, availability, effectiveness, or correct use of information you receive through the Services. Use of the Services should not replace your good judgment and common sense. The Services are not a replacement for or intended to be a substitute for medical advice from a qualified Health Care Provider. We recommend that you consult with a qualified Health Care Provider with respect to any matter relating to your physical or mental health, especially symptoms that may require diagnosis or medical attention. Only a qualified Health Care Provider can provide you with advice on what is safe and effective for you. Never disregard professional medical advice or delay seeking it because of something you have read/seen on the Services.
The Services may provide you with the ability to create, upload, submit, disclose, distribute or otherwise post (hereafter, “posting”) content (including personal health information), videos, audio clips, written forum comments, data, text, photographs, software, scripts, graphics, works of authorship or other information related to the Services, including without limitation any feedback or suggestions for improvements, enhancements, or error corrections (collectively, “User Submissions”).
By making User Submissions available on or through the Services you hereby grant to us a non-exclusive, transferable, sublicensable, worldwide, perpetual, royalty-free license to use, copy, modify, publicly display, publicly perform, reproduce, translate, create derivative works from, and distribute User Submissions, in whole or in part, including your name and likeness, in any media, advertising and promotion, including social and electronic means.
You are responsible for User Submissions. You represent and warrant that you own User Submissions or that you have all rights necessary to grant us the license, releases and waivers with respect to the Company’s use of User Submissions as described in these Terms. If you have not yet signed or entered into a Photo/Video/Testimonial release form with the Company for the sharing of User Submissions, you will promptly do so or will be deemed to have done so by virtue of your acceptance of these Terms and sharing of User Submissions to and/or via the Services.
You understand and agree that the Company has the right to create, use, and disclose such User Submissions after they have been de-identified in accordance with 45 CFR § 164.514. You understand that the Company shall have the right to de-identify, reformat, excerpt, or translate any materials, content or information submitted by you; and that all information publicly posted or privately transmitted through the Services is the sole responsibility of the person from which such content originated and that the Company will not be liable for any errors or omissions in any content; and that Company cannot guarantee the identity of any other users with whom you may interact in the course of using the Services. The Company does not endorse and has no control over any User Submissions. The Company cannot guarantee the authenticity of any data which users may provide about themselves. The Company has no obligation to you to monitor the Services, Content, or User Submissions. The Company may remove any User Submission at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Submission), or for no reason at all. You understand that the Company shall have the right, but not the obligation, to record or monitor for quality assurance and training purposes all telephonic, e-mail and other forms of communication. By accepting these Terms, you consent to any such recording or saving.
You acknowledge that you have no right to inspect or approve of any printed matter that may be used in connection with User Submissions, and that the matter and materials in which User Submissions are used may be modified, edited or combined with other materials at the Company’s sole discretion. We may, in our sole discretion, alter, remove, or refuse to display any of User Submissions, and may forbid you from posting, uploading, storing, sharing, sending, or displaying User Submissions to and via the Services. You understand and consent to the possibility that any of User Submissions may become distorted in character and/or form.
You, on behalf of yourself, your heirs, executors and administrators, hereby forever waive, release, discharge and agree to hold harmless the Company and its producers and photographers or videographers, and their respective officers, directors, employees, agents, successors and assigns and anyone authorized by any of them, including any person or firm publishing and/or distributing the finished product, from any and all losses, damages, costs, expenses, rights, claims, demands, liability and actions, which may result from any use of the advertising or other materials incorporating or relating to User Submissions, including any distortion of likeness that may occur in the taking, processing, reproduction, publication or distribution of such photographs or videos, including without limitation any claim for libel, slander, defamation, invasion of right or privacy/publicity, false light or any other claim arising from or relating to the exercise of rights granted the foregoing Sections.
15.CHANGES IN SERVICE
Newtopia may change or discontinue, temporarily or permanently, any feature or component of the Services at any time without notice. The Company may change or terminate, temporarily or permanently, your access to all or any feature or component of the Services at any time, with or without cause, with or without notice, which may result in the forfeiture and destruction of all information associated with your account. Upon termination of your right to use our Services or our termination of the Services, all licenses and other rights granted to you by these Terms will immediately terminate. If you wish to terminate your account, you may do so by notifying your Health Coach. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability. The Company is not liable to you or to any third party for any modification, suspension, or discontinuance of any feature or component of the Services. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by the Services without prior notice to you.
THE COMPANY HAS NO SPECIAL RELATIONSHIP WITH OR FIDUCIARY DUTY TO YOU. THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY CONTENT) ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. THE COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, VALIDITY, ACCURACY, OR RELIABILITY OF THE SERVICES. THE COMPANY, AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (A) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS OR THE STATED PURPOSE. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.
SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You shall defend, indemnify, and hold harmless the Company, its affiliates and each of its, and its affiliates employees, contractors, directors, officers, suppliers successors, assigns and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to: (a) your use or misuse of, or access to, the Services, Content or otherwise from your User Submissions; (b) your breach of these Terms; (c) your violation or alleged violation of any applicable federal, state or local laws, rules and/or regulations; or (d) infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. The Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with the Company in asserting any available defenses.
18.LIMITATION OF LIABILITY.
IN NO EVENT SHALL THE COMPANY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY CONTENT): (A) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING); (B) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION); (C) FOR YOUR RELIANCE ON THE SERVICES; OR (D) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) ONE-HUNDRED U.S. DOLLARS ($100.00).
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NEWTOPIA AND YOU.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU IF YOU RESIDE IN SUCH A JURISDICTION. WE ARE NOT LIABLE TO ANY PERSON OR USER FOR ANY HARM CAUSED BY THE NEGLIGENCE OR MISCONDUCT OF ANY OTHER PARTY.
When using the Services, information will be transmitted over a medium which may be beyond the control and jurisdiction of the Company, its participants and/or its vendors. Accordingly, the Company assumes no liability for or relating to the delay, unintended disclosure, failure, interruption or corruption of any data or other information transmitted in connection with use of the Services.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES US TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER.
YOU AND NEWTOPIA AGREE THAT ANY DISPUTE BETWEEN YOU AND NEWTOPIA ARISING OUT OF OR RELATING TO THESE TERMS AND THE SERVICES (COLLECTIVELY, “DISPUTES”) WILL, TO THE EXTENT PERMITTED BY LAW, BE GOVERNED BY THE ARBITRATION PROCEDURE OUTLINED BELOW, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIMS QUALIFY.
THE PARTIES AGREE THAT THE ARBITRATOR, AND NOT ANY FEDERAL, STATE, OR LOCAL COURT OR AGENCY, SHALL HAVE EXCLUSIVE AUTHORITY TO RESOLVE ANY DISPUTES RELATING TO THE INTERPRETATION, APPLICABILITY, ENFORCEABILITY OR FORMATION OF THIS AGREEMENT TO ARBITRATE, INCLUDING ANY CLAIM THAT ALL OR ANY PART OF THIS AGREEMENT TO ARBITRATE IS VOID OR VOIDABLE. THE ARBITRATOR SHALL ALSO BE RESPONSIBLE FOR DETERMINING ALL THRESHOLD ARBITRABILITY ISSUES, INCLUDING ISSUES RELATING TO WHETHER THE TERMS ARE UNCONSCIONABLE OR ILLUSORY AND ANY DEFENSE TO ARBITRATION, INCLUDING WAIVER, DELAY, LACHES OR ESTOPPEL.
TO THE FULLEST EXTENT PERMITTED BY LAW: (I) YOU EXPRESSLY WAIVE ANY RIGHT YOU MAY HAVE TO ARBITRATE A DISPUTE AS A CLASS ACTION; AND (II) YOU ALSO EXPRESSLY WAIVE YOUR RIGHT TO A JURY TRIAL.
THE ARBITRATION WILL BE HELD IN NEW YORK. IF THIS LOCATION IS NOT CONVENTIENT FOR YOU, PLEASE LET US KNOW. WE WILL WORK WITH YOU TO DETERMINE A MUTUALLY CONVENIENT LOCATION. ANY DISAGREEMENTS REGARDING THE FORUM FOR ARBITRATION WILL BE SETTLED BY THE ARBITRATOR.
IN THE EVENT THAT ARBITRATION IS NOT PERMITTED BY APPLICABLE LAW: (I) THE PARTIES EXPRESSLY AGREE THAT ANY DISPUTE WILL BE BROUGHT AND HEARD SOLELY AND EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF COMPETENT JURISDICTION LOCATED IN NEW YORK CITY, NEW YORK. THE PARTIES WAIVE ANY PLEA OR DEFENSE THAT SUCH COURTS ARE NOT THE APPROPRIATE VENUE OR THAT THEY ARE NOT SUBJECT TO PERSONAL JURISDICTION OF SUCH COURTS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION, TO THE EXTENT EITHER PARTY IN ANY MANNER HAS VIOLATED OR THREATENED TO VIOLATE THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, THE NON-BREACHING PARTY MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE RELIEF IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION.
- ADMISSIBILITY OF TERMS: A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
- GOVERNING LAW: These Terms shall be governed by and construed in accordance with the laws of the New York state, excluding its conflicts of law rules, and the United States of America.
