Effective September 16, 2016
Last Updated November 28, 2018
Use of the Service
General: Subject to the terms and conditions of this Agreement, and during the term of this Agreement, Nutrimedy grants you a non-exclusive and non-transferable right to access and use the Service in accordance with the terms of this Agreement, and any documentation made available to you by Nutrimedy solely for purposes of your personal use of the Services. This Service is limited to users in the United States. The Service is enabled by technology, software and certain content delivered electronically. You agree that you will not reverse-engineer, decompile, disassemble, translate, or otherwise attempt to obtain access to the source code of, any aspect of the Services, including any and all technology, software and content. You will not copy, reproduce, alter, create derivative works from, or otherwise modify the Services, including any and all technology, software and content. You will not lease, loan, sublicense, distribute, or otherwise provide others access to or with any aspect of the Services. Other than as expressly set forth in this Agreement, no license or other rights in or to the Services are granted to you, and all such licenses and rights are hereby expressly reserved.
The Service has been designed by Nutrimedy with the purpose of assisting people achieve their health goals through healthy lifestyle choices and behavior. We encourage you to consult with your healthcare provider before commencing the Services. You represent that you are in good enough health to begin these Services, which may include changes to your diet or level of physical activity, among other things. If you have been diagnosed with a chronic disease or other health condition, you represent that you have obtained the express approval from a healthcare professional to receive the Services before beginning. The Service requires your active engagement and participation. You understand that, despite your efforts, individual users results will vary for a variety of reasons and Nutrimedy cannot guarantee that you will achieve your health goals.
ABOUT THE SERVICE
Dietitians: Nutrimedy facilitates your matching with a dietitian who will consult with you via video conference, or other online tools. We strive to maintain the client-dietitian relationship throughout your use of the Service but reserve the right to change your dietitian at any time. Our dietitians provide you with peer-to-peer support, encouragement and practical tips to help overcome barriers to meeting your health goals.
NOT MEDICAL ADVICE
Though Users may seek and access medical advice through the Services, the Services themselves, and all related content, do not consist of, nor provide, medical advice and are not a substitute for medical advice. Results, such as those based on calorie counts or projected weight loss, may vary. Always seek the advice of a licensed medical provider before undertaking any weight loss plan or altering your diet or exercise for any medical condition. Reliance on any information provided by or found on the Services is purely at your own risk. To the extent Users access medical advice through the Services, the dietitian is solely responsible for all advice, diagnosis, treatment, prescriptions or other exchanges that may occur between such dietitian and User. Nutrimedy is not liable for any action or inaction of such dietitian, regardless of whether a User accesses such dietitian through the Services.
IT IS IMPORTANT TO UNDERSTAND THAT THE SERVICES DO NOT INCLUDE THE PROVISION OF MEDICAL CARE BY THE COMPANY. NUTRIMEDY IS NOT A LICENSED MEDICAL CARE PROVIDER. YOU SHOULD NOT CHANGE YOUR TREATMENT OR CARE PLAN, MEDICATION OR THERAPY BASED ON INFORMATION YOU RECEIVED THROUGH THE SERVICES OR FROM ONE OF OUR DIETITIANS WITHOUT CONSULTATION WITH YOUR PHYSICIAN FIRST. CONSULTATION WITH OUR DIETITIANS IS SUPPLEMENTAL TO ANY TREATMENT OR CARE PROVIDED BY YOUR PHYSICIAN OR HEALTH CARE PROVIDER AND SHOULD NOT REPLACE REGULAR MEDICAL VISITS WITH YOUR HEALTHCARE PROVIDER. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PRACTITIONER REGARDING YOUR MEDICAL CONDITION OR THE USE (OR FREQUENCY) OF ANY MEDICATION OR MEDICAL DEVICE. INFORMATION PROVIDED BY OUR DIETITIANS IS OFFERED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT A RECOMMENDATION OR ENDORSEMENT OF ANY DRUG, DEVICE OR TREATMENT OR REPRESENTATION THAT A PARTICULAR DRUG, DEVICE OR TREATMENT IS SAFE, APPROPRIATE, OR EFFECTIVE FOR YOU. QUESTIONS REGARDING ANY DRUG, DEVICE OR TREATMENT SHOULD BE DIRECTED TO YOU HEALTHCARE PROVIDER. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ IN CONNECTION WITH OUR SERVICES. ALWAYS CONSULT WITH YOUR HEALTHCARE PROFESSIONAL IF YOU HAVE ANY QUESTIONS OR CONCERNS ABOUT YOUR HEALTH OR CONDITION OR EXPERIENCE ANY CHANGES IN YOUR CONDITION OR HEALTH STATUS. ALTHOUGH DIETITIANS THROUGH NUTRIMEDY ARE AVAILABLE TO PROVIDE DIETARY COACHING, THEY DO NOT PROVIDE EMERGENCY SERVICES. THE SERVICES DO NOT INCLUDE EMERGENCY, TIME SENSITIVE OR URGENT, REMOTE OR CRITICAL CARE SERVICES. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911 OR GO TO THE NEAREST OPEN EMERGENCY ROOM IMMEDIATELY.
