MyFitnessPal Terms and Conditions of Use
<p>Effective Date: December 18, 2020</p>
<p>
<em>Welcome to MyFitnessPal.
These Terms and Conditions of Use apply and
govern your use of our website and mobile application (the “App”) and
are designed to create a positive, law-abiding community of our users.
By using MyFitnessPal, you are agreeing to all the terms and conditions
below.</em>
</p>
<p>MyFitnessPal, Inc.
and any successor entity (referred to throughout
as <strong>“MyFitnessPal,” “we”</strong> or <strong>“us”</strong>), offers a variety of content
and services through the MyFitnessPal website and App (collectively,
the <strong>“Services”</strong>).</p>
<p>THESE TERMS INCLUDE A BINDING ARBITRATION CLAUSE AND A CLASS ACTION
WAIVER IN SECTION 14.
THIS PROVISION AFFECTS YOUR RIGHTS TO RESOLVE
DISPUTES WITH MYFITNESSPAL AND YOU SHOULD REVIEW IT CAREFULLY.
YOUR
CHOICE TO MAINTAIN AN ACCOUNT, ACCESS OR USE THE SERVICES (REGARDLESS OF
WHETHER YOU CREATE AN ACCOUNT WITH US) CONSTITUTES YOUR AGREEMENT TO
THESE TERMS AND OUR PRIVACY
POLICY, WHICH IS
INCORPORATED INTO THE TERMS.
IF YOU DISAGREE WITH ANY PART OF THE TERMS,
THEN YOU ARE NOT PERMITTED TO USE OUR SERVICES.</p>
<p>Please note the summaries in shaded boxes at the top of most sections
are provided to make the Terms easier to understand.
In the event of a
conflict between any summary and any section of the Terms, the Terms
will control.</p>
<p>Please feel free to contact us through our Support
Team if you have any questions
or suggestions.</p>
1.
Use of the Services and Your Account
1.1 Who can use the Services
<p>You must be at least 18 years old to use the Services.</p>
<p>You must be at least 18 to use the Services (unless otherwise specified
in the International Terms section applicable to specific
jurisdictions).
No individual under the age of 18 may use the Services,
provide any Personal Data (as that term is defined in the Privacy
Policy) to us, or
otherwise submit Personal Data through the Services (e.g., a name,
address, telephone number, or email address).</p>
1.2 Your Account
<p>
<em>You may need to create a MyFitnessPal account to access the Services,
and it's important that you keep your account accurate and up-to-date
(particularly your email address - if you ever forget your password, a
working email address is often the only way for us to verify your
identity and help you log back in).</em>
</p>
<p>You may need to register for a MyFitnessPal account to access or use
certain Services.
Your account may also automatically provide you access
and means to use any new Services.</p>
<p>When you create an account for any of our Services, you must provide us
with accurate and complete information as prompted by the account
creation and registration process, and keep that information up to date.
Otherwise, some of our Services may not operate correctly, and we may
not be able to contact you with important notices.</p>
<p>You are responsible for maintaining the confidentiality of any and all
actions that take place while using your account, and must notify
our Support Team right away
of any actual or suspected loss, theft, or unauthorized use of your
account or account password.
We are not responsible for any loss that
results from unauthorized use of your username and password.</p>
<p>
<strong>If you are a resident of the European Union:</strong> You have the right to
delete your account with us by contacting our Support
Team.
If you choose to
permanently delete your account, the non-public Personal Data that we
have associated with your account will also be deleted.</p>
1.3 Service Updates, Changes and Limitations
<p>
<em>Our Services are constantly evolving.
With the launch of new products,
services, and features, we need the flexibility to make changes, impose
limits, and occasionally suspend or terminate certain Services.
We may
also update our Services, which might not work properly if you don't
install the updates.</em>
</p>
<p>The Services change frequently, and their form and functionality may
change without prior notice to you.</p>
<p>We may provide updates (including automatic updates) for certain
Services as and when we see fit.
This may include upgrades,
modifications, bug fixes, patches and other error corrections and/or new
features (collectively, <strong>“Updates”</strong>).
Certain portions of our Services
may not properly operate if you do not install all Updates.
You
acknowledge and agree that the Services may not work properly if you do
not allow such Updates and you expressly consent to automatic Updates.
Further, you agree that the Terms (and any additional modifications of
the same) will apply to any and all Updates to the Services.
We may
change, suspend, or discontinue any or all of the Services at any time,
including the availability of any product, feature, database, or
Content.
In addition, we have no obligation to provide any Updates or to
continue to provide or enable any particular features or functionality
of any Service.
We may also impose limits on certain Services or
restrict your access to part or all of the Services without notice or
liability.</p>
1.4 Service Monitoring and Suspension
<p>
<em>We reserve the right to refuse to provide the Services to anyone, and
can monitor, terminate or suspend your account or access to the Services
at any time.</em>
</p>
<p>We reserve the right, but have no obligation, to monitor any accounts
and/or activities conducted through or in any way related to the
Services (including inviting a fellow user into a community or group),
as well as any user’s use of or access to Personal Data, and profiles of
other users.</p>
<p>We may also deactivate, terminate or suspend your account or access to
certain Services at any time: (1) if we, in our sole discretion,
determine you are or have been in violation of these Terms or the spirit
thereof (as highlighted in our Community Guidelines), (2) if we, in our
sole discretion, determine you have created risk or possible legal
exposure for MyFitnessPal, the general public, any third party, or any
user of our Services, (3) in response to requests by law enforcement or
other government agencies, (4) upon discontinuation or material
modification of any Services, or (5) due to unexpected technical issues
or problems.
We will endeavor to notify you by email or the next time
you attempt to access your account after any such deactivation,
termination or suspension.</p>
1.5 Security
<p>
<em>Please let us know right away if you believe your account has been
hacked or compromised.</em>
</p>
<p>We care about the security of our users.
While we work hard to protect
the security of your Personal Data, User-Generated Content, and account,
we cannot guarantee that unauthorized third parties will not be able to
defeat our security measures.
Please notify our Support
Team immediately of any actual
or suspected breach or unauthorized access or use of your account.</p>
2.
Ownership and Use of Content
2.1 Definitions
<p>
<em>Content is what shows up in-app or on the website when you use our
Services.
User-Generated Content is any Content that is created by you
or other users, and MyFitnessPal Content is all other Content.</em>
</p>
<p>
<em>For purposes of these Terms, (i) <strong>“Content”</strong> means any form of
information, data or creative expression and includes, without
limitation, video, audio, photographs, images, illustrations,
animations, tools, text, ideas, communications, replies, “likes,”
comments, software, scripts, executable files, graphics, geo-data,
workouts and workout data, biometric data and data elements derived
therefrom, meal, or fitness training plans, annotations, nutrition
information, recipes, interactive features, designs, copyrights,
trademarks, service marks, branding, logos, and other similar assets,
patents, sounds, applications and any intellectual property therein, any
of which may be generated, provided, or otherwise made accessible on or
through the Services.
(ii) <strong>“User-Generated Content”</strong> means any
Content that a user submits, transfers, or otherwise provides to or
through the use of the Services.
and (iii) <strong>“MyFitnessPal
Content”</strong> means all Content that is not User-Generated Content.</em>
</p>
2.2 Ownership
<p>
<em>You own the Content that you create, and we own the Content that we
create.</em>
</p>
<p>All MyFitnessPal Content and all copyright, trademarks, design rights,
patents and other intellectual property rights (registered and
unregistered) in and on the Services belong to MyFitnessPal and/or its
partners or applicable third parties.
Each user retains ownership,
responsibility for, and/or other applicable rights in the User-Generated
Content that he/she creates, but grants a license of that User Generated
Content to MyFitnessPal as explained in Section 2.5 below.
MyFitnessPal
and/or its partners or third parties retain ownership, responsibility
for and/or other applicable rights in all MyFitnessPal Content.
Except
as expressly provided in the Terms, nothing grants you a right or
license to use any MyFitnessPal Content, including any content owned or
controlled by any of our partners or other third parties.
You agree not
to duplicate, publish, display, distribute, modify, or create derivative
works from the material presented through the Services unless
specifically authorized in writing by us.</p>
2.3 Our License to You
<p>
<em>You are welcome to access and use the MyFitnessPal Content and
Services.