- ARBITRATION PROCEDURES: Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by binding arbitration using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Comprehensive Arbitration Rules and Procedures of JAMS.
- ARBITRATION FEES: If you initiate arbitration, your arbitration fees will be limited to the filing fee set forth by JAMS. Regardless of who initiates arbitration, the Company will pay your share of arbitration fees (not including your attorneys’ fees) up to a maximum of $2,500. If the arbitrator rules against the Company, in addition to accepting whatever responsibility is ordered by the arbitrator, the Company will reimburse your reasonable attorneys’ fees and costs up to a maximum of $5,000, regardless of who initiated the arbitration, unless the arbitrator finds some or all of your claims to be frivolous or to have been brought in bad faith. In addition, if the arbitrator rules in the Company’s favor, it will not seek reimbursement of our attorneys’ fees and costs, regardless of who initiated the arbitration, unless the arbitrator finds some or all of your claims to be frivolous or to have been brought in bad faith.
- NO CLASS ACTIONS. YOU MAY ONLY RESOLVE DISPUTES WITH COMPANY ON AN INDIVIDUAL BASIS, AND MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT ALLOWED UNDER OUR AGREEMENT.
- LIMITATION ON CLAIMS. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE, OR ELSE THAT CLAIM OR CAUSE OF ACTION WILL BE BARRED FOREVER. 21.INTEGRATION AND SEVERABILITY
Except as otherwise stated herein, these Terms constitute the entire and exclusive understanding and agreement between you and the Company with respect to the Services, and these Terms supersede all prior or contemporaneous oral or written communications and proposals (between you and the Company with respect to the Services.
If any provision of these Terms is found to be unenforceable or invalid by a court of competent jurisdiction or arbitrator, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
The Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond the Company’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference).
These Terms are personal to you. You may not assign, delegate, transfer or sub-license these Terms, by operation of law or otherwise, without the Company’s prior written consent. The Company may assign, transfer, or delegate any of its rights and obligations hereunder without your consent. Our licensors, if any, may be entitled to enforce these Terms as third-party beneficiaries. There are no other third-party beneficiaries to these Terms. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.
No agency, partnership, joint venture, or employment relationship is created as a result of these Terms and neither party has any authority of any kind to bind the other in any respect.
All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
The Company’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Newtopia. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise
23.DIGITAL MILLENNIUM COPYRIGHT ACT POLICY
Newtopia respects the intellectual property of others and asks that users of the Services do the same. To comply with the Digital Millennium Copyright Act (contained within Title 17, U.S. Code) (the “DMCA”), Newtopia has implemented the following policy, which provides for the prompt removal of your content that allegedly infringes others’ intellectual property rights. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want the Company to delete, edit, or disable the material in question, please provide the following information from the Company’s Designated Agent (listed below):
- a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
- identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the Company to locate the material;
- information reasonably sufficient to permit the Company to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted;
- a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to the Company’s designated agent at:
Newtopia’s Designated Agent: The following the Company’s Designated Agent for receiving notifications of claimed copyright infringement:
4101 Yonge Street, Suite 706,
Toronto, Ontario, Canada M2P 1N6.
Attn. Legal Department.
Counter-Notification to Claimed Copyright Infringement: Under the DMCA, if a notice of copyright infringement has been filed against your User Submission, you may make a counter-notification with Newtopia’s Designated Agent listed above. The counter-notification must be in writing and include the following information:
- your physical or electronic signature;
- identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- a statement by you under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification; and
- your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which you are located (or in the State of New York, U.S.A., if you reside outside of the U.S.), and that you will accept service of process from the person who filed the notice of copyright infringement or an agent of such person.
If Newtopia receives a valid counter-notification, it may reinstate the removed or disabled content in accordance with the DMCA. Please note that under the DMCA, any person who knowingly makes material misrepresentations in a notification of claimed infringement or in a counter-notification may be liable for damages.
24.CHANGES TO THESE TERMS
We reserve the right, at our discretion, to modify, replace, update or change any of these Terms or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time and for any reason. The Company shall not be liable to you for any such modification, replacement, suspension or discontinuation of your rights to access and use the Services. However, if we make any material changes to these Terms, we will notify registered users by e-mail, post a notice on our home page and/or alert you to such changes by other similar means. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. We will notify you of any changes. If you accept these Terms, but later decide that you want to terminate your account, please contact Participant Support at email@example.com, and the Company will verify and complete your request.
In the event that there is a conflict between these Terms and any additional terms, the additional terms will control.
If you have questions or comments about these Terms, you may contact the Company at the following address: Newtopia, Inc. 4101 Yonge Street, Suite 706, Toronto, Ontario, Canada M2P 1N6 or by email at firstname.lastname@example.org.