If you want to access and use the Services, you must create an account (“Account”). It’s important that you provide Nutrimedy with accurate, complete and up-to-date information for your Account. If you do not, your account may be suspended or terminated. You agree that you will not disclose your Account password to anyone and you will notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them. We are committed to protecting the privacy of children and have no intention of collecting personal information from individuals under the age of 18. If you are under the age of 18, do not submit personal information to the Services without the consent of your parent or guardian. Children under the age of 13 are not permitted to use the Services without assistance from your parent or guardian.
ONLINE CONTENT DISCLAIMER
Term and Termination
The term of this Agreement will begin upon your successful registration for the Service and will continue indefinitely unless terminated by either party as permitted herein.
The Company may suspend or terminate your access to the Service if you (a) breach any term of this Agreement, or (b) engage in any conduct that the Company determines in its discretion may have an adverse effect on the Company or its reputation. Upon termination, you will no longer have access to the Service or the dietitians via the Service, mobile application or content provided through the Services. In addition to termination, Company reserves the right to pursue any and all remedies available to it.
Use Restrictions: Your permission to use the Services is conditioned upon the following. You agree that you will not, under any circumstances:
1. post any information that is abusive, threatening, harassing, obscene, defamatory, libelous
2. use the Services for any unlawful purpose or for the promotion of illegal activities
3. attempt to, or harass, abuse or harm another person or group
4. use another User’s Account without permission
5. provide false or inaccurate information when registering an Account
6. interfere or attempt to interfere with the proper functioning of the Services; or racially, sexually, religiously, or otherwise objectionable and offensive; activities
7. make any automated use of the Services, or take any action that we deem to impose or to potentially impose an unreasonable or disproportionately large load on our servers or network infrastructure; bypass any robot exclusion headers or other measures we take to restrict access to publish or link to malicious content intended to damage or disrupt another User’s the Services or use any software, technology, or device to scrape, spider, or crawl the Services or harvest or manipulate data; or browser or computer
Further, when transmitting and submitting any User Content (as defined below) while using the Services, you agree as follows:
1. You are solely responsible for your account and the activity that occurs while signed in to or while using your account
2. You will not post information that is malicious, false or inaccurate
3. You will not submit content that is copyrighted or subject to third party proprietary rights, including privacy, publicity, trade secret, etc., unless you are the owner of such rights or have the appropriate permission from their rightful owner to specifically submit such content
You understand and agree that any liability, loss or damage that occurs as a result of the use of any User Content that you make available or access through your use of the Services is solely your responsibility. The Company is not responsible for any public display or misuse of your User Content. The Company does not, and cannot, pre-screen or monitor all User Content. However, at our discretion, we, or technology we employ, may monitor and/or record your interactions with the Services.
Fees. Services fees for individual video sessions will be paid in accordance with set US dollar rates and Canadian dollar rates and upon appointment confirmation from the dietitian. Service fees for Nutrimedy programs or platform only use must be paid in full prior to starting a Nutrimedy program or prior to each 30 day cycle. We provide no guarantee that your dietitian visits will be reimbursed by your insurance carrier. There is a 12 hour cancellation policy which dictates that no refunds of any kind will be granted to a User if a visit is cancelled with notice less than 12 hours prior to the visit start time. If a User arrives late to a visit, the dietitian is under no obligation to extend a visit beyond the initially scheduled visit end time or to reschedule the visit. Under these terms of service, a dietitian is not obligated to provide any ongoing communication to a User after 14 days from the date of the last paid video conferencing visit. You acknowledge that access to the Service may be suspended after 30 days from the last paid video conferencing visit. All Service Fees are exclusive of any tax, levy, or similar governmental charge that may be assessed. You are solely responsible for all taxes based upon the provision, sale or use of the Services, excluding any taxes based on the Company’s net income.
You will provide Company with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of these Terms, which may result in immediate termination of your Company account. You shall not use a false nature, e-mail address, phone number, address, or otherwise enter information with the intent to impersonate another person.
Content: The information presented on or through the Service is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. This Service may provide information about health and wellness and certain health conditions. However, nothing on this Service should be construed as providing any kind of medical advice or recommendation, and should not be relied on as the basis for any clinical decision or action. Patients should not use the information contained on the Service for diagnosing a health problem or disease. Medical advice should always be sought from a qualified medical practitioner. We disclaim all liability and responsibility arising from any reliance placed on such materials by you.
User Content and License Grant: You understand and acknowledge that you are solely responsible for all information, data, text or other materials or content that you post, transmit privately or make public via the Services (“User Content”) and that Nutrimedy is not responsible or liable for this information. When you post, transmit or make information public through the Services, you grant Nutrimedy a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, if applicable, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Services. You agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. The Company, however, reserves the right to remove any User Content from the Services at its discretion.
Service Access and Changes: We reserve the right to withdraw or amend this Service or materials we provide in connection with the Service, in our sole discretion. We will not be liable if for any reason all or any part of the Service is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Service, or the entire Service to users. We also may update the content on this Service from time to time, and we make reasonable efforts to maintain current information. However, we cannot guarantee that the content is complete or up-to-date.
Intended for Users Over 13: The Service is not for use by individual under the age of 13. We will not knowingly collect information or provide Services to anyone under the age of 13.
Indemnity: You agree to defend, indemnify, and hold the Company, its officers, directors, partners, employees, contractors, agents, licensors, and suppliers, harmless from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from, your use of the Service.
