Terms of Service
Last Updated: October 29, 2021
Welcome, and thank you for your interest in Thrive365 (“Thrive365,” “we,” or “us”) and our website at www.thrive365.com, along with our related websites, applications, mobile applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Thrive365 regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THRIVE365’S PRIVACY POLICY (TOGETHER, THESE “TERMS”). If you are not eligible, or do not agree to the Terms, then you do not have our permission to use the Service. YOUR USE OF THE SERVICE, AND THRIVE365’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY THRIVE365 AND BY YOU TO BE BOUND BY THESE TERMS.
Arbitration NOTICE. Except for certain kinds of disputes described in Section 17, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND THRIVE365 ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 17.)
1. Thrive365 Service Overview. Thrive365 offers a service that provides a daily meal and snack score target (your “Target Score”) covering three meals and a snack daily, and provides the scores associated with numerous food items (the “Food Score”) available for purchase in the United States and Canada, as well as the menus for approximately 800 restaurant brands in the United States and Canada, allowing you to eat, without complex calculations, to the recommended Target Score. The Service also allows you to log your meals, glucose levels, activity levels, and medications and allows you to follow meal plans recommended by Thrive365 that are consistent with guidelines established by the American Diabetes Association.
Thrive365’s products and services have not been evaluated by the U.S. Food and Drug Administration and are not intended to diagnose, treat, cure, or prevent any disease or condition. Any information we provide is for informational purposes only and should not be used for the diagnosis or treatment of any medical condition.
The information that we may provide is not intended to replace consultation with a licensed healthcare professional for the diagnosis, cure, mitigation, treatment or prevention of disease, injury or other conditions. Always seek the advice of your physician or other qualified health providers before deciding to start, alter, or discontinue any course of medical treatment or for any questions regarding your medical condition, your diet, or the use (or frequency) of any medication or medical device. Do not use the Service as a substitute for consulting with your physician or other health care provider, and do not disregard professional medical advice or delay in seeking it because of any information received in connection with our services.
THRIVE365 DOES NOT PROVIDE ANY INFORMATION WITH RESPECT TO ALLERGENS OR OTHER COMPONENTS OF FOODS THAT MAY BE HARMFUL TO YOU OR ANY PARTICULAR TYPES OF FOODS THAT MAY BE HARMFUL TO YOU. YOU REMAIN SOLELY RESPONSIBLE FOR THE FOODS YOU EAT AND FOR ENSURING YOU DO NOT CONSUME ANY SUCH POTENTIALLY HARMFUL FOODS OR FOODS CONTAINING SUCH ALLERGENS.
THE SERVICE RELIES ON NUTRITION AND OTHER DATA FROM THIRD-PARTY SOURCES, INCLUDING MANUFACTURERS, NUTRITION DATA AGGREGATORS, AND THE U.S. Food and Drug Administration. THIS DATA MAY CONTAIN INACCURACIES OR BE INCOMPLETE. THRIVE365 DOES NOT WARRANT OR OTHERWISE MAKE ANY commitments WITH RESPECT TO THE AVAILABILITY OR ACCURACY OF ANY DATA THAT IS (OR IS PURPORTED TO BE) MADE AVAILABLE TO YOU VIA THE PLATFORM OR THE CONSEQUENTIAL ACCURACY OF THE FOOD SCORE.
2. Eligibility. You must be at least 18-years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18-years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
3. Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, date of birth, gender, height, weight, some information about your activity level, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up to date at all times. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at [email protected].
4. Payment Terms.
4.1 General Terms. Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable.
4.2 Price. Thrive365 reserves the right to determine pricing for the Service. Thrive365 may change the fees for any feature of the Service, including additional fees or charges, if Thrive365 gives you advance notice of changes before they apply. Thrive365, at its sole discretion, may make promotional offers with different features and different pricing to any of Thrive365’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
4.3 Authorization. You authorize Thrive365 to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Thrive365, including all applicable taxes, to the payment method specified in your account.
