Terms and Conditions of Use/ Service AgreementLast Updated: 4/10/2013
eDiets.com, Inc. (“eDiets”) owns and operates the eDiets.com website (the “Website”),
as well as the healthy living online and meal delivery programs available on or through the Website.
The “Service” refers to the Website and all information, products and services offered on or through the Website. The terms “we”, “us” and “our” each refers to eDiets and its affiliates. The terms “you”, “your”, “yourself” and “user” each refers to the individual who uses the Service. You “use” the Service each time you enter the Website, navigate within the Website, download from the Website or purchase any products or services through the Website. The term “User Content” refers to any messages, text, profiles (including your name, image, and likeness), information, photos, video, audio, artwork, and other content that you post. The term “post” means to upload, publish or display User Content on or through the Service or to transmit to or share User Content with other users.
You must be eighteen (18) years of age or older to view, participate or purchase any product or service offered on or through the Website.
The information presented on the Website is in no way intended as medical advice or as a substitute
for medical treatment. This information should only be used in conjunction with the guidance and care
of your physician.
The Service is intended to provide you with information and tools to help you look and feel better. You should consult your physician before beginning any diet, nutrition, or fitness program through the Website. In particular:
- You may not participate in a meal delivery program if you are a nursing mother or an individual with food allergies or intolerance.
- If you are an individual living with diabetes, you may participate in a meal delivery program only with the express consent of your physician.
- You may not participate in an online or meal delivery program if you are pregnant or have an eating disorder.
If you fit into one of these categories and have already joined a program, please contact Member Services
immediately so that your account may be terminated. We reserve the right to refuse or cancel your membership
due to your medical condition, including but not limited to pregnancy, allergies, or diabetes. If there
is any change in your medical condition, you should discuss your continued participation in our program
with your physician.
Our meal delivery food items may contain or may have been manufactured in a facility that also processes: milk, eggs, peanuts, tree nuts, wheat, soybeans or fish, including shellfish.
Ordering, Billing and Fulfillment
When you register for an online program, your credit card will be charged for the initial period of
your specified program. Your online program will renew automatically, and your credit card will be
charged, based on the billing cycle agreed upon at registration.
We may offer trial memberships for Online programs. At the end of the trial period, the membership will automatically convert to a standard membership. Activation of a trial membership requires a valid credit card, which will be billed at the end of the trial period. If you choose not to continue past the trial period and wish to cancel, to avoid charges you must contact Member Services prior the end of your trial period.
When you register for a meal delivery program, your credit card will be charged for your initial shipment. Your initial order is non-cancellable and non-refundable. Your credit card will then automatically be charged for each subsequent shipment unless you skip or cancel prior to the Cutoff Time. The Cutoff Time is 8:59 pm Eastern Time on the Wednesday prior to your shipping date. Please note that your order cannot be changed or cancelled after the Cutoff Time.
Our meal delivery program ships to and is available throughout the contiguous United States. Your meals will be shipped to you each week unless you choose to skip that particular week. You may do this prior to the Cutoff Time by logging into your account online or contacting Member Services.
You may cancel your online or meal delivery program membership at anytime by contacting Member Services. If you cancel your online program membership after less than three months, your credit card will be charged a twenty-five dollar ($25) early termination fee. If you cancel your meal delivery program after less than three billing cycles, your credit card will be charged the amount of any promotional discounts received.
Unless otherwise expressly stated, there are no refunds.
Food Substitution Policy
Although we make every reasonable effort to deliver the items in your order, product availability may change without notice. In case an item in your order is unavailable, we reserve the right to substitute a similar item in its place. Substituted food items may contain different ingredients and allergens than those in items originally ordered. Prior to consumption, please be sure to carefully check all individual product packages if you have any food allergies or if you are otherwise concerned about any particular ingredients.
License And Website Access
Provided you are eligible to use the Service, we grant you a limited license to access and use the Website for your personal non-commercial use. Any other use of the Service or the Website without our prior written permission is strictly prohibited and will terminate your limited license. Without limiting the generality of the foregoing,
- except for your own User Content, you may not upload or republish Website content or incorporate the information in any other database or compilation;
- you may not use any data mining, crawling, robots, scraping or similar data gathering or extraction methods; and
- except as otherwise explicitly provided herein, you have no license or intellectual property rights in any Website content.
