Terms of Use

Last Updated: June 13, 2010

Welcome to www.diettv.com (the "Website") operated by DietTV Inc., a Delaware corporation with an address at 25 Wade St. Brighton MA 02135 ("DietTV", "we", "our", "us"). The Website enables anonymous visitors to the Website ("Visitors") to browse the Website and make use of certain of its functionality, and Visitors who affirmatively indicate their agreement to abide by these Terms of Use (the "Agreement") by means of a click-through consent where this option is made available by DietTV ("Registrants") to use additional functionality of the Website. The terms "you", "your" and "yours" when used herein refer to either Registrants or Visitors or to both Registrants and Visitors collectively, as applicable. The Agreement sets forth the terms and conditions which govern your use of the Website, and you hereby acknowledge that you have read the Agreement and agree to all of its terms and conditions.

The Website enables Visitors to browse summaries of various 3rd party diet plans, and enables Registrants to make use of various functionality, such as accessing meal plans and recipes which we believe conform to the parameters of a certain diet plan, tracking one's intake (calorie, fat, etc.) against the parameters of a certain diet plan, and determining which foods and/or restaurants items one can eat in accordance with the parameters of a certain diet plan.

DietTV is proud to recommend popular grocery and restaurant items to incorporate into the diet plans featured on the Website. To the extent that the Website presents statements, suggestions, or recommendations regarding the compatibility or fit of food products, restaurant services or exercise programs (if applicable) in connection with the featured diet plans, and vice versa, such statements, suggestions and recommendations, other than those provided in connection with Submitted Content (as hereinafter defined) are based solely on DietTV's interpretation and understanding of the mentioned diet plans. Except where otherwise noted, DietTV is solely responsible for all other Content (as hereinafter defined) featured on the Website, including but not limited to Diet Details and Rankings.

 

1. The Agreement.

1.1 Acceptance. Please read the Agreement carefully before accessing the Website. In order to use the Website, you must first agree to the Agreement. By accessing the Website, Visitors indicate that they have read and agree to be bound by the terms and conditions set forth in the Agreement. Registrants indicate such agreement by means of click-through consent. If you do not agree to be bound by the Agreement, you are not authorized to use the Website. Furthermore, you are not authorized to use the Website if (i) you are not of legal age or otherwise do not have the legal capacity to form a binding contract with DietTV, or (ii) you are a person barred from using the Website under the laws of the country in which you are resident or from which you are attempting to access the Website.

1.2 Modification. We reserve the right to modify the Agreement at any time. You agree to review the Agreement periodically to be aware of such modifications. You further agree that your continued use of the Website shall be deemed to be your conclusive acceptance of any modified version of the Agreement. We will indicate that changes to the Agreement have been made by updating the date indicated after "Last Updated" at the beginning of the Agreement. If you do not agree to abide by the initial or any modified version of the Agreement, then you are not authorized to use the Website. A current version of the Agreement is accessible via the footer of the Website's homepage.

 

2. Registration.

2.1 Registrant Profile; Password. You will only be able to use certain functionality of the Website if you register with us. If you decide to register with us, you will receive a user ID and password ("Profile") to access your registration account ("Account"). You shall not allow any third party to use your Profile to access any of the Website and to safeguard the information that would allow another person or entity to access the Website by using your Profile. You are responsible for your failure to safeguard such information and/or to allow any other person or entity to access or use the Website by using your Profile. You may not sell or otherwise transfer any part of a Profile or Account. You shall notify DietTV immediately of any unauthorized use of your Profile, Account or any portion of the Website. DietTV shall not be liable for any loss that results from the unauthorized use of your Profile or Account, either with or without your knowledge.

2.2 Accurate Information. You shall provide us with accurate, complete and current information during registration, and to update information provided to us if and as soon as such information should change.

2.3 Disabling or Revocation of Account. We have the right to cancel your registration for any reason at any time, in our sole discretion. If we disable access to your Account, you may be prevented from accessing the Website, your Account details and/or any files or other various materials, including without limitation all texts, comments, icons, images, message, tags, links, photographs, audio, video and other content appearing on the Website (collectively, "Content") which are contained in or accessible through your Account.

2.4 Charges; Storage. At any time in our sole discretion we may decide to increase our fees for certain of the services available through the Website and we may impose certain space requirements regarding storage of Content.

