Last Update on: July 20, 2022
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 with Newtopia, Inc. (“Newtopia,” “Newtopia,” “we,” or “us”) 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.
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.
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 DO NOT 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.
The Terms are divided into the following sections below:
APPLICABILITY OF THESE TERMS
NO MEDICAL ADVICE
NO EMERGENCY SERVICES
PRIVACY AND YOUR PERSONAL INFORMATION
CONDITIONS OF LICENSE
COMMUNICATING WITH YOU
FEES AND PAYMENT
THIRD-PARTY WEBSITES AND MATERIALS
CONTENT AND INTELLECTUAL PROPERTY
YOUR USE OF THE SERVICES IS AT YOUR OWN RISK
LIMITED LICENSE TO USE THE SERVICES
NO UNLAWFUL OR PROHIBITED USE
CHANGES IN SERVICE
INDEMNIFICATION AND RELEASE
LIMITATION OF LIABILITY
THIRD PARTY SERVICES, LINKS & INTEGRATIONS
FEEDBACK & NON-SOLICITATION POLICY
MODIFYING & TERMINATING THE SITE OR SERVICES
CHANGES TO THE TERMS OF SERVICE
We may change or revise these Terms from time to time in our sole discretion. Please print or save a copy of these Terms for your records and periodically visit this page to review the current Terms. Your access and use of the Services will be subject to the most current version of the Terms. If you disagree with any change to the Terms, you may close your account (if applicable) and refrain from using the Services. Your use of the Services after such revised Terms are made available will signify your acceptance of such revised Terms and your agreement to be bound by them.
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 18 years old. You represent and warrant that you have the legal capacity to enter into a binding contract and are at least 18 years old and that all registration information you submit is accurate and truthful.
Newtopia 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. The previous sentence is inapplicable where prohibited by law and the offer of the Services is revoked in such jurisdictions.
As part of the Services, we offer programs, including but not limited to web-based health coaching services and personalized lifestyle planning, for changing certain behaviors, which may result in health problems. Our Services may include, without limitation, the following:
Access to health information shared by you and others through our Services, augmented with information collected about you through authorized third parties (such as the 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 Newtopia 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 Newtopia in connection therewith.
Interaction with relevant Newtopia personnel in a timely and effective manner from the time of initial application and throughout the course of program participation.
THE SERVICES DO NOT INCLUDE THE PROVISION OF MEDICAL CARE BY NEWTOPIA. 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. NEWTOPIA DOES NOT EMPLOY OR CONTRACT WITH PHYSICIANS TO PROVIDE MEDICAL CARE TO YOU. NEWTOPIA 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 LAW. SUCH TREATMENT IS SEPARATE FROM AND UNRELATED TO THE SERVICES PROVIDED BY NEWTOPIA. NEWTOPIA DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR ANY PARTICULAR DRUG, SUPPLEMENT, REGIMEN OR CARE IS SAFE, APPROPRIATE, OR EFFECTIVE FOR YOU.
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 OR OTHER HEALTH 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 Newtopia becomes aware of or contemplates an emergency, Newtopia may, at its sole discretion secure from any licensed hospital, physician, and/or medical personnel (“Emergency Responders”) any emergency care deemed necessary by Newtopia for your immediate care. You understand and agree that, in the event that Newtopia does take any action with respect to securing Emergency Responders on your behalf, you, not Newtopia, 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
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 Newtopia 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 Newtopia’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 Newtopia or any third party; or
impersonates any person or entity, including any employee or representative of Newtopia.
Additionally, you shall not directly or indirectly,
take any action that imposes or may impose (as determined by Newtopia in its sole discretion) an unreasonable or disproportionately large load on Newtopia’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 Newtopia 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;
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; and
copy, rent, lease, distribute, or otherwise transfer any or all of the rights that you receive hereunder.
You shall abide by all applicable local, provincial, national and international laws and regulations.