4.4 Subscription Service. The Service includes automatic recurring payments for periodic charges regardless of whether you selected a monthly or annual subscription (“Subscription Service”). If you activate a Subscription Service, you authorize Thrive365 to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. Your account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next subscription period. If you are subscribed to an annual plan for the Subscription Service, we will provide you with reasonable notice of the upcoming renewal of your Subscription Service and you will be able to cancel your subscription prior to such charge. The Subscription Service will continue unless and until you cancel your subscription, or we terminate it.
You must cancel your subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your account. We will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information). You may cancel the Subscription Service by logging into the web application, clicking on Settings, then My Account , then Manage Subscription and then Cancel plan, or by contacting us at [email protected].
When a subscription is cancelled you will not receive a prorated refund, but you will continue to have access to the Subscription Service until the end of the term during which you cancelled the subscription. If you cancel your subscription, you will still be obligated to pay any additional charges incurred by you in the course of using the Subscription Service prior to the date of cancellation.
If you are subscribed to the Subscription Service, we will provide you with reasonable notice of changes to the fees for the ensuing period in advance of their effective date and you will be able to cancel your subscription prior to such charge.
4.5 Service Suspension or Termination Upon Non-Payment. Thrive365 may suspend or terminate access to the Service for any account for which any amount is due but unpaid.
5. Licenses and Related Terms
5.1 Limited License and Grant of Access. Subject to your complete and ongoing compliance with these Terms, Thrive365 grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use the Service.
5.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
5.3 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Thrive365 an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
6. Ownership; Proprietary Rights. The Service is owned and operated by Thrive365. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Thrive365 are protected by intellectual property and other laws. All Materials included in the Service are the property of Thrive365 or its third-party licensors. Except as expressly authorized by Thrive365, you may not make use of the Materials. Thrive365 reserves all rights to the Materials not granted expressly in these Terms.
7. Third-Party Terms
7.1 Third-Party Services and Linked Websites. Thrive365 may provide tools through the Service that enable you to export information, including User Content (defined below), to third-party services, which may include features that allow you to link your account on Thrive365 with an account on the third-party service, such as Twitter or Facebook, or through our implementation of third-party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that Thrive365 may transfer that information to the applicable third-party service. Third-party services are not under Thrive365’s control, and, to the fullest extent permitted by law, Thrive365 is not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under Thrive365’s control, and Thrive365 is not responsible for their content.
7.2 Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
8. User Content
8.1 User Content Generally. Certain features of the Service may permit users to upload, post, or otherwise provide content to the Service, including messages, reviews, photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
8.2 Limited License Grant to Thrive365. By providing User Content to or via the Service, you grant Thrive365 a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
8.3 Limited License Grant to Other Users. By providing User Content to or via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
8.4 Specific Rules for Photographs and Images. If you provide a photograph or image to the Service that includes one or more persons, you hereby grant such persons and their administrators, guardians, heirs, and trustees, if any, an irrevocable, perpetual, royalty free, fully paid-up, worldwide license to reproduce, distribute, and publicly display that photograph for personal use and through any online platform or service, including the Service, Facebook, Instagram, and Twitter, but not to promote any third-party product, good or service. The license contained in this Section does not permit the subject of any photo or their administrators, guardians, heirs, or trustees to sell that image or photograph, whether on a standalone basis or as embodied in any product.
8.5 You Must Have Rights to the Content You Post. You must not provide any User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of the User Content you intend to Post. In addition, if you only own the rights in and to a sound recording, but not to the underlying musical works embodied in such sound recordings, then you must not Post such sound recordings unless you have all necessary rights, authorizations and permissions with respect to such embedded musical works that grant you sufficient rights to grant the licenses to Thrive365 under these Terms. You represent and warrant that: (a) you own the User Content Posted by you or otherwise have all rights necessary to grant the license set forth in these Terms; (b) the posting and use of your User Content does not violate the privacy rights, publicity rights, copyrights, trademark rights, patent rights, trade secret rights, contract rights, or any other rights of any party, including, but not limited to, the rights of any person visible in any of your User Content; (c) the posting of your User Content will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and (d) the posting of your User Content does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person resulting from posting your User Content, including from Thrive365’s exercise of the license set forth in Section 8.2.
