SCOPE OF THESE TERMS
These Terms and Conditions of Service (“Terms & Conditions”) apply to (i) your use of and/or access to the Fruit Street Diabetes Prevention and Weight Loss program and its website at dpp.fruitstreet.com (“Website”) which is owned or operated by Fruit Street Health, P.B.C. (collectively, “Fruit Street”, “we,” “us,” or “our”), and (ii) your use of the mobile applications which deliver the products and services contained on the Website (collectively, the “Mobile App”) and (iii) your use of and or access to any devices, content or information and other online or mobile-enabled technology, digital tools and other services and products provided by us (together with the Website and the Mobile App, collectively, the “Services”).
IF YOU DO NOT OR CANNOT AGREE TO THESE TERMS & CONDITIONS, THEN YOU DO NOT HAVE THE RIGHT TO BROWSE, LICENSE OR ACCESS THESE SERVICES.
ACCEPTANCE OF TERMS AND CONDITIONS
1. User Agreement. By using the Services, you accept these Terms & Conditions and agree to be legally bound and to abide by the terms, conditions, and notices contained or referenced herein, just as if you had signed them.
2. Agreement to Changes. We may make changes to these Terms & Conditions (“Additional Terms”). Such Additional Terms shall become effective upon posting by the Company on the Website, the Mobile App, via the Service or sending you an email or other notification. You will be deemed to have agreed to such Additional Terms by your decision to continue accessing the Mobile App or the Website or otherwise using any of the Services following the date in which such Additional Terms become effective.
3. Modification of Services. We may discontinue, modify or alter any aspect of the Services provided to you without prior notice. You agree that we shall not be liable to you or any third party for any termination or cancellation of your access to, or use of, the Services.
4. A user must be over 18 years of age to utilize our Services. By using the Services, you represent and warrant that you are at least 18 years of age and have the right, authority and capacity to enter into these Terms & Conditions and to abide by the terms and conditions of these Terms & Conditions.
5. You represent and warrant that all user information you provide on the registration form for the Services is current, complete and accurate. You are responsible for keeping the confidentiality of your user account information. You may also be held liable for any losses incurred by Fruit Street, its affiliates, officers, directors, employees, consultants, agents and representatives due to someone else’s use of your account.
RECEIPT OF ELECTRONIC COMMUNICATIONS
7. Service Announcements. You may receive periodic electronic communications from Fruit Street regarding the Services, including new product offers and other information with respect to the Services, of which you cannot opt out of receiving.
8 Promotional Communications. You may also receive periodic promotions and other offers or materials Fruit Street believes might be of interest to you. You can opt out of receiving these promotional messages at any time by following the unsubscribe instructions contained in each message.
9. Subject to your continued compliance with the Terms & Conditions, including without limitation the timely payment of all applicable fees, if any, we grant you a non-exclusive, non-transferable, non-sublicensable, fully revocable, limited license to access and use our Services (whether through the Website or by downloading and installing the Mobile App, including any updates and bug fixes). Your use is limited for your personal, noncommercial use only.
10. The Services, or any portion thereof, may not be reproduced, duplicated, copied, modified, sold, resold, distributed, visited, or otherwise exploited for any commercial purpose without the express written consent of Fruit Street. Furthermore, except for the limited rights granted in this Section, you will not (and will not encourage or assist any third party to): (i) modify, alter, tamper with, repair or otherwise create derivative works of the Services or any software or technology included in or used or distributed by Fruit Street to provide the Services; or (ii) reverse engineer, disassemble or decompile the Services, or attempt to discover or recreate the source code for the Services.
RESTRICTIONS ON USE OF CONTENT
11. All Content contained in the Services is copyrighted under the United States copyright laws and we also own a copyright in the selection, coordination, arrangement and enhancement of such Content. Included among this content is information, software, photos, video, text, graphics, music, sounds, questions, creative suggestions, messages, comments, feedback, articles and other materials subject to protection under the laws of copyright.
13. Copyright. You agree not to upload, post, transmit, display, perform or distribute any User Content in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights, or rights of publicity or privacy, or in violation of any applicable law or regulation.
14. Grant of License to Fruit Street. You hereby grant Fruit Street Health, P.B.C., which provides the Services, and its respective directors, officers, employees, agents, affiliates, representatives, service providers, partners, sublicensees, successors and assigns (collectively, the “Fruit Street Parties”) a royalty-free, perpetual, irrevocable, sublicensable, assignable, non-exclusive right (including any moral rights) and license (as well as consent) to use, license, reproduce, modify, adapt, publish, translate, transmit, edit, reformat, create derivative works from, distribute, derive revenue or other remuneration from, communicate to the public, perform, display and otherwise use any User Content (in whole or in part and with or without the use of your name) worldwide and/or to incorporate the User Content in other works in any form, media, or technology now known or later developed, for the full term of any copyrights, trademarks and other intellectual and proprietary rights (collectively, the “Rights”) that may exist in such User Content.