You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of the Website so long as the link does not portray eDiets, its affiliates, or their products or services in a false, misleading, derogatory, or otherwise offensive manner. You may not use any eDiets logo or other proprietary graphic or trademark as part of the link without express written permission. This limited license is revocable at any time without notice and with or without cause.
You agree that all communications that we provide to you electronically will satisfy any legal requirement
that such communications be in writing. In addition, we may deliver communications (including legal
notices) to you at the street address provided in your membership account. Finally, we may deliver
communications to you by any means set forth in any other policy or notice published on the Website.
You may contact us by:
- email to firstname.lastname@example.org (provide your first and last name and user name; we will not open your email if it contains an attachment);
- mail to eDiets.com, Inc., 555 SW 12th Avenue, Suite 210, Pompano Beach, FL 33069, Attn: Member Services (provide your first and last name, user name, and email address); or
- phone to Member Services at (800) 265-6170.
If you provide comments, suggestions, or feedback, you agree that we retain all irrevocable, royalty-free rights, including but not limited to future reproduction, display, or promotion without any compensation to you whatsoever. Comments suggestions, or feedback shall not be confidential.
Property Rights in Site Content
All content available through the Service (collectively, “Content”), including designs, text, graphics, pictures, video, information, applications, software, music, sound and other files, and their selection and arrangement, is our exclusive property or that of our licensors with all rights reserved, except for User Content in which a user retains rights as set forth below. No Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without our prior written permission, except as expressly allowed under this Agreement.
User Content Posted on Website
You are solely responsible for the User Content that you post. You may not post User Content on the
Website that you did not create or that you do not have permission to post. We may, but we are not
obligated to, review the Website and delete or remove without notice any User Content, for any reason
or no reason, including User Content that in our sole judgment (a) violates this Agreement, (b) might
be offensive or illegal, or (c) might violate the rights, harm or threaten the safety of users or others.
You are responsible at your sole cost and expense for creating backup copies and replacing any User
Content you post. When you post User Content, you authorize and direct us to make such copies thereof
as we deem necessary in order to facilitate the posting and storage of the User Content.
By posting User Content, you automatically grant, and you represent and warrant that you have the right to grant:
- an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Service or the promotion thereof;
- to prepare derivative works of, or incorporate into other works, such User Content; and
- to grant and authorize sublicenses of the foregoing.
You may remove your User Content from the Website at any time, but without affecting the rights and the license granted to us when you posted your User Content, except that we will not display removed User Content on the Website. We may retain archived copies of your User Content. Subject to the rights granted to us in this Agreement, you retain full ownership of all of your User Content and any intellectual property rights or other proprietary rights associated with your User Content.
Third Party Content
Certain Content on the Website, including User Content, has been provided by third parties. We are a distributor of this third-party Content and not a publisher, and we have no more editorial control over such third party Content than does a public library or newsstand. Any opinions, advice, statements, services, offers, or other information comprising third party Content are those of the respective authors. We do not guarantee the accuracy, completeness or usefulness of any third party Content, nor its merchantability or fitness for any particular purpose. Under no circumstances shall we be liable for any loss, damage or harm caused by a your reliance on such third party Content.
Disclaimers and Limitation of Liability
The Service is at your sole risk. We do not warrant that the Service will be uninterrupted or error-free;
nor do we warrant or make any representation regarding the use of the information provided on the Website
or the results that may be obtained from the use of the information provided through the Service, or
as to the accuracy, reliability, or currency of any information, content, service, or merchandise provided
through the Service. We do not endorse, recommend, or sponsor, and we are not affiliated with, any
individuals or entities listed on or linked to the Website unless that fact is expressly stated. The
listing of any individual or entity does not constitute a medical referral of any kind. You are advised
to exercise your own judgment in the selection of any and all medical professionals and health information.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICE OR THE INFORMATION, CONTENT, MATERIALS OR PRODUCTS COMPRISING THE SERVICE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS AND BUSINESS INTERRUPTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, ARISING IN ANY WAY FROM THE SERVICE, THE USE OF THE SERVICE OR THE INABILITY TO USE OR ACCESS THE SERVICE, EVEN IF WE ARE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUR LIABILITY EXCEED THE PRICE YOU PAID FOR THE ASPECT OF THE SERVICE THAT IS THE SUBJECT OF THE CLAIM. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY US OR ON OUR BEHALF SHALL CREATE A WARRANTY; NOR SHALL YOU RELY ON ANY SUCH INFORMATION OR ADVICE.