Copyright Complaints and Copyright Agent
(a) Termination of Repeat Infringer Accounts. The Company respects the intellectual property rights of others and requests that the Users do the same. Pursuant to 17 U.S.C. 512(i) of the United States Copyright Act and the Bill C-11 (Copyright Modernization Act) of the Canadian Copyright Act, the Company has adopted and implemented a policy that provides for the termination in appropriate circumstances of Users of the Services who are repeat infringers. The Company may terminate access for participants or users who are found repeatedly to provide or post protected third party content without necessary rights and permissions.
(b) DMCA Take-Down Notices. If you are a copyright owner or an agent thereof and believe, in good faith, that any materials provided on the Services infringe upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (see 17 U.S.C. 512) (“DMCA”) and the Copyright Modernization Act (see Bill C-11) by sending the following information via electronic mail to the Company’s designated copyright agent at: firstname.lastname@example.org:
1.The date of your notification;
2.A physical or electronic signature of a person authorized to act on behalf of the
3.A description of the copyrighted work claimed to have been infringed, or, if owner of an exclusive right that is allegedly infringed; multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
4.A description of the material that is claimed to be infringing or to be the subject of
5. Information reasonably sufficient to permit the service provider to contact you, infringing activity and information sufficient to enable us to locate such work; such as an address, telephone number, and/or email address;
6. A statement that you have a good faith belief that use of the material in the
7. A statement that the information in the notification is accurate, and under penalty manner complained of is not authorized by the copyright owner, its agent, or the law; and of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(c) Counter-Notices. If you believe that your User Content that has been removed from the Services is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your User Content, you may send a counter-notice containing the following information to our copyright agent using the contact information set forth above:
1. Your physical or electronic signature;
2. A description of the content that has been removed and the location at which the content appeared before it was removed;
3. A statement that you have a good faith belief that the content was removed as a
4. Your name, address, telephone number, and email address, a statement that you result of a mistake or a misidentification of the content; and consent to the jurisdiction of the federal court in Delaware and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Company copyright agent, the Company may send a copy of the counter-notice to the original complaining party informing such person that it may reinstate the removed content in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or User, the removed content may (in the Company’s discretion) be reinstated to the Services in ten (10) to fourteen (14) business days or more after receipt of the counter-notice.
DISCLAIMER: NUTRIMEDY IS NOT A MEDICAL ORGANIZATION. YOU SHOULD NOT CONSIDER THE SERVICE OR THE DOCUMENTATION AS MEDICAL ADVICE OF ANY KIND, AND THE SERVICE IS NOT INTENDED TO TREAT ANY ILLNESS, DISEASE, OR ADVERSE MEDICAL CONDITION OR MANAGE A CHRONIC DISEASE OR CONDITION. By using the Service, you expressly agree that use of the Service is at your sole risk. The Service is provided on an “AS IS” and “as available” basis. NEITHER The Company nor its officers, directors, managers, members, employees, agents, third-party content providers, designers, contractors, distributors, merchants, sponsors, licensors or the like (collectively, “Affiliates”) warrant that use of the Service will be uninterrupted or error-free. Neither The Company nor its Affiliates warrant the accuracy, integrity or completeness of the content provided on the Service or the products or services offered for sale on the Service. Further, The Company makes no representation that content provided on the Service is applicable to, or appropriate for use in, locations outside of the United States. The Company and its Affiliates specifically disclaim all warranties, whether expressed or implied, including but not limited to warranties of title, merchantability or fitness for a particular purpose. No oral advice or written information given by The Company or its Affiliates will create a warranty. Some states do not allow the exclusion or limitation of certain warranties, so the above limitation or exclusion may not apply to you.
Void Where Prohibited: The Service is intended for users in the United States and Canada. The Service is not available to all persons or in all geographic locations. Any offer for any feature, product or service made on the Service is void where prohibited.
Governing Law: You agree that all matters relating to your access to or use of the Service, including all disputes, will be governed by the laws of the United States and by the laws of the State of Delaware without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in Delaware, and waive any objection to such jurisdiction or venue.
WAIVER OF TRIAL BY JURY: EXCEPT WHERE PROHIBITED BY LAW, YOU EXPRESSLY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR THE SERVICE.
1. Acceptance of the Terms and Conditions of Use
A. By using the Nutrimedy, Inc ("Nutrimedy", "we", "us" or "our") platform, you agree to be bound by these terms and conditions of use ("Terms" or "agreement"). Nutrimedy provides the Nutrimedy Services to you, the Client, conditioned upon your acceptance, without alteration, of the Terms contained herein. Before using the Nutrimedy Services, please read these Terms carefully. Your use of the Nutrimedy Services constitutes your agreement with such Terms.
B. You acknowledge and represent that you have the authority to agree to these Terms, registering for the Nutrimedy Services, on behalf of yourself if you are an individual client, and on behalf of the legal entity (for example a company, or partnership) on whose behalf you are signing, if you are not signing as an individual client.
C. "Client", "you" and "your" means the individual or other legal entity registered for the Nutrimedy Services. "Nutrimedy Services" means the services and software that Nutrimedy provides, including, but not limited to, the Nutrimedy platform, and any of the other services or products provided in connection with the foregoing.