We work hard to provide a great experience for our users, so
please respect our intellectual property rights and only use the
MyFitnessPal Content and Services as intended.
This includes not using
any MyFitnessPal Content or Services for commercial purposes without our
permission.
We do have APIs and other tools you can use to help create
your own apps and products. Contact us to find out more.</em>
</p>
<p>Subject to your compliance with these Terms, we grant you a limited,
revocable, personal, non-transferable, and non-exclusive right and
license to access and use the Services and MyFitnessPal Content for your
own personal, noncommercial purposes, provided that you do not (and do
not allow any third party to) copy, modify, create a derivative work
from, reverse engineer, sell, assign, sublicense, grant a security
interest in, transfer or otherwise commercially exploit any right in the
MyFitnessPal Content or Services.</p>
2.4 Acceptable Usage Guidelines
<ul>
<li>
<p>
<strong>2.4.1 MyFitnessPal Content.</strong> Except as expressly permitted by
applicable law or authorized by MyFitnessPal, you agree not to
modify, rent, lease, loan, sell, distribute, or create derivative
works based on the Services, the Services’ software, or any
MyFitnessPal Content offered as part of the Services (other than
User-Generated Content), in whole or in part.
You shall not
download, copy, or save MyFitnessPal Content, except (i) as
expressly permitted by the functionality of certain Services as
provided for in the specific guidelines and/or additional terms
applicable to those Services, or (ii) solely for personal use or
your records.</p>
</li>
<li>
<p>
<strong>2.4.2 Commercial Usage of the Services.</strong> The Services, with the
exception of certain products and services provided though
MyFitnessPal branded websites we make available as tools for website
owners (collectively, the <strong>“Commercial Tools”</strong>), are intended only
for your personal, non-commercial use.
You shall not use the
Services (other than certain Commercial Tools) to sell a product or
service, increase traffic to your own website or a third-party
website for commercial reasons (such as advertising sales), or
otherwise undertake any endeavor aimed at deriving revenue.
For
example, you shall not take the results from a search of the
Services and reformat and display them, or mirror our home pages or
results pages on your website.
Moreover, you shall not “meta-search”
our Services.
If you seek to make commercial use of the Services
other than through the Commercial Tools, you must enter into an
agreement with us to do so in advance.
To learn more about the
Commercial Tools, please contact us our Support
Team.
By using any of the
Commercial Tools, you acknowledge and agree to the Terms and any
additional terms and conditions applicable to those select Services.</p>
</li>
<li>
<p>
<strong>2.4.3 Linking to the Services.</strong> If you would like to link to our
Services on your website or App, please follow these rules: (i) any
link to the Services must be a text only link clearly marked
“MyFitnessPal” (without the use of any other trademark, logo
copyright or any other intellectual property asset owned or
controlled by MyFitnessPal) or in some other format directed by
us, (ii) the appearance, position and other aspects of the link may
not damage or dilute the goodwill associated with our marks, (iii)
the link must “point” to the root domain name of the Services and
not to other pages within the Services, (iv) the appearance,
position and other attributes of the link may not create the false
appearance that your organization or entity is sponsored by,
affiliated with, or associated with MyFitnessPal, (v) when selected,
the link must display the Service on full-screen and not within a
“frame” on the linking website or service, and (vi) we reserve the
right to revoke its consent to the link at any time and in its sole
discretion, and upon our notification to you of such revocation of
consent, you agree to promptly remove the relevant link.</p>
</li>
</ul>
2.5 Your License to Us
<p>
<em>When you post Content in connection with the Services, it belongs to
you - however, you're giving us permission to use that Content in
connection with our Services and make the Content available to others.
We can edit or remove your Content from our Services at any time for any
reason.
Don't post any Content that is not yours or that you do not have
permission to post.</em>
</p>
<p>When you provide User-Generated Content to MyFitnessPal through the
Services, you grant us and our users a non-exclusive, irrevocable,
royalty-free, freely transferable, sublicensable, worldwide right and
license to use, host, store, cache, reproduce, publish, display
(publicly or otherwise), perform (publicly or otherwise), distribute,
transmit, modify, adapt (including, without limitation, in order to
conform to the requirements of any networks, devices, services, or media
through which the Services are available), commercialize, create
derivative works of, and otherwise exploit such User-Generated Content
in connection with any and all Services.
You acknowledge and agree that:
(a) we have the right to arrange the posting of User-Generated Content
in any way we desire.
(b) we have no obligation to provide you with any
credit when using your User-Generated Content, but if we choose to
provide you with credit, the size and placement of the credit is at our
sole discretion.
and (c) you are not entitled to any compensation or
other payment from us in connection with the use of your User-Generated
Content.</p>
<p>The rights you grant in this license are for the limited purposes of
allowing MyFitnessPal to operate and allow other users to use the
Services in accordance with their functionality, improve the Services,
and develop new Services.
Notwithstanding the above, we will not make
use of any of your User-Generated Content in a manner that is
inconsistent with our Privacy
Policy.</p>
<p>We reserve the right to monitor, remove or modify User-Generated Content
for any reason and at any time, including User-Generated Content we
believe violates these Terms, the Community Guidelines, and/or our
policies.</p>
<p>You agree you will respect the intellectual property rights of others.
You represent and warrant you have all the necessary rights to grant
MyFitnessPal the foregoing license for all User-Generated Content you
submit in connection with the Services and will indemnify us for any
breach of this representation and warranty.</p>
2.6 Spreading the Word
<p>
<em>If you share someone else's Personal Data with us, you must first get
their permission.</em>
</p>
<p>We hope you enjoy using our Services and encourage you to share your
enthusiasm for them with your friends.
If you elect to use the features
in our Services to tell a friend about the Services, we will ask you to
provide your friend’s email address or social media profile, which we
may then use to contact your friend about the Services.
We may store the
information you provide for a period of time, but we will not post this
information publicly.
You represent and warrant that you are authorized
to provide any third-party contact information that you provide to us
for referrals and will indemnify us for any breach of this
representation and warranty.</p>
2.7 Content Retention
<p>
<em>Please keep in mind that when you make something publicly available on
the Internet, it becomes practically impossible to take down all copies
of it in the future.</em>
</p>
<p>Following termination of your account, or if you remove any
User-Generated Content from the Services, we may retain your
User-Generated Content for a commercially reasonable period of time for
backup, archival, or audit purposes, or as otherwise required or
permitted by law.
Further, MyFitnessPal and its users may retain and
continue to use, store, display, reproduce, share, modify, create
derivative works, perform, and distribute any of your User-Generated
Content that otherwise has been stored or shared through the Services.
The license to your User-Generated Content therefore continues even if
you stop using the Services.
When you post something publicly, others
may choose to comment on it, making your Content part of a social
conversation.
For more information, please review our Privacy
Policy.</p>
3.
Community Guidelines
3.1 Interactive Areas
<p>
<em>Our Services often contain community features.
When you post content
through these features that content may become public.
We may, but do
not always, monitor our community features, and ultimately you are
responsible for your interactions with other users.
Please use good
judgment and play fair.</em>
</p>
<p>Some of our Services may include reviews, discussion forums,
conversation pages, blogs or other interactive areas or social features
that allow you and other users to post User-Generated Content and
interact with one another (<strong>“Interactive Areas”</strong>).
You are solely
responsible for your use of the Interactive Areas and for any
User-Generated Content you post, including the transmission, accuracy
and completeness of the User-Generated Content.
As the Interactive Areas
are often public, you understand your User-Generated Content may be made
and remain public.
You should, accordingly, never post any Personal Data
in an Interactive Area.</p>
<p>We are entitled, but have no obligation, to monitor our community
features.
You are solely responsible for your interactions with other
users, whether online or in person, including but not limited to
comments, challenges, and friendly competition.
We assume no
responsibility or liability for any loss or damage resulting from any
interaction with other users who employ the Services, individuals you
meet through the Services, or individuals who find you because of
Content posted on, by or through the Services.
MyFitnessPal is under no
obligation to become involved in and disclaims all liability related to
any disputes between its users and you release MyFitnessPal from all
responsibility and liability arising out of or in connection with such
dispute.</p>
3.2 Community Guidelines
<p>
<em>Our Services are intended to be a safe and supportive environment to
help you reach your fitness and wellness goals.
You cannot use our
services to post inappropriate material, harass people, send spam,
violate intellectual property rights, or act inappropriately.