8.6 User Content Representations and Warranties. Thrive365 disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant to us that:
a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Thrive365 and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Thrive365, the Service, and these Terms;
b. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Thrive365 to violate any law or regulation; and
c. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
8.7 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish and will not be in any way responsible or liable for User Content. Thrive365 may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that, when using the Service, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Thrive365 with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Thrive365 does not permit copyright-infringing activities on the Service.
8.8 Monitoring Content. Thrive365 does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Service by its users. You acknowledge and agree that Thrive365 reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time Thrive365 chooses to monitor the content, Thrive365 still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy (defined below).
9. Communications
9.1 Text Messaging. Thrive365 and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Service, as well as marketing messages. Text messages may be sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF ALL MESSAGES FROM Thrive365, YOU CAN EMAIL [email protected] OR TEXT THE WORD STOP FROM THE MOBILE DEVICE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may continue to receive text messages for a short period while we process your request, including messages confirming the receipt of your opt-out request.
9.2 Push Notifications. When you use our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your device. You can turn off notifications by visiting your device’s “settings” page.
9.3 Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
10. Prohibited Conduct. BY USING THE SERVICE, YOU AGREE NOT TO:
a. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
b. harass, threaten, demean, embarrass, bully, or otherwise harm any other user of the Service;
c. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
d. you must not attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools and the like) other than the software or search agents provided by Thrive365 or other generally available third-party web browsers;
e. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
f. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
g. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
h. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
i. attempt to do any of the acts described in this Section 10 or assist or permit any person in engaging in any of the acts described in this Section 10.
11. Copyright and Intellectual Property Protection
11.1 Respect of Third-Party Rights. Thrive365 respects the intellectual property of others and takes the protection of intellectual property very seriously, and Thrive365 asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Service.
11.2 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
Thrive365, LLC
Attn: Legal Department (Copyright Notification)
9520 Ormsby Station Road, Suite 20
Louisville, KY 40223
(502)289-8020
Email: [email protected]
11.3 Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” to the Designated Agent identified above containing the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyrighted work or other intellectual property that you claim has been infringed;
c. a description of the material that you claim is infringing and where it is located on the Service;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright or intellectual property owner, its agent, or the law; and
f. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
11.4 Your Notification of Claimed Infringement may be shared by Thrive365 with the user alleged to have infringed a right you own or control, and you consent to Thrive365 making such disclosure. You should consult with your own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
11.5 Repeat Infringers. Thrive365’s intellectual property policy is to: (a) remove or disable access to material that Thrive365 believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service; and (b) remove any User Content uploaded to the Service by “repeat infringers.” Thrive365 will promptly terminate the accounts of users that are determined by Thrive365 to be repeat infringers. Thrive365 has discretion to terminate the account of any user after receipt of a single notification of claimed infringement or upon Thrive365’s own determination.
11.6 Counter Notification. If you receive a notification from Thrive365 that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Thrive365 with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Thrive365’s Designated Agent through one of the methods identified in Section 11.2 and include substantially the following information:
a. your physical or electronic signature;
b. identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
c. a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
d. your name, address and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are residing outside of the United States, then for any judicial district in which Thrive365 may be found, and that you will accept service of process from the person who provided notification under Section 11.2 above or an agent of such person.
11.7 A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
11.8 Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Thrive365 in response to a Notification of Claimed Infringement, then Thrive365 will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Thrive365 will replace the removed User Content or cease disabling access to it in 10 business days, and Thrive365 will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Thrive365’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material on Thrive365’s system or network.
11.9 False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny person who knowingly materially misrepresents under Section 512 of the Copyright Act (17 U.S.C. § 512) (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of Thrive365 relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” Thrive365 reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
12. Modification of Terms. We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will, unless otherwise stated, be effective 30 days after posting or notice to you of the revisions. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. If you do not agree to the modified terms, you should discontinue your use of the Service. Except as expressly permitted in this Section 12, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
13. Term, Termination, and Modification of the Service
13.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 13.2.