E. This agreement governs the provision of services to you under any applicable service order or active account agreement.
2. Use of Data; Active Account
A. License to Nutrimedy. By your submission of Client Data to Nutrimedy, you hereby grant to Nutrimedy, subject to all of the terms and conditions set forth in these Terms and applicable law, a non-exclusive, non-transferable, limited license to access, use, copy, and store the Client Data solely to the extent necessary for Nutrimedy to perform the Nutrimedy Services. You covenant, represent and warrant that you have any and all necessary rights and permissions to the extent required for Nutrimedy' access to and use of any Client Data, including the permission of your customers with regard to their Personal Information and Personal Health Information, as defined in HIPAA and PIPEDA. The first sentence of this section shall survive the termination, expiration, non-renewal or rescission of the Nutrimedy Services.
B. You grant us the right to use any Client Data for research or product development, provided that such Client Data is de-identified and anonymized.
3. Payment, Renewal and Cancellation
A. Term and Price. By creating an active provider account “Active Account Period” to use the Nutrimedy solution for the Services, you acknowledge that Nutrimedy accepts a predetermined percentage of all transactions and programs on our platform and that you are opting into a fixed pricing model (ie, you will receive a fixed-rate payment for each client session) which is subject to change with reasonable notice, usually 30 days. You may deactivate your account at any time by emailing email@example.com, free of charge.
Your “Active Account Period” will start upon acceptance of this agreement, and you are not charged for having an active account on the Nutrimedy platform. Any transactions will require a predetermined percentage to be provided to Nutrimedy.
B. Taxes. Your fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, accessible by any jurisdiction whatsoever (collectively, "Taxes"). Unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority, you are responsible under this s.3B, for all taxes (except we are solely responsible for taxes assessable against us based on our income, property and employees). Unless otherwise required by law, we provide no tax filing documents other than the invoice/confirmation of payment. We are not required, and currently therefore do not provide other forms, including IRS form 1099 or a CRA form T4A.
C. Price Changes. The “Active Account Period” transaction payments and/or fees are subject to change.In the event of such changes, you will receive a 30-day notification in advance of the change. In the event that you are currently engaged in a service or program package term that will only expire after the 30 day notice period, your pricing will remain unchanged for the remainder of that specific service or program package, and any increase will only begin after the notice period.
D. Usage Restrictions. The Nutrimedy Services are available only through your “Active Account”. If you are a legal entity and have several users on your staff, each individual is required to agree to these terms and conditions to use our service. Each “Active Account” terms shall apply to an individual user, and it is expressly prohibited that any “Active Accounts ”be shared. If you add any “Active Accounts” during the term of any agreement the added accounts will terminate on the same date as the underlying “Active Account”. Any one individual user's “Active Account” may not be reassigned to another user.
E. Access. The Nutrimedy Services which you agree to, and any data processed, stored or transmitted by you to, from or through the Nutrimedy Services may be subject to usage limits including those set out in the applicable Order. You agree that you will use commercially reasonable efforts to prevent unauthorized access to or use of Nutrimedy Services and content, and notify Nutrimedy promptly of any such unauthorized access or use, (d) use Nutrimedy Services and content only in accordance with this agreement, Orders and applicable laws and government regulations.
F. Nutrimedy Standards of Practice. Under this agreement, you acknowledge that you will abide by Nutrimedy’s community standards of practice agreements. Specifically, you will put forward a good-faith effort to devote time necessary to meeting the needs of your clients, including but not limited to: a) responding to patient messages within 24 hours, b) exhibiting punctuality with appointments, c) maintaining a professional relationship with your clients and with the Nutrimedy support staff and associated vendors. We reserve the right to terminate or cancel your access to the Nutrimedy platform at any point when in violation of these standards. See below, "Suspension or Termination by Nutrimedy."
4. Security and Privacy
(a) We may use any, all or none of encryption, protocol security (such as Transport Layer Security (TLS) / Secure Sockets Layer (SSL), redundant suppliers, and backups, to help protect the information you transmit, and help ensure the Nutrimedy Services remain up and running, or that your information is protected if the system goes down.
(b) You are responsible for the security of data on your site or otherwise in your possession. You agree to comply with all applicable state and federal laws, rules and regulations in connection with your collection, security, and dissemination of any PHI on your site. You shall at all times be compliant with HIPAA/PIPEDA and HITECH requirements, as applicable.
Nutrimedy is responsible for its actions in relation to the security of data under its possession. Nutrimedy agrees to comply with all applicable state and federal laws, rules and regulations when handling PHI within its possession. Nutrimedy agrees to be compliant with HIPAA/PIPEDA and HITECH requirements, as applicable to the functions we have set out above as being HIPAA compliant.
Nutrimedy Services are comprised of infrastructure-oriented resources and features currently provided by Health Care Blocks and Amazon Web Services. The service level agreement for the availability and uptime of the Amazon Web Services resources is subject to the terms published by Amazon Web Services on the Amazon Web Services public Website. Nutrimedy is not liable for any loss of data, or if the Nutrimedy Services are unavailable for any period, to the extent caused by Amazon Web Services or Health Care Blocks. You acknowledge that the suppliers and technologies used by Nutrimedy may change during the course of any Active Account Term including any renewal thereof.
