DIET TYPING SYSTEMS, LLC
TERMS AND CONDITIONS AGREEMENT
Effective Date: March 7, 2022.
THESE TERMS AND CONDITIONS MAY BE UPDATED AT ANY TIME IN DTS’S SOLE DISCRETION. YOUR CONTINUED USE OF THE APPLCIATIONS OR SEVICES AFTER SUCH CHANGES SHALL CONSTITUTE YOUR ACCEPTANCE OF THE CHANGES.
IF YOU ARE AN INDIVIDUAL REPRESENTING AN ENTITY, YOU ACKNOWLEDGE THAT YOU HAVE THE APPROPRIATE AUTHORITY TO ACCEPT THIS AGREEMENT ON BEHALF OF SUCH ENTITY. YOU MAY NOT USE THE LICENSED MATERIAL AND MAY NOT ACCEPT THIS AGREEMENT IF YOU ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH DTS, OR YOU ARE BARRED FROM USING OR RECEIVING THE LICENSED MATERIAL UNDER APPLICABLE LAW.
a. Affiliate: An individual or entity who arranges for their client(s) to utilize the DTS System for a fee.
b. Specialist: An Affiliate who has completed the DTS System Education Program.
c. User: An individual who participates in and uses the DTS System, Applications, or Services.
d. DTS System: The online diet typing application owned and operated by DTS.
e. DTS Reports: The aggregate, written output from the DTS System in response to a User’s use of the DTS System.
f. DTS System Education Program: A curriculum designed and presented by DTS intended to inform and train individuals or entities on the proper use, interpretation, and application of the DTS System. Upon completion of the DTS System Education Program, an Affiliate becomes a Specialist.
g. Services: Intangible products, duties, uses, or labors offered through Our Applications specifically including, but not limited to, the DTS System.
h. Content: Services, Trademarks, Users’ information, Affiliates’ information, Specialists’ information, the DTS System, and any other data and/or information made available through the Applications or by any other means authorized by DTS, and any copies and derivative works thereof. Content expressly includes any data relating to the Reservations and Services.
i. Licensed Materials: Services and Content, collectively.
j. Passcodes: A unique sequence of numbers, letters, and/or symbols used to access and utilize the DTS System.
II. General Use
By using Our Applications and/or utilizing and Services, including the DTS System, You hereby warrant and represent that You are at least 18 years of age and that if You are acting on behalf of an entity or other third party that You have the authorization to do so. If you are not 18, you must have the permission of an adult parent or guardian to use Our Applications and Services who can legally agree to this Agreement on Your behalf and who will be responsible for your use of our Applications and Services.
Further, by using Our Applications and/or utilizing any Services, including the DTS System, You consent to receive electronic communications from DTS. These electronic communications may be notices about applicable fees and charges, transactional or other information concerning or related to your use of the Applications and/or Services, or for promotional purposes.
III. Restrictions on Use of Applications and Services
You will not or attempt to:
a.Reverse engineer, decompile, disassemble or translate the Applications and Services or other DTS property, or otherwise attempt to derive the source code, trade secrets or know-how in or underlying the Applications and Services or other DTS property, or any portion thereof;
b. Interfere with, modify, disrupt or disable features or functionality of the Applications and Services or other DTS property, including, without limitation, any such mechanism used to restrict or control the functionality, or defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection or monitoring mechanisms of the Applications and Services or other DTS property, unless otherwise authorized by this Agreement or in writing by DTS;
c. Sell, rent, lease, sublicense, distribute, redistribute, syndicate, create derivative works of, assign or otherwise transfer or provide access to, in whole or in part, the Applications and Services or other DTS property to any third party except as expressly permitted herein.
d. Permit other individuals or entities to create links to the Applications and Services or other DTS property on any other server, or wireless or Internet-based device, or otherwise make available to a third party, any token, key, password or other login credentials to the Applications and Services or other DTS property, except as expressly authorized; or
e. Use the Applications and Services or other DTS property for any illegal, unauthorized, or other improper purposes.
f. Use any information or data resulting from a User’s use of the DTS system for any illegal, unauthorized, or other improper purposes.