13.2 Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Thrive365 may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by clicking on your profile and using the “cancel subscription” (or similar) link on the page or by contacting customer service at [email protected].
13.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Thrive365 any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.3, 6, 8, 13.3, 14, 15, 16, 17and 18 will survive.
13.4 Modification of the Service. Thrive365 reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Thrive365 will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
14. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Thrive365, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Thrive365 Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
15. Disclaimers; No Warranties
15.1 THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. THRIVE365 DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THRIVE365 DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND THRIVE365 DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
15.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR THRIVE365 ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE THRIVE365 ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
15.3 THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION 15 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Thrive365 does not disclaim any warranty or other right that Thrive365 is prohibited from disclaiming under applicable law.
16. Limitation of Liability
16.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE THRIVE365 ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY THRIVE365 ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
16.2 EXCEPT AS PROVIDED IN SECTION 17.6 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE THRIVE365 ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO THRIVE365 FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US$100.
16.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
17. Dispute Resolution and Arbitration
17.1 Generally. In the interest of resolving disputes between you and Thrive365 in the most expedient and cost effective manner, and except as described in Section 17.2 and 17.4, you and Thrive365 agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND THRIVE365 ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
17.2 Exceptions. Despite the provisions of Section 17.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
17.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 17 within 30 days after the date that you agree to these Terms by sending a certified letter, return receipt requested, to Thrive365, LLC, Attention: Legal Department – Arbitration Opt-Out, 9520 Ormsby Station Road, Suite 20, Louisville, KY 40223 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Thrive365 receives your Opt-Out Notice, this Section 17 will be void and any action arising out of these Terms will be resolved as set forth in Section 18.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
17.4 Arbitrator. Any arbitration between you and Thrive365 will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting Thrive365. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
17.5 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail, return receipt requested, or by Federal Express or other national carrier (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Thrive365’s address for Notice is: Thrive365, LLC, Attention: Legal Department – Arbitration, 9520 Ormsby Station Road, Suite 20, Louisville, KY 40223. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Thrive365 may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Thrive365 must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Thrive365 in settlement of the dispute prior to the award, Thrive365 will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000.
17.6 Fees. If you commence arbitration in accordance with these Terms, Thrive365 will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Jefferson County, Commonwealth of Kentucky, but if the claim is for US$10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Thrive365 for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
17.7 No Class Actions. YOU AND THRIVE365 AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Thrive365 agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
17.8 Modifications to this Arbitration Provision. If Thrive365 makes any future change to this arbitration provision, other than a change to Thrive365’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Thrive365’s address for Notice of Arbitration, in which case your account with Thrive365 will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
17.9 Enforceability. If Section 17.7 or the entirety of this Section 17 is found to be unenforceable, or if Thrive365 receives an Opt-Out Notice from you, then the entirety of this Section 17 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 18.2 will govern any action arising out of or related to these Terms.
18. Miscellaneous
18.1 General Terms. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Thrive365 regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
18.2 Governing Law. These Terms are governed by the laws of the Commonwealth of Kentucky without regard to conflict of law principles that would result in the application of the laws of another jurisdiction. You and Thrive365 submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Jefferson County, Commonwealth of Kentucky for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in the Commonwealth of Kentucky, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
18.3 Privacy Policy. Please read the Thrive365 PRIVACY POLICY (the “Privacy Policy”) carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Thrive365 Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
18.4 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
18.5 Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
18.6 Contact Information. The Service is offered by Thrive365, LLC, located at 9520 Ormsby Station Road, Suite 20, Louisville, KY 40223. You may contact us by sending correspondence to that address or by emailing us at [email protected].
18.7 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
18.8 No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
18.9 International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
19. Notice Regarding Apple. This Section 19 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Thrive365 only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price (if any) for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
* * * * *