15. Warranty. You hereby represent and warrant that you own all rights, title and interest in and to User Content or are otherwise authorized to grant the rights provided to the Fruit Street Parties under this section.
16. Removal of User Content. Fruit Street reserves the right to remove, suspend, edit or modify any User Content in its sole discretion at any time, without notice to you and for any reason or for no reason at all.
17. Access Required by Law. Fruit Street also reserves the right to access, read, preserve, and disclose any information as Fruit Street reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms & Conditions, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Fruit Street, its users and the public.
18. DISCLAIMER. FRUIT STREET DISCLAIMS ANY PERCEIVED, IMPLIED OR ACTUAL DUTY TO MONITOR THE USER CONTENT, AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR INFORMATION PROVIDED HEREIN. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE IN ANY WAY FOR ANY USER CONTENT (OTHER THAN FOR CONTENT DEVELOPED BY US), INCLUDING, BUT NOT LIMITED TO, FOR ANY ERRORS OR OMISSIONS IN ANY USER CONTENT, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY USER CONTENT POSTED, EMAILED OR OTHERWISE TRANSMITTED TO OR THROUGH THE SERVICES.
19. NEITHER THE FRUIT STREET PARTIES NOR ITS SERVICES PROVIDE PROFESSIONAL MEDICAL SERVICES OR ADVICE. THE SERVICES PROVIDED BY THE WEBSITE AND/OR MOBILE APP DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL ADVICE OR OPINION. NO DOCTOR-PATIENT RELATIONSHIP IS CREATED. USE OF THE SERVICES IS NOT FOR MEDICAL EMERGENCIES. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911.
20. You are urged and advised to seek the advice of a physician or a medical professional with any questions you may have regarding your health before beginning any weight loss effort regimen, physical activities or any other plans that may be referenced, discussed or offered under the Services. If you are being treated for an illness, taking prescription medication or following a therapeutic diet to treat a disease, it is especially urged that you 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 the purpose of seeking medical attention. You further agree that, before using the Services, you shall 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.
21. FRUIT STREET EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY THAT MAY ARISE FROM OR IN CONNECTION WITH YOUR USE OF THE SERVICES AND PARTICIPATION IN ANY OTHER ACTIVITIES OFFERED IN THE SERVICES.
DISCLAIMER OF WARRANTIES
22. THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS PROVIDED IN THE SERVICES ARE PROVIDED BY FRUIT STREET “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY LAW, FRUIT STREET DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY OR NON-INFRINGEMENT.
23. FRUIT STREET DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE APPLICATIONS OR THE SERVERS THAT MAKE THE APPLICATIONS AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
24. FRUIT STREET DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
25. NO ADVICE OR INFORMATION, OBTAINED BY YOU FROM OUR PERSONNEL OR THROUGH THE SERVICES, SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THESE TERMS & CONDITIONS.
LIMITATION OF LIABILITY
26. YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT SHALL FRUIT STREET BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR RESULTING FROM, (A) THE USE OR THE INABILITY TO USE THE SERVICES; (B) THE USE OF ANY CONTENT OR OTHER MATERIAL ON THE WEBSITE, OUR APPLICATIONS OR APPLICATIONS LINKED TO OUR APPLICATIONS, (C) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR SERVICES; OR (F) ANY OTHER MATTER RELATING TO THE SERVICES.
27. YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY FRUIT STREET FROM ANY AND ALL CLAIMS, ACTIONS OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF SERVICES OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM YOUR USE OF THE SERVICES.
28. YOU UNDERSTAND AND AGREE THAT THE CANCELLATION OR TERMINATION OF YOUR PARTICIPATION IN THE SERVICES IS YOUR SOLE RIGHT AND REMEDY WITH RESPECT TO ANY DISPUTE WITH US.
29. THE MAXIMUM LIABILITY OF FRUIT STREET TO YOU UNDER ALL CIRCUMSTANCES FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING OUR SERVICES. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN FRUIT STREET AND YOU. THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE SERVICES, OR THESE TERMS & CONDITIONS, MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN THESE TERMS & CONDITIONS.