Newtopia 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 Newtopia 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 Newtopia and select a password and screen name (“Newtopia User ID”). If you want to use those aspects of the Services, then you shall provide Newtopia 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 Newtopia account. For greater certainty, but without limitation, you shall not (a) select or use as a Newtopia User ID a name of another person with the intent to impersonate that person; (b) use as a Newtopia User ID a name subject to any rights of a person other than you without appropriate authorization; or (c) use as a Newtopia User ID a name that is otherwise offensive, vulgar or obscene. Newtopia reserves the right to refuse registration of, or cancel a Newtopia User ID in its sole discretion. You are solely responsible choosing your Newtopia 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 Newtopia in writing of any unauthorized use of your account, or other account related security breach of which you become aware.
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 the Terms. 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 “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.
Your right to access and use the Services is personal to you and is not transferable by you to any other person or entity. You are entirely responsible for maintaining the confidentiality of your user ID and password and for any and all activities that occur under your account. You may not use the account of any other user, without that user’s permission.
You agree to immediately notify Newtopia of any unauthorized use of your password or username or any other breach of security and to select a new username and password if you believe your account has been compromised. If we suspect any unauthorized access to your account, upon our request, you agree to promptly change your username and password and take any other related action as we may reasonably request.
Newtopia cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. Each user acknowledges and agrees that: (a) Newtopia will not have any liability to any user for any unauthorized agreements or transactions made using your username or password; and (b) the unauthorized use of your username and password for your Account could cause you to incur liability to Newtopia and other users.
There is no guarantee that you will be accepted as a registered user of the Services. We reserve the right to deny you access to the Services or any part thereof, in order to comply with applicable law, or to maintain or restore security or performance to the Services. We may also do so if we reasonably believe you are in breach of these Terms or your Account has been or may be used by an unauthorized person. Should we ask a user for proof of identification, and that identification is not submitted in the allotted time, we reserve the right, in our sole discretion, to cancel any account associated with that user.
Newtopia does not currently require payment of fees for Services from participants. However, Newtopia 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. Newtopia 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.
10. Third-Party WebSites and Materials
NEWTOPIA 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 NEWTOPIA 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.
11. Content and Intellectual Property
The Services and the Content are protected under Canadian and international intellectual property, copyright, trademark, patent, trade secret and other laws. The Services and the Content are the sole property of Newtopia. 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 Newtopia, 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 Newtopia 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 Newtopia. Newtopia and its logo (the “Newtopia 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, Newtopia Marks or any Third Party Marks.
12. 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.
13. LIMITED LICENSE TO USE THE SERVICES
Provided you adhere to all of these Terms, Newtopia grants you a limited, non-exclusive, non-transferable, freely revocable license to use the Services for your personal, non-commercial use only. Newtopia may terminate this license at our sole discretion, at any time for any reason or no reason. Any unauthorized use of the Site or Service will violate these Terms and may violate applicable law. We reserve all of our rights in respect of such violations, including our rights to pursue any available legal or equitable remedy or recourse and seek recovery from you for the expense of so doing.
14. NO UNLAWFUL OR PROHIBITED USE
You may only use the Services for your personal, non-commercial use and as permitted by the features of the Site and the Service and these Terms. You agree that you will not use the Services in connection with, any illegal activity or goods, or in connection with any prohibited industries or activities that Newtopia may specify from time to time, or where prohibited by law. You further agree that you will not use the Services or its supported web components for any purpose that violates any applicable federal, provincial/territorial, local or international law or any regulations having the force of law. Such unlawful or prohibited activities include, but are not limited to:
Damaging, disabling, impairing overburdening or otherwise impairing the Services, servers or networks of Newtopia.
Interfering with any other party’s use of the Services.
Attempting to gain unauthorized access to the Services, through hacking, password mining or any other means.
Accessing or altering data, including personal data of other users, when you are not authorized to do so.
Using data collected from the Services to contact individuals, companies, or other persons or entities, including without limitation for any direct marketing activity.
Modifying, moving, adding to, deleting or otherwise tampering with the information contained related to the Services.
Making the functionality of the Services available to multiple users through any means.