Be
reasonable and act responsibly.</em>
</p>
<p>Our Services are intended to create a safe and supportive community for
all users.
To maintain a safe and positive environment, we require
everyone to agree to and follow certain rules (the <strong>“Community
Guidelines”</strong>) when posting User-Generated Content and using the
Services.
Our Community Guidelines are based in many instances on
principles of applicable law.
Violations of our Community Guidelines may
expose you to criminal charges and civil liability.
By using the
Services you agree that your User-Generated Content and use of the
Services, including without limitation the Interactive Areas, will not
violate the Community Guidelines.
If you violate the Community
Guidelines, we reserve the right to terminate your access to the
Services.</p>
<ul>
<li>
<p>
<strong>No Inappropriate Content.</strong> Don’t post Content that is stalking,
threatening, hurtful, harassing, abusive, or embarrassing to other
members of the community.
No derogatory references to sex, gender,
age, weight, body type, disability, ethnicity, religion, or sexual
orientation, or endorsement of violence against any person or group,
even if couched in humor, will be permitted.
This includes
expressing stereotypes about any group or community.
Don’t post
Content that is defamatory, obscene, pornographic, offensive,
hateful, inflammatory, or that promotes sexually explicit material.
You can respectfully disagree with a message, post or topic, but
please do not attack other users by mocking or insulting them.
If
you are attacked by another user, and you reciprocate, you may also
be subject to the same consequences.</p>
</li>
<li>
<p>
<strong>No Hijacking, Trolling, or Flame-baiting</strong>.
If you are
participating in our forums, please stay on-topic in an existing
thread, and post new threads in the appropriate forum.
Taking a
thread off-topic is considered hijacking.
This includes posts that
provoke or are intended to incite uproar.</p>
</li>
<li>
<p>
<strong>No Promotion of Unsafe Weight-Loss Techniques or Eating
Disorders.</strong> Use of the Services to promote, glamorize, or achieve
dangerously low levels of eating is not permitted.
Accordingly,
please do not contribute the following types of Content, which may
be removed without warning:</p>
<ul>
<li>
<p>Content intended to promote potentially unsafe or controversial
weight loss products or procedures, including non-medically
prescribed supplements.</p>
</li>
<li>
<p>Profiles, groups, messages, posts, or wall comments that
encourage anorexia, bulimia, or very low calorie diets.
This
includes positive references to ana/mia, purging, or
self-starving.</p>
</li>
<li>
<p>Photos intended to glamorize extreme thinness.</p>
</li>
</ul>
</li>
<li>
<p>
<strong>No Harm to Minors.</strong> Don’t use the Services in a way that harms
minors (or anyone, really).</p>
</li>
<li>
<p>
<strong>No Disruptions, Exploits, or Resource Abuse.</strong> Do not interfere
with or damage operation of the Services, including through
unauthorized use, disruption, automated attacks, exploitation, or
abuse of our resources</p>
</li>
<li>
<p>
<strong>No Sending Spam and Junk Mail.</strong> Don’t spam people via posts,
replies, or messages.</p>
</li>
<li>
<p>
<strong>No Illegal Content.</strong> Don’t advocate, promote, or assist any
fraudulent or illegal act (e.g., violence, impersonation and
computer misuse).</p>
</li>
<li>
<p>
<strong>No Soliciting Personal Data.</strong> Please don’t post or solicit
Personal Data regarding or from any third party, including
photographs, telephone numbers, street addresses, last names, email
addresses and passwords in the Interactive Areas.</p>
</li>
<li>
<p>
<strong>No Public Posting of Private Conversations.</strong> Don’t publicly post
an email or private message from any other user, moderator or
administrator.</p>
</li>
<li>
<p>
<strong>No Breach of Legal Duty.</strong> Don’t post Content in breach of any
contractual or other legal duty owed to a third party.</p>
</li>
<li>
<p>
<strong>No Deceptive or Fraudulent Links.</strong> Don’t post deceptive or
fraudulent links.
This includes links with misleading descriptions,
putting the wrong “source” field in a post, setting misleading
click-through links on images, or embedding links to interstitial or
pop-up ads.</p>
</li>
<li>
<p>
<strong>No Intellectual Property Infringement.</strong> Respect the intellectual
property of others.
If you aren’t allowed to use someone else’s
proprietary work or likeness (either by license or by legal
exceptions and limitations such as fair use), please don’t post it.
In particular, if you have any reason to believe User-Generated
Content you see on our Services is infringing your intellectual
property or the intellectual property of others, please see the
Intellectual Property/DMCA section of our Terms.</p>
</li>
<li>
<p>
<strong>No Impersonating MyFitnessPal or Others.</strong> Don’t post Content that
is likely to deceive any person or be used to impersonate any
person, or to misrepresent your identity or affiliation with any
person, including with MyFitnessPal.
Creating an account for the
purposes of deceiving other users or to work around a suspension is
not permitted and will be grounds for a permanent ban from the
Services.</p>
</li>
<li>
<p>
<strong>No Automated Querying.</strong> Do not send automated queries of any sort
to the systems and networks we use to provide the Services without
our express written permission.</p>
</li>
<li>
<p>
<strong>Other.</strong> Don’t post any Content that contains anything that, we in
our sole determination, may determine is objectionable or inhibits
any other person from using or enjoying the Services, or that may
expose MyFitnessPal or our users to any harm or liability of any
kind.
Don’t post content that may damage or dilute the goodwill
associated with MyFitnessPal or our, logos and marks.</p>
</li>
</ul>
<p>If we determine you are violating the Community Guidelines or otherwise
have breached the Terms, we may take actions to address the issue,
including, but not limited to, terminating your right to use the
Services, removing your User-Generated Content, taking legal action
against you (in which case you agree that we may recover reasonable
costs and attorneys’ fees) or disclosing information to law enforcement
authorities.
We reserve the right to enforce, or not enforce, these
Community Guidelines in our sole discretion, and they don’t create a
duty or contractual obligation for us to act in any particular manner.</p>
3.3 Reporting Objectionable User-Generated Content
<p>
<em>People do post inappropriate content on user-generated content sites.
We do our best to keep the community safe and secure (users respecting
the Community Guidelines helps), but you still might run into bad
content before we have a chance to take it down.
If you spot anything
objectionable, please let us know.</em>
</p>
<p>While we require all of our users to comply with the Community
Guidelines and reserve the right to monitor for violations, we
ultimately cannot guarantee all users will comply with the Community
Guidelines or these Terms at all times.
If you believe any Content
submitted to our Services violates the Community Guidelines, or if you
know or suspect someone is misusing your User-Generated Content, please
report it to the Support
Team.
We have the right, but
not the obligation, to review and take action or remove any
User-Generated Content you report.
You understand and acknowledge that
when you access or otherwise use the Services, you may be exposed to
User-Generated Content from a variety of sources, and we are not
responsible for the accuracy, usefulness, safety, legality,
appropriateness, or intellectual property rights of or relating to such
User-Generated Content.</p>
<p>We are not responsible or liable for any injury or harm to you resulting
from objectionable User-Generated Content or another user’s failure to
comply with our Community Guidelines.</p>
4.
Intellectual Property/ DMCA
<p>
<em>We respect intellectual property laws.
If anything is wrong, please
send an email with all the details to legal@myfitnesspal.com.</em>
</p>
<p>If you believe User-Generated Content or MyFitnessPal Content infringes
copyright or trademark under U.S.
or other national law, please notify
us immediately using the contact information provided herein.
It is our
policy to investigate any allegations of infringement brought to our
attention.
Please provide us with the following information in your
notice of a suspected violation:</p>
<ul>
<li>
<p>Identification of the material being infringed.</p>
</li>
<li>
<p>Identification of the material that is claimed to be infringing,
including its location, with sufficient detail so that we are
capable of finding it and verifying its existence.</p>
</li>
<li>
<p>Contact information for the notifying party (the <strong>“Notifying
Party”</strong>), including name, address, telephone number, and email
address.</p>
</li>
<li>
<p>A statement that the Notifying Party has a good faith belief that
the material is not authorized by the owner, its agent or law.</p>
</li>
<li>
<p>A statement made under penalty of perjury that the information
provided in the notice is accurate and that the Notifying Party is
authorized to make the complaint on behalf of the owner.</p>
</li>
<li>
<p>A physical or electronic signature of a person authorized to act on
behalf of the owner of the material that has been allegedly
infringed.</p>
</li>
</ul>
<p>Your notice must be signed (physically or electronically) and must be
addressed as follows:</p>
<p>MyFitnessPal, Inc.<br>135 Townsend Street<br>San Francisco, CA 94107<br>Attn: DMCA Requests</p>
<p>You acknowledge that if you fail to comply with all of the requirements
of this section, your notice may not be valid.