IV. Passcodes and Fees
Each use of the DTS System requires the purchase of single use, unique Passcode. Passcodes are available as follows:
a. Direct Purchase by Users: Users may only Purchase Passcodes where they have been directed to do so by an Affiliate or Specialist.
b. Purchase by Users Sent By Affiliates or Specialists: Users will be given instructions on how to purchase a Passcode by an Affiliate or Specialist.
c. Purchases by Affiliates or Specialists: These purchases are subject to the terms and conditions of the License and Use Agreement applicable to each Affiliate or Specialist.
d. Method: Payments are made through a third-party payment processor and are subject to convenience fees.
V. Cancellations and Refunds
DTS does not offer refunds on any amounts paid for Services or other Content; all payments are final and non-refundable.
VI. DTS System Customization
Certain aspects of the DTS System may be customized (“System Customizations”) by Affiliates or Specialists based on their needs and as per their respective License and Use Agreement.
VII. Representations By Affiliates and Specialists
If You are an Affiliate or Specialist, you expressly warrant and acknowledge:
a. You have express, written permission from any User to access, interpret, and use any data or information the User provides through the DTS System, including any DTS Reports.
b. If You are an individual, that You are at least 18 years old.
c. You will not make any warranties, claims, or other representations regarding the Services or Applications, including the DTS System, to any third parties, including any Users.
d. You will take reasonable commercial measures to protect all passcodes, login information, and User information and data You receive via the DTS System or our Applications.
e. You will not discriminate or make decisions related to Users based on a User’s race, gender, sexual orientation, religion, age, or any other category protected by local, state, or federal law;
f. You understand all amounts collected or received by You pursuant to this Agreement are inclusive of all taxes You are liable for and that You are solely responsible for paying any and all applicable local, state, or federal taxes.
VIII. Representations By Users
By accessing and using the DTS System, Our Applications, and/or Services, all Users represent and warrant that:
a. All data and information provided by the User is true and accurate;
b. You are of at least 18 years old;
c. You will not use another person or entities information while engaging with the DTS System, Our Applications, or Our Services without their written permission;
d. You understand that DTS has no obligation to store User information for any period of time.
IX. Removal of Users
DTS has the right to permanently or temporarily, fully or in part, ban any User for any reason at all, though DTS does not discriminate or make decisions on the basis of a User’s race, gender, sexual orientation, religion, age, or any other category protected by local, state, or federal law.
X. Ownership and Feedback
a. Ownership. The Licensed Materials are licensed, not sold, and DTS retains and reserves all rights not expressly granted in this Agreement. You expressly acknowledge that DTS, its licensors and its end users retain all worldwide rights, title and interest in and to the Licensed Material and Content, including all rights in patents, trademarks, trade names, copyrights, trade secrets, know-how, data (including all applications therefor), and all proprietary rights under the laws of the United States, any other jurisdiction or any treaty (“IP Rights”). You agree not to do anything inconsistent with such ownership, including without limitation, challenging DTS’s ownership of the DTS Marks, challenging the validity of the licenses granted herein, or otherwise copying or exploiting the DTS Marks during or after the termination of this Agreement, except as specifically authorized herein. If You acquire any rights in the DTS Marks or any confusingly similar marks, by operation of law or otherwise, You will, at no expense to DTS, immediately assign such rights to DTS.
b. Feedback. You may provide DTS with comments concerning the Licensed Material, Services, or any other item contemplated by this Agreement, or Your evaluation and use thereof (collectively, “Feedback”). You hereby grant DTS all rights, title and ownership of such Feedback (including all intellectual property rights therein), and DTS may use the Feedback for any and all commercial and non-commercial purposes with no obligation of any kind to You. Such feedback shall be treated as both non-confidential and non-proprietary and your provision of Feedback shall impose no obligation on the Company.