Using any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated interface not authorized by us to access the Services, scrape content, extract data or otherwise interfere with or modify the rendering of Services pages or functionality.
Decompiling, reverse engineering, disassembling or unlawfully using or reproducing any of the software, copyrighted or trademarked material, trade secrets, or other proprietary information contained in the Services.
Posting to the Site or transmitting to or from us any unlawful, threatening, libelous, defamatory, obscene, pornographic, or other materials that violate any law.
You agree to comply with applicable laws and regulations and to not participate in, facilitate, or further illegal activities with respect to the Services. You also agree to immediately notify us if you learn of a security breach or other illegal activity in connection with the Services.
We will investigate occurrences that may involve such violations and may involve, and co-operate with, law enforcement authorities in prosecuting users. You acknowledge and agree that we can take any technical, legal, and other actions that we deem, in our sole discretion, necessary and appropriate, without notice to you, in order to prevent or remediate any violations and to enforce these Terms.
We reserve the right to suspend or terminate any Account that Newtopia determines, in our sole discretion, is misusing the Services in breach of these Terms, or in violation with applicable laws.
When you access the Services through a mobile network, your network or roaming provider’s messaging, data and other rates and fees will apply and you will be solely responsible for all such charges. The Services may not work with your network provider or device.
The Services may periodically be updated with tools, utilities, improvements, third party applications, or general updates to improve the Service. By using our Services, you agree to receive these software updates.
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 Newtopia’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 Newtopia 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 Newtopia has the right to create, use, and disclose such User Submissions after they have been de-identified. You understand that Newtopia 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 Newtopia will not be liable for any errors or omissions in any content; and that Newtopia cannot guarantee the identity of any other users with whom you may interact in the course of using the Services. Newtopia does not endorse and has no control over any User Submissions. Newtopia cannot guarantee the authenticity of any data which users may provide about themselves. Newtopia has no obligation to you to monitor the Services, Content, or User Submissions. Newtopia 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 Newtopia 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 Newtopia’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 Newtopia 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.
Newtopia may change or discontinue, temporarily or permanently, any feature or component of the Services or the programs we offer at any time without notice. Newtopia 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 contacting us as described below. 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. Newtopia 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.
Newtopia 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. NEWTOPIA DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, VALIDITY, ACCURACY, OR RELIABILITY OF THE SERVICES. NEWTOPIA, 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.
When you access our Services, you assume all risk associated with any viruses, worms, Trojan horses and other destructive items. You should take any necessary precautions before you access our Site in respect of any such potential risks. Without limiting the foregoing, we are not responsible or liable for: (a) any malicious code, delays, inaccuracies, errors, or omissions arising out of your use of the Site; (b) the availability of telecommunication services from your provider and access to the Site at any time or from any location; (c) any loss, damage or security intrusion of the telecommunication services; and (d) any disclosure of information to third parties or failure to transmit any data, communications or settings connected with the Services. You understand, acknowledge and agree that you are assuming the entire risk as to the accuracy, timeliness, completeness, correctness, authenticity, security and validity of any and all features and functions of the Services, including, without limitation, content associated with your use of the Services.
The content on the Services may contain typographical errors or other errors or inaccuracies, and may not be complete or current. Newtopia reserves the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice to you. Newtopia will not, however, guarantee that any such errors, inaccuracies, or omissions will be corrected. Newtopia reserves the right to refuse to provide any aspect of the Services that is based on inaccurate or erroneous information related to the Services, including, without limitation, incorrect or out-of-date information, or for any other lawful reason.
SOME CANADIAN JURISDICTIONS MAY NOT ALLOW THE WARRANTY LIMITATIONS SET OUT ABOVE, SO THE ABOVE LIMITATIONS MAY NOT APPLY IN WHOLE OR IN PART TO YOU.