Some information provided
in a notice of infringement may be forwarded to the user who posted the
allegedly infringing content.
In the U.S., under Section 512(f) of the
DMCA, any person who knowingly materially misrepresents that material or
activity is infringing may be subject to liability.
Please
see www.copyright.gov for more information
about how to prepare or respond to a DMCA notice
and/or www.uspto.gov/trademark for
more information about trademark rights.</p>
5.
Third Party Links and Services
<p>
<em>Our Services may link to, interact with or be available on third-party
services or products such as social media and third-party devices.
If
you access such third-party services or products, be aware that
different terms and privacy policies apply to your usage of such
services.</em>
</p>
5.1 Social Networking and Logins
<p>You may enable or log in to the Services via various online third-party
services, such as social media and social networking services like
Facebook (<strong>“Social Networking Services”</strong>).
To take advantage of these
features and capabilities, we may ask you to authenticate, register for,
or log into Social Networking Services on the websites of their
respective providers.
As part of this integration, the Social Networking
Services will provide us with access to certain information you have
provided to them, and we will use, store, and disclose such information
in accordance with our Privacy
Policy.
Please remember
the way Third Party Services (including Social Networking Services) use,
store, and disclose your information is governed solely by the policies
of those Third Party Services, and we have no liability or
responsibility for the privacy practices or other actions of any
third-party website or service that may be enabled within the Services.
In addition, we are not responsible for the accuracy, availability, or
reliability of any information, content, goods, data, opinions, advice,
or statements made available in connection with Social Networking
Services.
As such, we are not liable for any damage or loss caused or
alleged to be caused by or in connection with the use of or reliance on
any such Social Networking Services.</p>
5.2 Third-Party Applications
<p>You may be able to access certain third-party links, applications,
content, services, promotions, special offers, or other events or
activities (<strong>“Third-Party Applications”</strong>) via our Services.
If you
choose to access these Third-Party Applications, you may be requested to
log-in and sync your accounts with such applications.
You are in no way
obligated to use any Third-Party Applications, your access and use of
such applications is entirely at your own risk, and we have no
associated liability.
In addition, we are not responsible for the
accuracy, availability, or reliability of any information, content,
goods, data, opinions, advice, or statements made available by any
Third-Party Applications.
As such, we are not liable for any damage or
loss caused or alleged to be caused by or in connection with the use of
or reliance on any such Third-Party Applications.</p>
5.3 Third Party Products
<p>Our Services may be accessed on third-party devices or other products
(<strong>“Third Party Products”</strong>), and your ability to use certain features
of the Services may require you to purchase Third-Party Products (e.g.,
fitness trackers, smart scales, etc.).
While we may recommend, promote,
or market the products of certain partners, we have no responsibility
for your acquisition or use of any Third-Party Products, and we do not
guarantee that Third-Party Products will function with the Services or
will be error-free.
We hereby disclaim liability for all Third-Party
Products, including any Third-Party Products offered by our partners.</p>
6.
Mobile Services
<p>
<em>While we strive to make the Services available on many platforms, we
can't guarantee that the App is compatible with your device (though
please let Customer
Support know if you have a
question or problem.
we want to help).
If you use the App, your standard
data and messaging rates will apply, and the rules of the app store from
which you are downloading will also apply.</em>
</p>
6.1 Wireless Carrier and Device Considerations
<p>To use or access our App, you will need a compatible device.
We cannot
guarantee the App will be compatible with, or available on, your device.
We do not charge for use of the App.
Your phone company’s normal
messaging, data, and other rates and fees, however, will still apply.
You may be required pay fees to access certain special features and
content included in our Premium Subscriptions (as described in Section
7).</p>
6.2 Mobile Application License
<p>We hereby grant you a limited, personal, non-exclusive,
non-transferable, non-sublicensable, revocable license to use the App
downloaded directly from a legitimate marketplace, solely in object code
format and solely for your personal use for lawful purposes.
With
respect to any open source or third-party code that may be incorporated
in the App, such open source code is covered by the applicable open
source or third-party license EULA, if any, authorizing use of such
code.</p>
6.3 App Stores
<p>If you download the App from a third-party app store (the <strong>“App
Provider”</strong>), you acknowledge and agree that:</p>
<ul>
<li>
<p>The Terms are an agreement between us, and not with the App
Provider.
As between MyFitnessPal and the App Provider, MyFitnessPal
is solely responsible for its applications;</p>
</li>
<li>
<p>The App Provider has no obligation to provide any maintenance and
support services with respect to the App;</p>
</li>
<li>
<p>In the event of any failure of the App to conform to any applicable
warranty, (i) you may notify the App Provider and the App Provider
may refund the purchase price for the App to you (if
applicable), (ii) to the maximum extent permitted by applicable law,
the App Provider will have no other warranty obligation whatsoever
with respect to the App, and (iii) any other claims, losses,
liabilities, damages, costs or expenses attributable to any failure
to conform to any warranty will be, as between MyFitnessPal and the
App Provider, MyFitnessPal’s responsibility;</p>
</li>
<li>
<p>The App Provider is not responsible for addressing any claims you
have relating to the App or your possession and use of the App;</p>
</li>
<li>
<p>If a third party claims the App infringes another party’s
intellectual property rights, as between the App Provider and
MyFitnessPal, MyFitnessPal will be responsible for the
investigation, defense, settlement and discharge of any such claim
to the extent required by these Terms;</p>
</li>
<li>
<p>The App Provider and its subsidiaries are third-party beneficiaries
of these Terms as it relates to your license to the App.
Upon your
acceptance of these Terms, the App Provider will have the right (and
will be deemed to have accepted the right) to enforce these Terms as
related to your license of the App against you as a third-party
beneficiary thereof.
and</p>
</li>
<li>
<p>You must also comply with all applicable third-party terms of
service when using the App.</p>
</li>
</ul>
7.
Paid Services
<p>
<em>If you choose to subscribe to any of our enhanced, paid services like
our Premium Subscriptions, these are the payment and billing terms that
apply.
Paid services and billing may auto-renew unless you cancel.
You
may cancel at any time.</em>
</p>
7.1 Payment Terms
<p>We offer certain premium versions of the Services (e.g., Premium
Subscriptions) (the <strong>“Premium Services”</strong>) for a fee.
By signing up for
and using the Premium Services, you agree to our Terms, and any
additional terms and conditions provided here.
You also agree to waive
your 14-day right of withdrawal at the moment you subscribe to the
Premium Services to the maximum extent permitted by applicable law, so
that you are able to immediately access them.</p>
<p>The Premium Services provide you access to certain enhanced content,
features and functionality (e.g., setting macros by grams, an ad-free
experience and per day ).
By signing up for and using the Premium
Services, including signing up for Free Trials of the Premium Services,
you agree to pay any fees or other incurred charges that apply to the
Premium Services (such as ongoing subscription fees).</p>
<p>When you sign up for the Premium Services, you must designate and
provide information about your preferred payment method (<strong>“Payment
Method”</strong>).
This information must be complete and accurate, and you are
responsible for keeping it up to date.
You expressly authorize us to
collect via automatic debit or ACH from your Payment Method the
appropriate fees charged for the Premium Services and for any other
purchases you elect to make via the Services.</p>
<p>You can choose to pay for the Premium Services on a monthly or annual
basis.
Unless otherwise stated, all fees due for the Premium Services
are payable in advance, and will be billed automatically to the Payment
Method at the start of the monthly or annual Premium Service period, as
applicable.
Unless otherwise stated, Premium Services will auto-renew
until you elect to cancel your access to Premium Services.
All purchases
of Premium Services are final and non-refundable, except at our sole
discretion and in accordance with the rules governing each Premium
Service.</p>
7.2 Termination or Cancellation of Premium Services
<p>If you do not pay the fees or charges due for your use of the Premium
Services, we may make reasonable efforts to notify you and resolve the
issue.
however, we reserve the right to disable or terminate your access
to the Premium Services (and may do so without notice).</p>
<p>You can cancel the Premium Services at any time.