XI. Other Important Terms
a. User Protection. You will not knowingly: 1) allow or assist any government entities, law enforcement, or other organizations to conduct surveillance on Licensed Materials or other Company property or Content or any other information that would require a subpoena, court order, or other valid legal process, or that would otherwise have the potential to be inconsistent with users’ reasonable expectations of privacy; and 2) display, distribute or otherwise make available Content to any person or entity that You reasonably believe will use such data to violate the Universal Declaration of Human Rights (located at http://www.un.org/en/documents/udhr/), including without limitation Articles 12, 18, or 19.
b. Updates. You acknowledge and understand that the Applications will need to be updated from time to time and that Your failure to permit any updates could prevent the Applications from functioning. You further acknowledge that this Agreement applies to any updated Applications.
c. Network. You understand that for the Applications to function on a mobile device, cellular or data network is required for them to function. You are solely responsible for ensuring that your hardware and software are able to operate the Applications and that your network is functioning. Likewise, You understand that you may receive data or other charges from your carrier related to the use of the Applications and agree that You are solely responsible for any such charges.
d. Government Use. The Licensed Materials and other Company property are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Any use, modification, derivative, reproduction, release, performance, display, disclosure or distribution of the Licensed Materials or other Company property by any government entity is prohibited, except as expressly permitted by the terms of this Agreement. Additionally, any use by U.S. government entities must be in accordance with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4. If You use the Licensed Materials or other Company property in Your official capacity as an employee or representative of a U.S., state or local government entity and You are legally unable to accept the indemnity, jurisdiction, venue or other clauses herein, then those clauses do not apply to such entity, but only to the extent as required by applicable law. For the purpose of this provision, contractor/manufacturer is DTS Corp.
e. Warranty Disclaimer. THE APPLICATIONS, DTS SYSTEM, AND SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND THE ENTIRE RISK TO THE QUALITY AND PERFORMANCE OF THE APPLICATIONS, DTS SYSTEM, AND SERVICES IS WITH YOU. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THE APPLICATIONS, DTS SYSTEM, AND SERVICES, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. WE FURTHER MAKE NO WARRANTY THAT THE APPLICATIONS, DTS SYSTEM, AND SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THIS WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE OR THAT DEFECTS IN THE APPLICATIONS, DTS SYSTEM, AND SERVICES WILL BE CORRECTED. WE MAKE NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APPLICATIONS, DTS SYSTEM, AND SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE APPLICATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE APPLICATIONS, DTS SYSTEM, AND SERVICES OR FROM DTS SHALL CREATE ANY WARRANTY. WE DISCLAIM ALL EQUITABLE INDEMNITIES.
f. Indemnification. You shall defend DTS against any and all actions, demands, claims and suits (including without limitation product liability and malpractice claims), and indemnify and hold DTS harmless from any and all liabilities, damages and costs (including without limitation reasonable attorneys’ fees) to the extent arising out of Your use of the Licensed Materials, DTS System, or any other Content in any manner. In the event DTS seeks indemnification or defense from You under this provision, DTS will promptly notify You in writing of the claim(s) brought against DTS for which it seeks indemnification or defense. DTS reserves the right, at its option and sole discretion, to assume full control of the defense of claims with legal counsel of its choice. You may not enter into any third-party agreement, which would, in any manner whatsoever, affect the rights of DTS, constitute an admission of fault by DTS or bind DTS in any manner, without the prior written consent of DTS. In the event DTS assumes control of the defense of such claim, DTS shall not settle any such claim requiring payment from You without Your prior written approval.