While the data you provide is backed up on our dedicated servers, we cannot guarantee against data loss in the case of multiple server malfunctions.
By using the Nutrimedy Services, you agree that Nutrimedy may collect and utilize performance data, usage data and other technical information gathered as part of your use of the Nutrimedy Services in order to better serve our customers, facilitate problem troubleshooting and improve and enhance our software and our services offerings. Such information will not be disclosed in a form that specifically identifies you or any other person. Usage data may also be used in aggregate to establish usage trends across multiple customers for marketing purposes. Such data will be collected and used consistently with the restrictions of the applicable Business Associate Agreement (if any), and any identifiers will be removed from the usage data. You hereby consent to the collection and use of such information and data as described herein.
You and we each acknowledge that certain portions of the Administrative Simplification section of the Health Insurance Portability and Accountability Act of 1996, HIPAA, as codified at 42 U.S.C. §1320d through d-8 and the federal privacy regulations as contained in 45 CFR Part 164 ("Federal Privacy Regulations") may apply to Nutrimedy, you, and our relationships and operation under this Agreement. You agree that Nutrimedy does not anticipate receiving or disclosing any individually identifiable information in the normal course of providing services.
Should Protected Health Information ("PHI") be made available, or obtained by Nutrimedy, we will: (i) comply with the rules and regulations concerning the privacy and security of PHI under HIPAA/PIPEDA; (ii) require the utilization of the Business Associate Agreement, if confidential information will be further disclosed; (iii) not use or disclose any PHI except in the course of meeting our contractual obligations or as required by law and will ensure our agents or subcontractors agree to the same restrictions; (iv) protect against any non-permitted use or disclosure of PHI using no less than a reasonable amount of care; (v) report any non-compliance of which we become aware; (vi) at your request and direction, if feasible, make available PHI in accordance within the requirements of HIPAA/PIPEDA; (vii) upon reasonable notice and during normal business hours, allow the Secretary of the U.S. Department of Health and Human Services the right to audit our records and practices related to the use and disclosure of PHI to ensure compliance; (viii) upon termination of contract or upon request, if feasible, return or destroy all PHI received or created as a result of any contract and retain no copies; (ix) have named a HIPAA Security Official who creates, maintains, and trains regarding our HIPAA policies and procedures; (x) have established that all employees with access to PHI receive training on our policies and procedures according to HIPAA mandates.
5. Intellectual Property Rights and Use Guidelines
The Nutrimedy Services are licensed, not sold, solely for use by Client and its affiliated users under the Terms. Except as specifically set forth herein, Nutrimedy retains all right, title, and interest, including all intellectual property and moral rights, relating to or embodied in the Nutrimedy Services, including without limitation all technology, hardware, software, systems and copies of the foregoing relating to the Nutrimedy Services.The logos, service marks, and trademarks (collectively, "Trademarks") displayed on Nutrimedy' website and elsewhere in the Nutrimedy Services, whether or not registered, belong to Nutrimedy. Neither these Terms nor any Nutrimedy website grants a license to any Trademark, by implication, by estoppel or otherwise.
Without limiting the generality of the foregoing, you shall not create derivative works based upon, reproduce, reverse engineer, export, decompile or disassemble any Nutrimedy software or any part of the Nutrimedy Services.
With respect to any work product, materials or other receivables delivered to you by Nutrimedy as part of the Nutrimedy Services, including, but not limited to, all, know-how, formulas, designs, discoveries, trade secrets, proprietary information or tools, inventions or computer programs provided or created in connection with the Nutrimedy Services, your sole rights, upon full payment, will be a non-transferable, non-exclusive, royalty-free license to use such materials solely for your internal use. You shall have no right to such materials or their underlying intellectual property for any use contrary to those uses stated herein. You further acknowledge that your use will be subject to the rights of any third parties in any intellectual property pertaining to the material.
A. For various reasons, (including without limitation, to add functionality, improve performance, cure defects, comply with legal requirements, comply with intellectual property obligations) we may offer automatic or manual updates at any time and without notice to you. These Terms shall apply to, all updates, supplements, add-on components, features, or other functionality or messages related thereto, including without limitation alterations of functionality, features, storage, security, availability, content, and other information relating to the Nutrimedy Services (collectively, "Updates") that Nutrimedy may provide or make available generally to its clients after the date that the Nutrimedy Services commence, subject to any additional terms and conditions provided by Nutrimedy applicable to such Updates. You hereby authorize Nutrimedy to, in accordance with its standard operating procedures, automatically and in good faith transmit, install, and otherwise provide Updates to the Nutrimedy Services upon your access to the Nutrimedy Services without further notice or consent. Your failure to manually update promptly upon request by Nutrimedy is a default by you under this agreement.
B. Logging in to the Nutrimedy Service evidences that you have accepted all new restrictions on your use of the Nutrimedy Service. If you choose not to accept any new restriction on your use of any part of the Nutrimedy Service, this agreement shall be immediately terminated and you shall no longer be authorized to access or otherwise use any of the Nutrimedy Service in any manner or for any purpose whatsoever.
7. Use of Third Party Services
8. Disclaimers of Warranties
We do not represent or warrant that any content on or accessed through the Nutrimedy Services is without errors.