More information on how
to cancel can be
found here.
Once you have cancelled your Premium Service and received confirmation,
no other changes can be made to your account.
The cancellation of a
Premium Service will go into effect at the end of your current billing
cycle, and you will have the same level of access to the Premium Service
through the remainder of such billing cycle.
For example, if you are
billed on a monthly basis and cancel during a given month, you will be
charged for the entirety of that month and maintain access to the
Premium Service through the end of that month.</p>
<p>There are no refunds for termination or cancellation of your Premium
Service.
If you no longer wish to subscribe to a Premium Service, it is
your responsibility to cancel your Premium Service in due time,
regardless of whether or not you actively use the Premium Service.</p>
7.3 Fee Changes
<p>To the maximum extent permitted by applicable laws, we may change our
prices for Premium Services at any time.
We will give you reasonable
notice of any such pricing changes by posting the new prices on or
through the applicable Premium Service and/or by sending you an email
notification.
If you do not wish to pay the new prices, you can cancel
the applicable Premium Service prior to the change going into effect.</p>
7.4 Discount, Coupon or Gift Codes
<p>If you have received a discount, coupon or gift code to a Premium
Service, the following terms and conditions apply in addition to the
terms and conditions of the specific code.
To redeem a discount or
coupon code, log in to MyFitnessPal and enter the applicable code to
take advantage of the relevant promotion.
All discounts, gift and coupon
codes can only be applied when subscribing to Premium Services, and to
accounts not already subscribed to Premium Services.
Discount, coupon
and gift codes cannot be combined with any other sales, promotion or
coupon, and cannot be exchanged, refunded, replaced or redeemed for cash
or payment of accounts.
A payment method may be required to redeem a
discount or coupon code.
It is your own responsibility to use a
discount, coupon or gift code before it expires, and expired codes
cannot be refunded or extended.
It is also your responsibility to
terminate the Premium Service before the end of a free or discounted
period if you do not want to continue with a Premium Service at the
regular price.
The terms and conditions of a specific discount, coupon
or gift code may include additional restrictions on its use, including
but not limited to the type of plan, duration of free or discounted
Premium Service, coupon validity dates, and/or purchase quantities.
MyFitnessPal reserves the right to cancel discounts and coupon
promotions at any time.</p>
7.5 Free Trials
<p>We sometimes offer free trials of our Premium Services or other
promotional offers (each a <strong>“Free Trial”</strong>).
A Free Trial provides you
access to the Premium Services for a period of time, with details
specified when you sign up for the offer.</p>
<p>In order to sign up for a Free Trial, you may need to provide us with
your preferred Payment Method.
As soon as you submit your payment
details, your Free Trial will begin.
You will not be charged until the
Free Trial period ends.</p>
<p>
<strong>Unless you cancel before the end of the Free Trial, or unless
otherwise stated, your access to the Premium Service will automatically
continue and you will be billed the applicable fees for that Premium
Service using the Payment Method you provided.</strong> All incurred charges
are final and non-refundable, except at our sole discretion and in
accordance with the rules governing each Premium Service.
We may send
you a reminder when your Free Trial is about to end, but we do not
guarantee any such notifications.
It is ultimately your responsibility
to know when the Free Trial will end if you decide you do not want to
become a paying Premium Services user after the Free Trial period.</p>
<p>If you decide you do not want to become a paying Premium Services user,
you must cancel your subscription before the end of the Free Trial
period.
Depending on the applicable Premium Service, you may lose access
as soon as you cancel or at the end of the Free Trial period.
Once you
have cancelled your Free Trial and received confirmation, you cannot
resume the Free Trial period even if it was not used for the entire
duration of the offer.</p>
<p>Premium Service features and content may change at any time, and we
cannot guarantee any specific feature or content will be available for
the entire Free Trial period.
The rates in effect when you sign up for
the Free Trial will be the same when the Free Trial ends, unless we
notify you otherwise.
We reserve the right, in our absolute discretion,
to modify or terminate any Free Trial offer, your access to the Premium
Services during the Free Trial, or any of these terms without notice and
with no liability.
You may not sign up for more than one Free Trial of a
given Premium Service at the same time, and we reserve the right to
limit your ability to take advantage of multiple Free Trials.</p>
8.
Fitness and Wellness Activities and Dietary Guidance
<p>
<em>It's important to us that users stay healthy while achieving their
fitness and wellness goals.
Please be responsible and use your best
judgment and common sense.
We provide our Services for information
purposes only, and can't be held liable if you suffer an injury or
experience a health condition.
In particular, while most of the content
posted by the other users in our community is helpful, it is coming from
strangers on the Internet and should never trump good judgment or actual
medical advice.</em>
</p>
8.1 Safety First
<p>MyFitnessPal cares about your safety.
You should consult with your
healthcare provider(s) and consider the associated risks before using
our Services in connection with any fitness or wellness regimen-oriented
Content or any dietary program-oriented Content (“<strong>Programs</strong>”).
By
using our Services, you agree, represent and warrant that you have
received consent from your physician to participate in the Programs, or
any of the related activities made available to you in connection with
the Services.
Further, you agree, represent and warrant that you have
consulted with your physician before making any dietary changes based
upon information available through the Services.
Everyone’s condition
and abilities are different, and participating in the Programs and other
activities promoted by our Services is at your own risk.
If you choose
to participate in the Programs and these activities, you do so of your
own free will and accord, knowingly and voluntarily assuming all risks
associated with such activities.
The Programs and other activities
promoted by the Services may pose risks even to those who are currently
in good health.</p>
<p>You expressly agree that your athletic activities, which may generate
the User-Generated Content you post or seek to post on or via the
Services (e.g., workouts exercises, etc.) carry certain inherent and
significant risks of property damage, bodily injury, or death and that
you voluntarily assume all known and unknown risks associated with these
activities.</p>
<p>Except as otherwise set out in these Terms, and to the maximum extent
permitted by applicable law, we are not responsible or liable, either
directly or indirectly, for any injury, illness, or damages sustained
from your use of, or inability to use, any Services or features of the
Services, including any Content or activities you access or learn about
through our Services even if caused in whole or part by the action,
inaction or negligence of MyFitnessPal or others.</p>
8.2 Disclaimer Regarding Accuracy and Reliance on Content
<p>We make no representations or warranties as to the accuracy,
reliability, completeness or timeliness of any Content available through
the Services, and we make no commitment to update such Content.</p>
<p>In addition, User-Generated Content, including advice, statements, or
other information, including, without limitation, food, nutrition,
dietary guidance, exercise or training guidance, athletic activities,
and exercise database entries, are not produced by MyFitnessPal, and
should not be relied on without independent verification.
User-Generated
Content, whether publicly posted or privately transmitted, is the sole
responsibility of the user from whom such User-Generated Content
originated.
All information is provided “as is” without any
representation, warranty or condition as to its accuracy or reliability.</p>
<p>In particular, MyFitnessPal’s food database (<strong>“Food Database”</strong>)
contains a combination of nutritional information entered by
MyFitnessPal and MyFitnessPal members.
Any user of the Services can
contribute to or edit nutritional information in the Food Database.
Please be advised that nutritional information in the Food Database has
not been reviewed by persons with the expertise required to provide you
with complete, accurate, or reliable information.
MyFitnessPal does not
(i) guarantee the accuracy, completeness, or usefulness of any
nutritional information or ingredients in the Food Database.
or (ii)
adopt, endorse or accept responsibility for the accuracy or reliability
of any such nutritional information.
To the extent permitted by
applicable law, under no circumstances will MyFitnessPal be responsible
for any loss or damage resulting from your reliance on nutritional
information.
You are solely responsible for ensuring any nutritional
information in the Food Database is accurate, complete and useful.</p>
<p>Not all users who may identify themselves as professional trainers or
licensed dieticians are licensed in all applicable jurisdictions.
MyFitnessPal has no and assumes no obligation to verify that users who
identify themselves as licensed trainers or dieticians are actually
licensed.
If you hold yourself out as a licensed trainer or dietician,
you represent and warrant that you are actually licensed for the
services you provide in the jurisdiction in which you offer your
services.
Users should also bear in mind that even if a user is a
licensed trainer in one jurisdiction that does not mean the trainer user
is licensed in the jurisdiction from which other users access the
trainer user’s advice.