g. Limitation of Liability. IN NO EVENT WILL DTS BE LIABLE TO YOU OR ANY OTHER USERS FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF OR DAMAGE TO USE, DATA, BUSINESS, GOODWILL OR PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS FROM THIS WEBSITE OR RESULTING FROM YOUR USE OF SUCH MATERIALS. IN ANY CASE, DTS’ AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS YOU ACTUALLY PAID PURSUANT TO THIS AGREEMENT. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
h. Health Disclaimer/Not Medical Advice. DTS makes no warranties as to the accuracy of our theories or the validity of our recommendations, nutritional or otherwise, since they have not been scientifically confirmed by the FDA. We provide information based on our years of experience and positive results that were observed in our clients. Certain persons considered experts may disagree with one or more of our concepts or recommendations and as such, we recommend that you speak with your trusted medical and health professionals before making any decisions that take into account any output, data, or other information from the DTS System, Services, or Applications. We assume no responsibility for the correct or incorrect use of our information. The information we provide and the recommendations that we make should not be used to, nor are they intended to, nor do they in fact diagnose, treat, cure or mitigate any specific health problem. If laboratory tests are recommended to Users, it is the Users’ responsibility to deliver all laboratory test results, now and in the future, to the Users’ personal physician for any medical interpretation. Any interpretation of laboratory tests results that are made by DTS are to be construed as nutritional interpretations only. They are not diagnostic, therapeutic or prognostic in nature. DTS, our lab partners, independent representatives, associates and affiliates assume no liability for any failure to identify any disease or medical condition. Laboratory tests and questioning are used only for the purpose of guiding us to the right type and volume of nutritional information to provide to the client based on the client’s profile.
i. Force Majeure. DTS will not be deemed in breach hereunder for any cessation, interruption, cancellation, or delay in the performance of its obligations under this Agreement due to causes beyond its reasonable control, including earthquake, flood, or other natural disaster, epidemic, pandemic, act of God, labor controversy, civil disturbance, government orders and rules, terrorism, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment, or decree.
j. Not HIPAA Compliant. The Applications, Services, and DTS System are NOT compliant with the US Health Insurance Portability and Accountability Act (“HIPAA”) or any related law, rule, or regulation.
k. Miscellaneous. This Agreement constitutes the entire agreement among the parties with respect to the subject matter and supersedes and merges all prior proposals, understandings and contemporaneous communications. Any attempted assignment in violation of this paragraph is null and void, and DTS may terminate this Agreement. This Agreement does not create or imply any partnership, agency or joint venture. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflicts of law rules or principles. All claims arising out of or relating to this Agreement will be brought exclusively in the federal or state courts of Santa Barbara County, California, USA, and You consent to personal jurisdiction in those courts. ANY PROCEEDINGS, INCLUDING ANY LITIGATION, BROUGHT TO RESOLVE ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AGAINST DTS SHALL BE BROUGHT AND CONDUCTED ON AN INDIVIDUAL BASIS ONLY. YOU WAIVE THE RIGHT TO ASSERT OR PARTICIAPTE IN ANY CLAIMS AGAINST DTS AS A REPRESENATIVE, MEMBER, OR OTHERWISE IN ANY CLASS OR REPRESENTATIVE ACTION AND NO INDIVIDUAL ACTIONS SHALL BE COMBINED OR CONSOLIDATED FOR ANY REASON. You further agree to reimburse DTS for any costs and fees, including reasonable attorney’s fees, it expends in enforcing the terms of this agreement. Despite the foregoing, You agree that money damages would be an inadequate remedy for DTS in the event of a breach or threatened breach of a provision of this Agreement protecting DTS’s intellectual property or Confidential Information, and that in the event of such a breach or threat, DTS, in addition to any other remedies to which it is entitled, is entitled to such preliminary or injunctive relief (including an order prohibiting Company from taking actions in breach of such provisions), without the need for posting bond, and specific performance as may be appropriate. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated. No waiver by DTS of any covenant or right under this Agreement will be effective unless memorialized in a writing duly authorized by DTS. If any part of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
l. Incorporated Terms. Your use of the Licensed Material, the Applications, DTS System and Our Services is further subject to and governed by the following terms and conditions:
ii. Where applicable, an additional License and Use Agreement.