30. Software. You acknowledge and agree that the Services and all intellectual property rights associated therewith are, and shall remain, the property of Fruit Street (and, where applicable, its licensors). Furthermore, you acknowledge and agree that the source and object code of the Website and/or Mobile App and the format, directories, queries, algorithms, structure and organization of the Website and/or Mobile App are the intellectual property and proprietary and confidential information of Fruit Street and its affiliates, licensors and suppliers. Except as expressly stated in these Terms & Conditions, you are not granted any intellectual property rights in or to the Services by implication, estoppel or other legal theory, and all rights in and to the Services not expressly granted in these Terms & Conditions are hereby reserved and retained by Fruit Street.
31. Trademarks. Fruit Street owns trademarks or registered trademarks including graphics, logos and domain names appearing within the Services (the “Fruit Street Marks”). Neither your use of the Services, nor these Terms & Conditions, grant you any right, title or interest in or to, or any license to reproduce or otherwise use, the Fruit Street Marks or any third-party trademarks, service marks, graphics, logos or domain names. You agree that any goodwill in the Fruit Street Marks generated as a result of your use of the Services will inure to the benefit of Fruit Street and you agree to assign, and hereby do assign, all such goodwill to Fruit Street. You shall not at any time, nor shall you assist others to, challenge Fruit Street’s right, title, or interest in or to, or the validity of, the Fruit Street Marks.
32. Copyrighted Materials; Copyright Notice. All content and other materials available through the Services, including without limitation the Fruit Street logo, design, text, graphics, and other files, and the selection, arrangement and organization thereof, are either owned by Fruit Street or are the property of Fruit Street’s licensors and suppliers. Except as explicitly provided, neither your use of the Services nor these Terms & Conditions grant you any right, title or interest in or to any such content or materials.
33. Without limiting any indemnification provisions of these Terms & Conditions, you agree to indemnify, hold harmless and, at our option, defend Fruit Street and our affiliates, and our and their respective officers, directors, members, employees, stockholders, managers, agents and representatives (collectively, “Fruit Street Indemnified Parties” or “Indemnified Parties”) from any and all third party claims, actions, demands, causes of action, liability, damages and/or costs (including, but not limited to, reasonable attorneys’ fees and expenses) (collectively, “Claims”) arising from (i) your improper use of the Services or our products or offerings, (ii) your violation of these Terms & Conditions, (iii) your provision to Fruit Street or any of the Indemnified Parties of information or other data, (iv) your infringement or alleged infringement, or the infringement or use (or alleged infringement or alleged use) by any other user of your account, of any intellectual property or other right of any person or entity, or (v) your violation or alleged violation of any foreign or domestic, federal, state or local law or regulation.
34. The Indemnified Parties will have the right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claims as to which you are required to defend, indemnify or hold harmless the Indemnified Parties. You may not settle any Claims without the prior written consent of the concerned Indemnified Parties.
GOVERNING LAW AND VENUE
35. These Terms & Conditions shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to your use of the Services or these Terms & Conditions shall be filed only in the state or federal courts located in New York County in the State of New York and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
TERM AND TERMINATION
36. Termination. These Terms & Conditions will remain in full force and effect while you use our Services (including our Website and Mobile Apps). We may terminate your use of, or access to, the Service in accordance with these Terms & Conditions.
37. Effect of Termination; Survival. Termination of these Terms & Conditions automatically terminates all rights and licenses granted to you under these Terms & Conditions, including all rights to use the Services, except that all terms that by their nature may survive termination shall be deemed to survive such termination (including, without limitation, intellectual property, disclaimers, limitations of liability, User Content license, governing law and venue). Subsequent to termination, Fruit Street reserves the right to exercise whatever means it deems necessary to prevent your unauthorized use of the Services, including without limitation technological barriers such as IP blocking and direct contact with your Internet Service Provider.
38. Legal Action. If we, in our sole discretion, take legal action against you in connection with any actual or suspected breach of these Terms & Conditions, we will be entitled to recover from you as part of such legal action, and you agree to pay, our reasonable costs and attorneys’ fees incurred as a result of such legal action. The Fruit Street Parties will have no legal obligation or other liability to you or to any third party arising out of or relating to any termination of these Terms & Conditions.
39. If any provision of these terms shall be found by a court of competent jurisdiction to be unlawful, invalid, void or voidable, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. These Terms & Conditions are the entire agreement between you and us relating to the subject matter herein. We may assign our rights and obligations under these Terms & Conditions. These Terms & Conditions will inure to the benefit of our successors, assigns and licensees. The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision of these Terms & Conditions, or to exercise any right under the Terms & Conditions, will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.
LAST UPDATED: April 21, 2022