Accordingly, relying on any advice provided by
other users is at your own risk.
To the extent permitted by applicable
law, under no circumstances will MyFitnessPal be responsible or liable
for any loss or damage resulting from your reliance on information or
advice provided by any user of our Services.</p>
8.3 Not Medical Advice
<p>Any and all services provided by, in and/or through the Services
(including but not limited to Content) are for informational purposes
only.
MyFitnessPal is not a medical professional, and MyFitnessPal does
not provide medical services or render medical advice.
Nothing contained
in the Services should be construed as such advice or diagnosis.
The
information and reports generated by us should not be interpreted as a
substitute for physician consultation, evaluation, or treatment, and the
information made available on or through the Services should not be
relied upon when making medical decisions, or to diagnose or treat a
health condition or illness.
YOUR USE OF THE SERVICES DOES NOT CREATE A
DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND MYFITNESSPAL.</p>
<p>You should seek the advice of a physician or a medical professional with
any questions you may have regarding your health before beginning any
dietary programs or plans, exercise regimen or any other fitness or
wellness activities or plans that may be referenced, discussed or
offered under the Services.
If you are being treated for a health
condition or illness, taking prescription medication or following a
therapeutic diet to treat a disease, you should consult with your
physician before using the Services.
You represent to us (which
representation shall be deemed to be made each time you use the
Services), that you are not using the Services or participating in any
of the activities offered by the Services for purpose of seeking medical
attention.
You further agree that, before using the Services, you will
consult your physician, particularly if you are at risk for problems
resulting from exercise or changes in your diet.
If any information you
receive or obtain from using the Services is inconsistent with the
medical advice from your physician, you should follow the advice of your
physician.</p>
<p>The Premium Services provide you access to certain specialized
Content—namely coaching and guidance on fitness regimens and meal
planning (“<strong>Plans</strong>”).
The Plans are not a medical or any other type of
health service.
No diagnosis or treatment of, or advice regarding, any
dietary or health condition is delivered by the Plans.
The Plans are not
a substitute for, and are not an alternative to healthcare diagnosis and
treatment when a dietary or health condition or illness is present.
You
should seek diagnosis, treatment and advice regarding dietary or health
conditions or illnesses from physicians practicing medicine and other
licensed healthcare professionals.
Under no circumstances will any of
your interactions with our Plans be deemed or construed to create a
physician-patient relationship or a fiduciary duty of any kind
whatsoever.
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH THE
PLANS.</p>
8.4 Success Stories Not Typical
<p>Success stories posted by users or MyFitnessPal on our Services may not
represent typical or even accurate results obtained from any particular
fitness activity or diet.
To the extent permitted by applicable law,
MyFitnessPal has no and assumes no obligation or liability associated
with the accuracy, reliability or effectiveness of any fitness activity
or dietary recommendation contained in any user success stories.</p>
8.5 Accuracy
<p>The Services are intended to provide you with information to encourage
you to support your wellness and fitness activities.
Some of the
Services are aimed at tracking your physical movements and sleep
activity (<strong>“Activity Tracking Services”</strong>).
These Activity Tracking
Services rely on sensors and/or GPS functionality that track your
movement or body at rest.
The data and information provided by the
Activity Tracking Services are intended to be a representation of your
activity, but may not be completely accurate, including with respect to
step, sleep, distance, or calorie data.
By using Activity Tracking
Services, you acknowledge and agree that MyFitnessPal is not responsible
or liable for any inaccuracy in such data.</p>
<p>
<strong>If you are a resident of New Jersey or the Netherlands:</strong>
</p>
<p>Notwithstanding anything herein to the contrary, nothing in these Terms
limits or excludes our responsibility for losses or damages caused by
MyFitnessPal’s own fraud, recklessness, gross negligence or willful
misconduct.</p>
9.
Modifications to the Terms
<p>
<em>As the Services grow and improve, we might have to make changes to
these Terms.</em>
</p>
9.1 Updates to these Terms
<p>We reserve the right to modify these Terms by (i) posting revised Terms
on and/or through the Services, and/or (ii) providing advance notice to
you of material changes to the Terms, generally via email where
practicable, and otherwise through the Services (such as through a
notification on the home page of the MyFitnessPal website or in -app).
Modifications will not apply retroactively unless required by law.</p>
<p>We may sometimes ask you to review and to explicitly agree to or reject
a revised version of the Terms.
In such cases, modifications will be
effective at the time of your agreement to the modified version of the
Terms.
If you do not agree at that time, you are not permitted to use
the Services.
In cases where we do not ask for your explicit agreement
to a modified version of the Terms, the modified version of the Terms
will become effective as of the date specified in the Terms.
Your choice
to maintain an account, access or use the Services (regardless of
whether you create an account with us) following that date constitutes
your acceptance of the terms and conditions of the Terms as modified.
If
you do not agree to the modifications, you are not permitted to use, and
should discontinue your use of, the Services.</p>
10.
No Warranties
<p>EXCEPT WHERE PROHIBITED BY LAW, MYFITNESSPAL EXPRESSLY DISCLAIMS ALL
WARRANTIES, REPRESENTATIONS AND GUARANTEES OF ANY KIND, WHETHER ORAL OR
WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT TO THE FULLEST EXTENT
PERMISSIBLE UNDER THE LAW.
THE SERVICES AND ALL CONTENT ARE PROVIDED ON
AN “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS BASIS.
Without limiting
the foregoing, you understand that, to the maximum extent permitted by
applicable law, we make no warranty regarding the quality, accuracy,
timeliness, truthfulness, completeness, availability, or reliability of
any of the Services or any Content.
To the maximum extent permitted by
applicable law, we do not warrant that (i) the Services will meet your
requirements or provide specific results, (ii) the operation of the
Services will be uninterrupted, virus- or error-free or free from other
harmful elements or (iii) errors will be corrected.
Any oral or written
advice provided by our agents or us does not and will not create any
warranty.
To the maximum extent permitted by applicable law, we also
make no representations or warranties of any kind with respect to any
Content.
User-Generated Content, in particular, is provided by and is
solely the responsibility of the users providing that Content.
No advice
or information, whether oral or written, obtained from other users or
through the Services, will create any warranty not expressly made
herein.
You therefore expressly acknowledge and agree that use of the
Services is at your sole risk and that the entire risk as to
satisfactory quality, performance, accuracy and effort is with you.</p>
11.
Limitation of Liability
<p>
<em>We are building the best Services we can for you but we can't promise
they will be perfect.
We're not liable for various things that could go
wrong as a result of your use of the Services.</em>
</p>
<p>To the maximum extent permitted by applicable law, under no
circumstances (including, without limitation, negligence) shall
MyFitnessPal, its subsidiaries, partners or any wireless carriers be
liable to you or any third party for (a) any indirect, incidental,
special, reliance, exemplary, punitive, or consequential damages of any
kind whatsoever.
(b) loss of profits, revenue, data, use, goodwill, or
other intangible losses.
(c) damages relating to your access to, use of,
or inability to access or use the Services.
(d) damages relating to any
conduct or Content of any third party or user of the Services, including
without limitation, defamatory, offensive or illegal conduct or content.
and/or (e) damages in any manner relating to any Third-Party Content or
Third-party Products accessed or used via the Services.
To the maximum
extent permitted by applicable law, this limitation applies to all
claims, whether based on warranty, contract, tort, or any other legal
theory, whether or not MyFitnessPal has been informed of the possibility
of such damage, and further where a remedy set forth herein is found to
have failed its essential purpose.
To the maximum extent permitted by
applicable law, the total liability of MyFitnessPal, for any claim under
these Terms, including for any implied warranties, is limited to the
greater of five hundred dollars (us $500.00) or the amount you paid us
to use the applicable Service(s) in the past twelve months.</p>
<p>In particular, to the extent permitted by applicable law, we are not
liable for any claims arising out of (a) your use of the Services, (b)
the use, disclosure, display, or maintenance of a user’s Personal Data,
(c) any other interactions with us or any other users of the Services,
even if we have been advised of the possibility of such damages, or (d)
other Content, information, services or goods received through or
advertised on the Services or received through any links provided with
the Services.</p>
<p>To the extent permitted by applicable law, you acknowledge and agree
that we offer the Services and set the Services’ prices in reliance upon
the warranty disclaimers, releases, and limitations of liability set
forth in the Terms, that these warranty disclaimers, releases, and
limitations of liability reflect a reasonable and fair allocation of
risk between you and form an essential basis of the bargain between you
and us.