Nutrimedy makes no express or implied warranties, including, without limitation, warranties of title, merchantability or fitness for a particular purpose. Nutrimedy does not warrant that your use of the Nutrimedy Services will meet your requirements or be uninterrupted, timely, error-free, accurate, or free from viruses or other harmful components.
No communication between you and Nutrimedy will create a warranty or in any way alter or restrict any disclaimer of warranty by Nutrimedy or limitation of liability in favor of Nutrimedy set forth in this Section 8 or elsewhere in these Terms. As used in the previous sentence, "communications" include, without limitation, marketing materials and representations of Nutrimedy employees or agents, advice provided by Nutrimedy or any of its representatives, quotes and any work order or other ordering document.
In the sign up process, and thereafter in the information you present using the Nutrimedy Services to third parties, or in exchanges of information with Nutrimedy, you will be asked to provide, or will volunteer, certain information regarding your identity, skills, licensing and other similar matters (collectively "disclosure"). You warrant and represent:
A. that in your disclosure:
i. you are who you identify yourself to be
ii. that you have accurately represented the states (jurisdictions) in which you are licensed to practice
iii. you have the degrees and other certifications you say you have
iv. your professional liability insurance policy is active, and meets at least the minimum standards of each jurisdiction in which you are licensed to practice, and
v. that you have expertise in the specialties, cuisine interests, and languages you say you have.
B. that you will notify us:
vi. if your professional liability policy becomes inactive, is reduced, or if you change carriers; and
vii. if any other elements of your disclosure change in a material manner, including, without limitation, the jurisdictions in which you are entitled to practice.
C. that you will not claim or guarantee results if you are unable to document those results. (Principle 6 of the Code of Ethics states, “the dietetics practitioner does not engage in false or misleading practices or communications." (Academy of Nutrition and Dietetics Code of Ethics-Scope of Practice, http://www.eatrightpro.org/resources/career/code-of-ethics )).(Code of Ethics for the Dietetic Profession in Canada states "to maintain integrity and empathy in my professional practice" (Dietitians of Canada - Code of Ethics for the Dietetic Profession in Canada, http://www.dietitians.ca/Downloads/Public/code_of_ethics.aspx)).
D. that during the entire term of your use of the Nutrimedy Services, you will abide by best practices as outlined by the Academy of Nutrition and Dietetic.
9. Limitations of Liability
Neither party, nor its affiliates and subsidiaries shall be liable for any incidental, indirect, punitive, special, consequential or exemplary damages which may be incurred in connection with these terms, however caused and under any theory of liability. This shall include, but not be limited to, any loss of profit (whether incurred directly or indirectly), any loss of business reputation or goodwill, any loss or cost of procurement of substitute goods or services or other intangible loss. The foregoing limitations and exclusions shall not apply to either party's: (a) breach of confidentiality; (b) indemnification obligations; or (c) gross negligence, fraud or willful misconduct. You also acknowledge and agree that Nutrimedy has entered into these Terms relying on the limitations of liability stated herein and that these limitations are an essential basis of the bargain between You and Nutrimedy.
Unless a result of gross negligence or willful misconduct, the liability of Nutrimedy to the Client for any type of damages is limited to the amount of the Client's transactions fees received by Nutrimedy during the most recent 12-month period.
You will indemnify, defend and hold Nutrimedy (including its directors, officers, owners, employees, agents and affiliates) harmless from and against any and all liability and costs, including attorneys' fees, incurred in connection with any claim or damages arising out of, alleging, or related to: (a) your breach of these Terms or violation of applicable law; or (b) your infringement of any intellectual property or privacy rights of, or injury to, any person or entity (including, without limitation, defamation). Nutrimedy will indemnify, defend and hold you (including your directors, officers, owners, employees, agents and affiliates) harmless from and against any and all liability and costs, including attorneys' fees, incurred in connection with any claim or damages arising out of, alleging, or related to: (a) Nutrimedy' breach of these Terms or violation of applicable law; or (b) Nutrimedy' infringement of any intellectual property or privacy rights of, or injury to, any person or entity (including, without limitation, defamation). Each party's parties' obligations, as an indemnifier, set forth in this Section 10 include, without limitation, payment of attorney's' fees and other costs of litigation and payment of judgments and settlements of the indemnitee. The obligation to indemnify is conditional upon the indemnifier receiving prompt written notice of the claim, and the indemnitee tendering to the indemnifier the right to conduct the defense and settle the claim (so long as the settlement does not admit the liability of, or require payment by, the indemnitee). The indemnitee agrees to cooperate with the indemnifier. Failure to provide notice will not bar the obligation to indemnify, unless the failure has been so prolonged as to have materially prejudiced the indemnifier.
11. Suspension and Termination by Nutrimedy
A. Term. This Agreement is effective as of the date that you execute this agreement below by signing or evidencing your acceptance in a click through (the “Effective Date”). The Term of this Agreement starts on the Effective Date and continues until the earlier of: a) being terminated by one or more of the parties or b) all active account terms or Service Terms hereunder have expired or been terminated as set out below.
B. Suspend or Terminate. Nutrimedy may suspend the Nutrimedy Service or terminate this agreement upon your breach of this agreement. Failure to pay undisputed fees when due is a material breach. Such termination or denial will not relieve you of responsibility for the payment of all undisputed accrued charges, or other damages you may cause.