20. Indemnification AND RELEASE
You shall defend, indemnify, and hold harmless Newtopia, its affiliates and each of its, and its affiliates employees, contractors, directors, officers, suppliers successors, assigns and representatives from all liabilities, claims, and expenses 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, provincial 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. Newtopia 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 Newtopia in asserting any available defenses. We will provide notice to you promptly of any such claim, suit, or proceeding and may choose in our sole discretion to assist you, at your expense, in defending any such claim, suit or proceeding. You shall not in any event settle any matter without our written consent.
To the greatest extent permitted by applicable law, you hereby expressly waive, release and covenant not to sue Newtopia or any Third Party Provider (collectively, “Releasees”) from any and all claims and liabilities which you or your heirs, executors, administrators and next-of-kin have or may in the future have, on account of injury, illness, disability or death arising out of or attributable to your use of or reliance on the Services, due to any cause whatsoever, without limitation, whether arising out of the negligence of Newtopia, breach of contract, or breach of any statutory or other duty of care.
IN NO EVENT SHALL NEWTOPIA, 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.
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 Newtopia, its participants and/or its vendors. Accordingly, Newtopia 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.
You AND nEWTOPIA agree that any CLAIMS will, to the GREATEST extent permitted by law, be governed by the arbitration procedure outlined below, except that you may assert claims in your local small claims court if your claims qualify.
To the greatest extent permitted by applicable law, any Claims and this provision agreeing to arbitrate, including any question regarding each of the Terms’ existence, interpretation, enforcement, validity, applicability, breach or termination, or the relationship created by these Terms, shall be submitted to final and binding arbitration, without a right of appeal, except if the Claims are within the jurisdiction of your local small claims court. The seat of the arbitration shall be Toronto, Ontario and the arbitration shall be conducted in English. The arbitration shall be conducted by a single arbitrator who shall be agreed upon by all parties to the arbitration or, failing such agreement, the arbitrator shall be appointed by the International Centre for Dispute Resolution Canada (“ICDR Canada”), acting only as appointing authority, with the fees of the appointing authority to be initially paid by Newtopia but may be ordered reimbursed to Newtopia by the arbitrator in the award. The parties to the arbitration will equally share the costs of the arbitrator and each party shall bear its own costs involved in preparing and presenting its case during the course of the arbitration, subject to the arbitrator in the award allocating all or part of such costs to the prevailing party. If you demonstrate that you cannot afford payment of the arbitrator’s fees, the arbitrator may require the fees to be initially paid by Newtopia, up to $2,500, but may be reimbursed to Newtopia by the arbitrator in the award.
Except as may be required by law, the arbitrator, the parties and their representatives may not disclose the existence, content, or results of any arbitration hereunder without the prior written consent of the parties.
If, for any reason, a Claim proceeds in court rather than by way of arbitration to the extent permissible by applicable law, we each waive any right to a jury trial. To the greatest extent permitted by applicable law, any and all proceedings to resolve Claims will be conducted only on an individual basis and not in a class, consolidated or representative action.
Regardless of any statute or law to the contrary, any claim 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.
23. THIRD PARTY SERVICES, LINKS & INTEGRATIONS
Newtopia prohibits third parties from producing materials which contain links to the Site or framing of content contained within the Site without our prior written consent, which we may withhold in our sole and absolute discretion. We reserve the right to disable any such unauthorized links or framing. Newtopia has no responsibility or liability for any material that may contain links to the Site.
24. FEEDBACK & NON-SOLICITATION POLICY
We welcome your feedback on our Site and Service. If you want to send us your feedback, we simply request that you send it to us through the Contact Us link found below. In your feedback or other communications with us, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services (collectively, “Unsolicited Ideas and Materials”). We will be free to use or copy all or a portion of any Unsolicited Ideas and Materials you provide to us or post on the Site, including any ideas, inventions, concepts, techniques or know-how disclosed, for any purposes. Such purposes may include disclosure to third parties and/or developing, creating and/or marketing goods or services.
25. MODIFYING & TERMINATING THE SITE OR SERVICES
We are constantly changing and improving our Services. We may add or remove functionalities or features, and we may suspend or stop all or part of the Site or Service altogether. You can stop using our Services or cancel your account at any time. Newtopia may also stop providing Services to you, or add or create new limits to our Services at any time.