We would not be able to provide the Services to you on an
economically reasonable basis without these warranty disclaimers,
releases, and limitations of liability.</p>
<p>
<strong>If you are a resident of California:</strong> You waive your rights with
respect to California Civil Code Section 1542, which says “a general
release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release,
which, if known by him must have materially affected his settlement with
the debtor.”</p>
<p>
<strong>If you are a resident of New Jersey:</strong> Notwithstanding anything herein
to the contrary, nothing in these Terms limits or excludes our
responsibility for losses or damages caused by MyFitnessPal’s own fraud,
recklessness, gross negligence or willful misconduct.</p>
12.
Indemnification
<p>
<strong>If you are a resident of the United States or any location other than
France or Germany:</strong> To the maximum extent permitted by applicable law,
you agree to indemnify and hold MyFitnessPal, its affiliates and
partners harmless from any claim or demand, including reasonable
accounting and attorneys’ fees, made by any third party due to or
arising out of (a) the User-Generated Content you access or share
through the Services.
(b) your use of the Services, (c) your activities
in connection with the Services, (d) your connection to the Services,
(e) your violation of these Terms, (f) your use or misuse of any user’s
Personal Data, (g) any violation of the rights of any other person or
entity by you, or (h) your employment of the Services to meet another
user in person.
We reserve the right, at your expense, to assume the
exclusive defense and control of any matter for which you are required
to indemnify us under the Terms, and you agree to cooperate with our
defense of these claims.</p>
<p>
<strong>If you are a resident of France or Germany:</strong> Notwithstanding the
previous paragraph, you agree to indemnify and hold MyFitnessPal, its
affiliates and partners harmless from any claim or demand as result of
your negligent or intentional behavior, including reasonable accounting
and attorneys’ fees, made by any third party due to or arising out of
(a) the Content (including User-Generated Content) you access through
the Services.
(b) your violation of these Terms, (c) your use or misuse
of any user’s Personal Data, (d) any violation of the rights of any
other person or entity by you, or (e) your employment of the Services to
meet another user in person.
We reserve the right, at your expense, to
assume the exclusive defense and control of any matter for which you are
required to indemnify us under the Terms, and you agree to cooperate
with our defense of these claims.</p>
<p>
<strong>If you are a resident of New Jersey:</strong> Notwithstanding anything herein
to the contrary, nothing in these Terms imposes an obligation for you to
indemnify us from claims arising out of MyFitnessPal’s own fraud,
recklessness, gross negligence or willful misconduct.</p>
13.
Governing Law
<p>
<strong>If you are a resident of the United States or any non-European Union
location:</strong> These Terms shall be governed by and construed in accordance
with the laws of the New York and controlling U.S.
federal law as
applicable, without regard to its conflict of law principles.</p>
<p>
<strong>If you are a resident of the European Union:</strong> These Terms shall be
governed by and construed in accordance with the laws of the
Netherlands, without regard to its conflict of law principles.</p>
14.
Disputes and Arbitration, Class Action Waiver, Jurisdiction and Venue
<p>If you are a resident of the United States:</p>
<p>
<strong>Arbitration Agreement</strong>
</p>
<p>YOU AND MYFITNESSPAL AGREE TO SUBMIT ANY AND ALL DISPUTES ARISING OUT OF
OR RELATED TO YOUR USE OF THE SERVICE (A “DISPUTE”) TO BINDING
ARBITRATION.
To the maximum extent permitted by applicable law, you and
MyFitnessPal agrees that any disputes arising out of or related to your
use of the Services (a “<strong>Dispute</strong>”) will be resolved by binding
arbitration pursuant to the Federal Arbitration Act (Title 9 of the
United States Code), which shall govern the interpretation and
enforcement of this arbitration agreement (“Arbitration Agreement”).
In
arbitration, Disputes are resolved by a neutral arbitrator instead of a
judge or jury, discovery is more limited than in court, and the
arbitrator's decision is subject to limited review by courts.
The
arbitrator can award on an individual basis the same damages and relief
as a court, including monetary damages, injunctive relief, and
declaratory relief.
Judgment on the arbitrator's award may be entered in
any court having jurisdiction thereof.
Such dispute resolution
proceedings will be conducted only on an individual basis and not in a
class, consolidated or representative action.
Except where prohibited,
you and we agree to submit to the personal and exclusive arbitration of
Disputes relating to your general use of the Services under the Consumer
Arbitration Rules of the American Arbitration Association.
Please
visit www.adr.org for more information about
arbitration.</p>
<p>Any arbitration between you and us, to the extent necessary, will be
conducted remotely as provided below.</p>
<p>The arbitration will be conducted in English.
A single independent and
impartial arbitrator will be appointed pursuant to the rules of the
American Arbitration Association.
The arbitrator will decide all issues
relating to the enforceability, interpretation, scope, and application
of this Arbitration Agreement (including “gateway” issues of
arbitrability, whether the Arbitration Agreement is unconscionable or
illusory and any defense to arbitration), and these Terms, except that a
court may resolve any question regarding the validity or enforceability
of the class action waiver set forth in this Arbitration Agreement.
The
term "Dispute" and the requirement to arbitrate will be broadly
interpreted.</p>
<p>Both you and we agree to comply with the following rules, which are
intended to streamline the dispute resolution process and reduce the
costs and burdens for everyone involved:</p>
<ul>
<li>
<p>the arbitration will be conducted by telephone, online and/or be
solely based on written submissions, the specific manner to be
chosen by the party initiating the arbitration;</p>
</li>
<li>
<p>the arbitration will not require any personal appearance by the
parties or witnesses unless otherwise mutually agreed in writing by
the parties.
and</p>
</li>
<li>
<p>any judgment on the award rendered by the arbitrator may be entered
in any court of competent jurisdiction.</p>
</li>
</ul>
<p>Barring extraordinary circumstances, the arbitrator will issue his or
her decision within 120 days from the date the arbitrator is appointed.
The arbitrator may extend this time limit for an additional 30 days in
the interests of justice.
All arbitration proceedings will be closed to
the public and confidential and all records relating thereto will be
permanently sealed, except as necessary to obtain court confirmation of
the arbitration award.
The award of the arbitrator will be in writing
and will include a statement describing the reasons for the disposition
of any claim.</p>
<p>You also acknowledge and understand that, with respect to any dispute
with us arising out of or relating to your choice to maintain an
account, access or use the Services:</p>
<ul>
<li>
<p>You are giving up your right to have a trial by jury;</p>
</li>
<li>
<p>You are giving up your right to serve as a representative, as a
private attorney general, or in any other representative capacity,
or to participate as a member of a class of claimants, in any
lawsuit involving any such dispute.
and</p>
</li>
<li>
<p>You must file any claim within one (1) year after such claim arose
or it is forever barred.</p>
</li>
</ul>
<p>Payment of all filing, administration and arbitrator fees will be
governed by the American Arbitration Association’s rules.
MyFitnessPal
will reimburse you for those fees up to $5,000, unless the arbitrator
determines your claims are frivolous.
Likewise, MyFitnessPal will not
seek attorneys' fees and costs in arbitration unless the arbitrator
determines your claims are frivolous.</p>
<p>NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS ARBITRATION AGREEMENT,
YOU MAY CHOOSE TO PURSUE YOUR CLAIM IN COURT AND NOT BY ARBITRATION IF
YOU OPT OUT OF THIS ARBITRATION AGREEMENT WITHIN 30 DAYS FROM THE
EARLIER OF: (1) THE DATE YOU ACCEPT THESE TERMS, OR (2) THE DATE YOU
FIRST AGREED OR ASSENTED TO AN AGREEMENT WITH MYFITNESS PAL THAT
CONTAINED AN ARBITRATION PROVISION.
The opt-out notice must be
postmarked no later than the applicable deadline and emailed to:
legal@myfitnesspal.com.
The opt-out notice must state that you do not
agree to this Arbitration Agreement and must include your name, address,
phone number and email address.
This procedure is the only way you can
opt out of this Arbitration Agreement, and failure to comply strictly
with this procedure and the applicable deadline automatically will
render the opt-out notice null and void.