We reserve the right at any time to modify or cease, temporarily or permanently, the Nutrimedy Services (or any portion thereof) for any reason upon 30-days' written notice. Nutrimedy shall not be liable to you or any third party for any such modification, suspension or discontinuance except as expressly provided herein. If you have activated your account for a term that would only expire after the 30 day notice period, and the suspension or termination is not in response to your default, Nutrimedy, at its option may continue to provide you the Nutrimedy Services until your Active Account Period expires, or refund you the portion of any fees you have pre-paid, pro rata, for the period after the 30 notice, and until your Active Account Period expires.
C. Suspension Protocol. Nutrimedy may suspend Nutrimedy Services without liability if: (i) we reasonably believe that the Nutrimedy Services are being used in violation of this Agreement; (ii) you don't cooperate with our reasonable investigation of any suspected violation of the agreement; (iii) there is an event for which we reasonably believe that the suspension of Services is necessary to protect our network or our other customers; or (iv) if required by law. We will endeavor to give advance notice of a suspension under this Section of at least 12 business hours unless we determine in our reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect us or our other customers from imminent and significant operational or security risk.
D. Transition. Upon termination, the data will remain on the server for a reasonable time period. Nutrimedy will make it available to you for a mutually agreed upon administrative fee.
12. Governing Law and Jurisdiction
These Terms and any claim or dispute arising out of them are to be governed by the substantive laws of the State of Delaware (without regard to conflicts of law principles).
By using the Nutrimedy Services, you agree and consent to the jurisdiction of the state or federal courts located in Massachusetts and acknowledge that such courts shall constitute proper and convenient forums for the resolution of any actions between you and Nutrimedy with respect to the subject matter hereof. You further agree that, in such case, these courts shall be the sole and exclusive forums for the resolution of any actions between you and Nutrimedy with respect to the subject matter hereof. Both parties agree to waive any right to a jury trial.
Nutrimedy may at its option require that the dispute be resolved by arbitration. If Nutrimedy so elects, it shall notify you in writing, and then the parties will resolve any controversy or claim (other than a claim for an injunction or other mandatory or equitable relief), arising out of or relating to this agreement (a "Claim") by arbitration in accordance with the Rules for the Conduct of Arbitrations of the American Arbitration Association (the "Rules") in effect at the date of commencement of such arbitration, by one (1) arbitrator (the "Arbitrator"). The arbitrator shall be agreed upon by the parties within thirty (30) days, or if the parties cannot agree, appointed in accordance with the Rules and knowledgeable in the fields of health, privacy and information technology, as expeditiously as possible. If there are no Rules in effect at the date of the commencement of the arbitration, a Claim shall be settled by arbitration which shall proceed in accordance with the International Commercial Arbitrations Act, S.O. 1988 c.30 (the "Act") as amended from time to time. The language to be used in the arbitration shall be English. In the event of a conflict between the Rules or the Act on the one hand, and this s.12 on the other, this s.12 shall prevail.
The Claim shall be heard by the Arbitrator within 15 calendar days of his/her appointment, and the Arbitrator shall make his/her final decision within 15 calendar days of the completion of submissions, but in no event longer than 30 days after the Arbitrator's appointment.
Where a Claim is to be referred to arbitration pursuant hereto, the making of an award by the Arbitrator shall be a condition precedent to any right of action by either of the parties hereto, or their executors, administrators, representatives, or assigns against the other party or its executors, administrators, representatives or assigns, touching on any matters in a Claim unless the time limited for making the award by the arbitrator shall have expired without any such award being made.
The power or authority of the Arbitrator shall not be revoked or determined by any of the parties hereto, or by the death, bankruptcy, insolvency, legal incapacity or disability of any of them, but the Arbitrator shall notwithstanding any such event proceed with the business of the arbitration as if no such event had happened. The Arbitrator shall have the right to determine all questions of law and jurisdiction including questions as to whether a Claim is arbitrable (other than a claim for an injunction or other mandatory or equitable relief), and shall have the right to grant legal relief (but not equitable - including interim or permanent injunctive - relief), final and interim damages awards and shall have the discretion to award costs including reasonable legal fees and expenses, reasonable experts' fees and expenses, reasonable witnesses' fees and expenses, pre-award and post-award interest and costs of the arbitration.
The award of the Arbitrator regarding a Claim shall be final and binding on the parties hereto and their executors, administrators, representatives or assigns or trustee of the party or parties who died, became bankrupt or insolvent or subject to any legal capacity or disability. There is no right of appeal from the Arbitrator's award. The parties hereto shall be bound by any award or interim relief granted by the Arbitrator and the parties hereto consent to judgment upon the award or upon any interim relief granted by the Arbitrator being entered in any Court of competent jurisdiction. During the Term, each party shall continue to perform its obligations, pending the outcome of the mediation or arbitration.
A violation of any intellectual property usage or confidentiality, provisions of this Agreement will result in immediate and irreparable damage to the other party which shall then, in addition to any other rights to relief, be entitled to temporary and permanent injunctions and such other relief as any court of competent jurisdiction may deem just and proper, without posting of any security or proof of actual damage.
13. Waiver and Assignment
No delay, failure, or waiver of your or our exercise or partial exercise of any right or remedy under these Terms will operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy.