You may use the Service only for lawful purposes. You may not post on or transmit through the Website any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically, or otherwise objectionable material of any kind, including but not limited to any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law or regulation. If we are notified of allegedly infringing, defamatory, damaging, illegal, or offensive content, we may investigate and determine in our sole discretion whether to remove or request the removal of such content from the Website. We may disclose any content or electronic communication of any kind: (a) to satisfy any law, regulation, or government request; (b) if such disclosure is necessary or appropriate to provide the Service; or (c) to protect our rights or property or the rights or property of other users.
Links to Other Sites
The Service may reference or link to third-party sites throughout the Internet. We have no control over these third-party sites or the content within them. We cannot and do not guarantee, represent or warrant that the content contained in these third-party sites is accurate, legal or inoffensive. We do not endorse the content of any third-party site, nor do we warrant that it will not contain viruses or otherwise impact your computer. We do not assume any responsibility or liability for the actions, products, services or content of any third party. If you choose to use a link on the Website to visit a third-party website, you should carefully review the third party’s privacy statement and other terms and conditions of use. You may not make any claim against us for any damages or losses resulting from your use of the Website to reach any third party site.
Trademark and Copyright Policy
All Service materials and Content (excluding User Content) are protected pursuant to United States and international trademark and copyright laws and international treaties. EDIETS, EDIETS.COM, and DIETSMART and the related logos and other marks indicated on our Website are our exclusive property and trademarks. We enforce our rights to the fullest extent permitted under the law, and we reserve all rights, including all rights applicable under Section 1125 of Title 15 of the U.S. Code (Lanham Act Sec. 43). You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. Without limiting the foregoing, if you believe that your work has been copied and published in the Service in a way that constitutes copyright infringement, please provide us with the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located on the Website; your address, telephone number, and email address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
You agree to indemnify, defend and hold harmless, us as well as our third party content providers, licensors, and each of their directors, officers, agents, contractors, partners and employees (collectively, the “Indemnified Parties”) from and against any and all liability and costs including, without limitation, reasonable attorneys’ fees, incurred by the Indemnified Parties in connection with any claim arising out of any breach by you of this Agreement. You will cooperate as fully as reasonably required in the defense of any such claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
The Service is created and operated by us in the State of Florida. As such, the laws of the State of Florida govern this Agreement, without giving effect to any principles of conflicts of laws. You agree that any disputes that arise from this Agreement or from the Service will be resolved by arbitration in accordance with the rules of the American Arbitration Association (“AAA”). The arbitration will take place in Fort Lauderdale, FL and will be conducted only on an individual basis and not in a class or representative action or as a member in a class, consolidated or representative action, even if AAA’s rules provide otherwise. The prevailing party shall be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney’s fees.
We reserve the right to amend the Agreement at any time. Any amendment will become effective upon notification, which we will effect by posting a revised Agreement on the Website. We may also send you notice by email, but we are not obligated to do so. You can access the Agreement at any time using the “Terms and Conditions” link. You agree to review the Agreement periodically to ensure you are aware of all amendments. Each time you use the Service after notification, you are confirming that you are bound by the Agreement as amended.
We reserve the right to terminate your account and access to the Service for any reason, including if we in our sole discretion consider your use to be unacceptable. We may provide you a warning prior to termination, but we are not obligated to do so.
This Agreement represents the entire agreement between you and us regarding the use of the Service and supersedes any other agreement or understanding on the subject matter. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and be enforceable. This Agreement is not assignable, transferable or licensable without our prior written consent. We may assign this Agreement in whole or in part. This Agreement will inure to the benefit of our successors, assigns, and licensees. No agency, partnership, joint venture, or employment is created as a result of this Agreement. Headings are for convenience only and have no legal or contractual effect. The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision of this Agreement, or to exercise any right under this Agreement, 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.