If you opt out of the
arbitration provision, all other parts of this Arbitration Agreement
will continue to apply.</p>
<p>If this arbitration provision is found to be null and void, then all
disputes arising under the Terms between us will be subject to the
jurisdiction of the state and federal courts located in New York, New
York, and you and we hereby submit to the personal jurisdiction and
venue of these courts.
You and MyFitnessPal agree that if for any reason
a Dispute proceeds in court rather than arbitration: (1) you and
MyFitnessPal waive any right to a jury trial.
(2) the Dispute will
proceed solely on an individual, non-class, non-representative basis.
and (3) neither you nor MyFitnessPal may be a class representative or
class member or otherwise participate in any class, representative,
consolidated, or private attorney general proceeding.</p>
<p>This agreement to arbitrate will not preclude you or MyFitnessPal from
seeking provisional remedies in aid of arbitration, including without
limitation orders to stay a court action, compel arbitration or confirm
an arbitral award, from a court of competent jurisdiction.
Furthermore,
this agreement to arbitrate will not preclude you or MyFitnessPal from
(i) applying to the appropriate court of competent jurisdiction for a
temporary restraining order, preliminary injunction, or other interim or
conservatory relief, as necessary, or (ii) seeking relief in any state
or federal court for disputes related to a violation or possible
violation of MyFitnessPal’s intellectual property rights.</p>
<p>
<strong>If you are a resident of the European Union</strong>: Notwithstanding
anything in these Terms to the contrary, if there is a dispute that you
and MyFitnessPal cannot resolve, you have the right to submit a
complaint through http://ec.europa.eu/consumers/odr.
Other than as set
out in these Terms, we do not participate in any ADR scheme.</p>
<ul>
<li>In addition, nothing in these Terms limits your rights to bring an
action against MyFitnessPal in the local courts of your place of
domicile.
All disputes arising under the Terms between you and
MyFitnessPal will be subject to the non-exclusive jurisdiction of
the courts located in your place of domicile, or the courts located
in the Netherlands, and you and we hereby submit to the personal
jurisdiction and venue of these courts.</li>
</ul>
<p>
<strong>If you are a resident of Finland:</strong> Notwithstanding anything in these
Terms to the contrary, if there is a dispute that you and MyFitnessPal
cannot resolve, you have the right to submit a complaint to the
local Consumer Disputes Board or
other corresponding body.</p>
<p>
<strong>If you are a resident of Denmark:</strong> Notwithstanding anything in these
Terms to the contrary, if there is a dispute that you and MyFitnessPal
cannot resolve, you have the right to submit a complaint to the Danish
Competition and Consumer Authority (Konkurrence- og Forbrugerstyrelsen,
Center for Klageløsning, Carl Jacobsens Vej 35, 2500 Valby,
mail: cfk@kfst.dk).</p>
<p>
<strong>If you are a resident of South Korea:</strong> Notwithstanding anything in
these Terms to the contrary, nothing in these Terms limits your rights
to bring an action against MyFitnessPal in the local courts of your
place of domicile.</p>
15.
International Terms
<p>If you are not a United States resident and you are accessing our
Services from outside the United States, you agree to transfer certain
information outside your location to us, and that you will follow all
the laws that apply to you.</p>
<p>We provide our Services for a global community of users.
Our servers and
operations are, however, located primarily in the United States, and our
policies and procedures are based primarily on United States law.
Because of this, the following provisions apply specifically to users
located outside of the United States: (i) you consent to the transfer,
storage, and processing of your information, including but not limited
to User-Generated Content and any Personal Data, to and in the United
States and/or other countries.
(ii) if you are using the Services from a
location embargoed by the United States, or are on the United States
Treasury Department’s list of “Specially Designated Nationals,” you are
not authorized to access or make use of the Services.
and (iii) you
agree to comply with all local laws, rules, and regulations including,
without limitation, all laws, rules, and regulations in effect in the
location in which you reside and the location from which you access the
Services.
The Services are not intended for distribution to, or use by,
any person or entity in any jurisdiction or location where such
distribution or use would be contrary to law or regulation, or which
that would subject MyFitnessPal or its affiliates to any registration
requirement within such jurisdiction or location.</p>
<p>The names used for countries or regions in these Terms, the Privacy
Policy and any associated
features or documentation are based on the United Nations Terminology
Database.</p>
<p>
<strong>If you are a resident of the European Union, Hong Kong (SAR of China),
Russia, New Zealand or South Korea:</strong> Notwithstanding anything in these
Terms to the contrary, please note that certain jurisdictions may not
allow the waiver or limitation of certain warranties, liabilities or
damages under mandatory law, so some of the exclusions and limitations
in these Terms may not apply to you.
Nothing in these Terms limits or
excludes our responsibility for (1) fraudulent representations made by
us, (2) death or personal injury caused by our negligence or willful
misconduct, or (3) non-execution of any material contractual obligation.</p>
<p>
<strong>If you are a resident of New Zealand:</strong> Notwithstanding anything in
these Terms to the contrary, nothing in these Terms limits or excludes
our liability or your rights if you are a consumer for the purposes of
the Consumer Guarantees Act 1993, or the Fair Trading Act 1986.</p>
<p>
<strong>If you are a resident of Germany, France, Austria or
Finland:</strong> Notwithstanding anything in these Terms to the contrary, the
qualifier “to the maximum extent permitted by law” and other qualifiers
of similar effect shall be deemed to be deleted from the Terms
everywhere it appears and shall have no force and effect.</p>
<p>
<strong>If you are a resident of Japan:</strong> Notwithstanding anything in these
Terms to the contrary, nothing in these Terms limits or excludes our
liability or your rights if you are a consumer for the purposes of the
Consumer Contract Act.</p>
<p>
<strong>If you are a resident of South Korea:</strong> Notwithstanding anything in
these Terms to the contrary, any modification to these Terms will be
announced on the website prior to the effective date thereof.
provided
if you do not express intent to refuse such modification or change after
a reasonable period of time following such announcement, it is deemed
that you have consented to such modification or change.</p>
16.
Survival
<p>If our relationship or these Terms terminate, it will not limit any of
our other rights or remedies, and any provision of these Terms that must
survive in order to give proper effect to the intent and purpose of
these Terms will survive termination, including without limitation
Sections 2 (Ownership and Use of Content), 8 (Fitness and Wellness
Activities and Dietary Guidance), 10 (No Warranties), 11 (Limitations of
Liability), 12 (Indemnification), 14 (Disputes and Arbitration,
Jurisdiction and Venue), and 16 (Survival).</p>
17.
Miscellaneous
<p>You agree that no joint venture, partnership, employment, or agency
relationship exists between you and us as a result of the Terms or your
use of the Services.
The Terms constitute the entire agreement between
you and us with respect to your use of the Services.</p>
<p>Our failure to exercise or enforce any right or provision of the Terms
does not constitute a waiver of such right or provision.
If any
provision of the Terms is found by a court of competent jurisdiction to
be invalid, the parties nevertheless agree that the court should
endeavor to give effect to the parties’ intentions as reflected in the
provision, and the other provisions of the Terms remain in full force
and effect.</p>
<p>You may not assign, delegate, or otherwise transfer your account or your
obligations under these Terms without our prior written consent.
We have
the right, in our sole discretion, to transfer or assign all or any part
of our rights under these Terms and will have the right to delegate or
use third-party contractors to fulfill our duties and obligations under
these Terms and in connection with the Services.</p>
<p>Our notice to you via email, regular mail, or notices or links displayed
in connection with the Services constitutes acceptable notice to you
under the Terms.
We are not responsible for your failure to receive
notice if email is quarantined by your email security system (e.g.,
“junk” or “spam” folder) or if you fail to update your email address.
Notice will be considered received forty-eight hours after it is sent if
transmitted via email or regular mail.
In the event that notice is
provided via links displayed in connection with the Services, then it
will be considered received twenty-four hours after it is first
displayed.</p>
18.
Contact Us
<p>If you have any feedback, questions or comments about the Services,
please contact our Support Team as detailed
here by email or by mail at:
MyFitnessPal, Inc., 135 Townsend Street, San Francisco, CA 94107, and
include the subject as “Attn: –MyFitnessPal Terms and Conditions of
Use”.
Please be sure to include in any email or postal mail your full
name, email address, postal address, and any message.</p>