We may suspend or terminate your right to use our Services at any time, in the event that you breach these Terms, for any reason, or for no reason at all, in our sole discretion, and without prior notice to you. After such termination, Newtopia will have no further obligation to provide the Services. Upon termination of your right to use our Service or our termination of the Services to you, all licences and other rights granted to you by these Terms will immediately terminate.
26. CHANGES TO THE TERMS OF SERVICE
We may amend these Terms from time to time as our business evolves, in response to legal developments, as new technologies become available, or as we introduce new features, products or services.
When we make changes to these Terms we will revise the “Last Updated” date at the top of the Terms. You should check back here periodically to find out if any changes have been made to the Terms. If we make material changes we will, as appropriate prominently post these changes to the Services’ website or notify registered users directly. We will provide you with an opportunity to accept or reject a material change. Material changes will become effective no sooner than 30 days after they are posted. However, changes addressing new functions or changes made for legal reasons will be effective immediately.
If you disagree with any change to the Terms, you may close your account and refrain from using the Services. Continuing to use the Services after we post or communicate a change signifies that you consent to the revised Terms.
Communications: All notices and other communications to Newtopia under these Terms must be in writing and must be delivered either by email or by internationally recognized courier service to the contact information set out below under “Contact Us”. When you contact us or register for an account, you consent to receive communications from us electronically related to your account and your use of the Services. You agree that any such email communication shall constitute legal written communication in compliance with any and all legal notice requirements, to the greatest extent permitted by applicable law.
Relationship: You acknowledge and agree that no agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship is intended or created by these Terms or by your use of the Services.
Waiver: If you do not comply with these Terms, and we do not take action right away, this does not mean that we are waiving or giving up any rights that we may have (including, but not limited to, taking action in the future).
Severability: Any provision of these Terms which is unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Assignment: These Terms and any rights, licenses and privileges granted by these Terms, may not be transferred or assigned by you, but may be assigned or transferred by Newtopia without restriction and without notice to you.
Interpretation: These Terms shall endure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. The division of these Terms into paragraphs or other subdivisions and the insertion of headings are for convenience of reference only and do not affect the construction or interpretation of these Terms.
Governing Law: The Site is operated from Newtopia’s offices located within the Province of Ontario, Canada, but can be accessed from jurisdictions whose laws may differ from those of the Province of Ontario. Unless the applicable laws of your jurisdiction require that the laws of your jurisdiction govern, these Terms shall be governed by and construed in accordance with the laws of the Province of Ontario and of the laws of Canada applicable therein, and, subject to the dispute resolution provision above, any dispute is exclusively to be submitted to a court of competent jurisdiction in the judicial district of Toronto, Province of Ontario, Canada. Newtopia makes no warranty or representation that any or all content and/or Service provided on or through the Site or any other materials or services referenced therein, are lawful in other jurisdictions or available for use in all jurisdictions. You agree that if you access the Site outside of Ontario, you are responsible for compliance with local laws.
Electronic Signatures, Counterparts and Electronic Delivery: Client agrees that electronic signatures, whether digital or encrypted, may be used for any document transmitted via the Newtopia Service that requires a signature and such electronic signatures shall have the same force and effect as manual signatures. Client further agrees that such document may be signed in counterpart copies and such copies shall be binding on the parties to that agreement. Electronic signature means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including facsimile or email electronic signatures. Delivery of an executed copy of any document delivered via the Newtopia Service by electronic transmission constitutes valid and effective delivery.
Language of Terms: The parties have agreed that these Terms and all related documents be drafted in English. Les parties aux présentes ont demandé et convenu que le présent contrat et tout document y afférent soient rédigés en anglais.
If you have questions or comments about these Terms, you may contact Newtopia at the following address: Newtopia, Inc. 4101 Yonge Street, Suite 706, Toronto, Ontario, Canada M2P 1N6 or by email at email@example.com.