These Terms shall be binding upon and inure to the benefit of you and us, our legal representatives and permitted successors and assigns; provided, however, that neither party shall assign or transfer, either by operation of law or otherwise, these Terms or any of its rights or obligations hereunder.
If any provision in these Terms is held to be illegal, invalid or unenforceable, the provision will be enforced to the maximum extent permissible so as to affect the intent of you and Nutrimedy, and the remaining provisions of these Terms, as applicable, will remain in full force and effect.
A. Definition. "Confidential Information" means any aspect of the NL Service, or any related technology, ideas, algorithms, data or other information, as well as any information that relates to the actual or anticipated business or research and development of Nutrimedy, technical data, trade secrets or know-how, including, but not limited to, research, product plans or other information regarding Nutrimedy's products or services and markets therefor, customer lists and customers (including, but not limited to, customers of Nutrimedy with whom you became acquainted during the term of this agreement), software, developments, inventions, processes, formulas, technology, designs, drawing, engineering, hardware configuration information, marketing, finances or other business information, including any such information disclosed to you in writing, orally, or through an inspection of premises, parts, equipment, software, or other Nutrimedy property. Confidential Information shall further include all information regarding the Services, (not purposefully disclosed by Nutrimedy). Confidential Information does not include information that (i) is known to you, without confidentiality obligations, at the time of disclosure to you by Nutrimedy as evidenced by your or our written records, (ii) has become publicly known and made generally available through no wrongful act of yours or (iii) has been rightfully received by you, without confidentiality obligations, from a third party who is authorized to make such disclosure.
B. Non-use and Nondisclosure. You will not, during or subsequent to the term of this agreement, (i) use the Confidential Information for any purpose whatsoever other than authorized use the Nutrimedy Services or (ii) disclose or make available the Confidential Information to any third party. Notwithstanding the foregoing, if you are required by law to disclose Confidential Information, you may disclose such information to the extent required by law; provided, however, that you give Nutrimedy prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure. You agree that all Confidential Information will remain the sole property of Nutrimedy. You also agree to take all reasonable precautions to prevent any unauthorized disclosure of such Confidential Information.
C. Remedies. You expressly acknowledge and agree that there is no adequate remedy at law for a breach of this Section, that such a breach would irreparably harm Nutrimedy and that we are entitled, without limiting any of our other remedies at law or equity, to obtain injunctive relief (temporary and permanent) from any court of competent jurisdiction immediately upon request and without the need to post a bond or security, with respect to any such breach or potential breach in addition to any other remedies.
D. Publicity and Non-Disparagement. During the term of this agreement, either party may issue press releases or create and issue marketing materials in furtherance of the party's business regarding the relationship between the parties under this Agreement, subject to the other party's timely prior written consent. Such consent will not be unreasonably delayed or withheld. Neither party shall disparage the other, during the term of this agreement or for two years thereafter.
16. Conflict Disclosure
If you recommend third party products or services, you agree to clearly and conspicuously disclose to your customers, any interest you have in the third party (such as a shareholding interest), or any benefit you receive from the third party (such as a commission, brokerage or referral fee, or a fee for making the recommendation). The disclosure shall be evident to a typical visitor to your site, prior to or as part of your recommendation.
17. Your Cancellation Policy with regards to End Users
You acknowledge that our Terms of Service for your end user customers ("Users") include the following, and agree to be bound by same:
"Services fees” will be paid in accordance with your client visit appointment confirmation.There is a 12 hour full-refund cancellation policy which dictates that no refunds of any kind will be granted to a User if a visit is cancelled by User without at least 12 hours notice prior to the visit start time. If a User arrives late to a visit, the dietitian may, but is under no obligation to, extend a visit beyond the initially scheduled visit end time. If the dietitian does not show up, for a visit for which User has paid, User shall receive a full refund. If the dietitian is late to a visit, dietitian will either extend the visit to make a full session, or arrange with you to make up the remaining time at a mutually convenient date and time."
18. General Information
You shall provide us with, and keep up-to-date, your accurate contact information including, email, telephone number and address.
Nothing in these Terms, express or implied, is intended to or shall confer upon any third party any right, benefit or remedy of any nature whatsoever under or by reason of these Terms. In addition, these Terms do not create a joint venture, partnership or agency of any kind.
Nutrimedy is not liable for delaying or failing its performance to the extent the delay or failure was caused by the occurrences of a Force Majeure. For purposes of these Terms, "Force Majeure" shall mean any event including acts of God, fires, floods, explosions, riots, wars, hurricane, terrorism, vandalism, restraint of government, governmental acts, Internet disturbances, injunctions and labor strikes.
Nutrimedy may use a subcontractor or other third party to perform its obligations under this agreement so long as Nutrimedy remains responsible for all of its obligations under this agreement.
Headings in this agreement for reference only and shall not be considered when interpreting this agreement.
Unless otherwise specifically stated in writing, there are no third party beneficiaries to this agreement.
19. Contact Us
If you would like to update your personal information, delete your account, change your preferences or have any questions or concerns about the Dietitian Agreement, you may contact us at firstname.lastname@example.org. Please note that some information may remain in our records after deletion of your account, including any information or records we are legally obligated to retain.