2.5 Cessation of Services. The form and nature of the services or products offered through the Website may change from time to time without prior notice to you. As part of our continuing innovation, DietTV may stop (permanently or temporarily) providing certain Website features to you in DietTV's sole discretion, without prior notice to you.

 

3. Commercial Transactions.

3.1 Fees; Cancellations. Subscribers shall pay DietTV the monthly subscription fee set forth on the registration page (http://www.diettv.com/register.php) per month (the "Fees"). The Fees shall be due and payable each month in full in advance by you. You may cancel your subscription with DietTV at any time, but any Fees already paid by you in the month in which you cancel are non-refundable.

3.2 Processing Fees; Information. In order to process the Fees paid by you, you will be asked by DietTV or an authorized third party on our behalf to supply certain payment information to us, including without limitation, your full name, address and applicable credit card information. You shall provide us or such third party with accurate, complete and current information at all times, and to comply with the terms and conditions of this Agreement and any ancillary agreement by such third party that you may enter into which governs the payment of Fees. DietTV and/or such third party may store and use your payment information (including credit card information) for processing payments.

3.3 All Charges Final. All charges authorized by your Account are final, as are all sales made through the Website. Your right to use the Services is conditional on our receipt of the applicable Fees. If any such payment cannot be charged to your credit card or if a charge is refunded for any reason, including chargeback, we reserve the right to suspend or terminate your Account, which may include the deletion of any Content accessible by your Account or posted by you to the Website. You shall be fully responsible for all charges made under your Account.

3.4 Refunds. Notwithstanding any contrary terms and conditions of this Section 3, in the event that a DietTV or an authorized third party acting on our behalf charges you Fees in error, DietTV shall refund (as a credit to your credit card) such mistakenly charged Fees upon either (i) receipt of written notice by you regarding such mistake and its independent verification by DietTV, or (ii) DietTV independently learning of and verifying such mistake. The refund provided by DietTV under this Section 3.4 shall be your sole remedy for any mistaken charge(s) of Fees.

3.5 Taxes. You shall be responsible for paying all applicable taxes arising out of your payment of the Fees or any other purchase made by you under your Account through the Website.

 

4. Submitted Content; Review of Submitted Content; Usage Restrictions.

4.1 Submitted Content. DietTV offers Registrants the opportunity to post certain Content to the Website in connection with certain interactive Website features ("Submitted Content"). You acknowledge and agree that (i) DietTV has no obligation to use or respond to any Submitted Content; (ii) the provision of Submitted Content by you in no way imposes any other obligation on DietTV, whether of confidentiality, attribution, or otherwise, and DietTV shall not be liable for any use or disclosure of any Submitted Content; (iii) all Submitted Content submitted by you shall be accurate and shall not violate the copyright, trademark, patent, trade secret, right of publicity or any other intellectual property or other right of any third party; (iv) you will not post any Submitted Content to the Website which contains Trademarks (as hereinafter defined) or other third party materials, (v) you hereby waive any and all claims (including, without limitation, claims based upon invasion of privacy, defamation, false light, or right of publicity) arising out of any alteration, distortion or other use of your name, image or likeness or that of any third party which is included in any Submitted Content (including without limitation your photograph or the photograph of a third party), (vi) you will not post any Submitted Content to the Website that was previously published or which is otherwise unoriginal and you shall pay for all royalties, fees and any other monies owing any person by reason of any Submitted Content that you post to the Website, (vii) Submitted Content may be subject to size and usage limitations, and you are responsible for adhering to such limitations, and (viii) all Submitted Content shall comply with the provisions of Section 4.4 hereof specifically and all other applicable sections of this Agreement. Without limiting any other provisions of the Agreement, if any of your Submitted Content includes the name, image or likeness of any person, you represent and warrant that you have the exclusive and irrevocable right to exploit, and to permit others to exploit, the name, image and likeness of such person, and to use any photograph and/or other image of such person, however reproduced or depicted, in your sole discretion, and free and clear of any obligation of compensation to you or anyone else, and you hereby transfer all such rights to DietTV.

4.2 Quality and Review of Submitted Content. DietTV does not and shall not have any obligation to review Submitted Content, and therefore we do not guarantee the accuracy, integrity or quality of any Submitted Content and we cannot assure that harmful, inaccurate, deceptive, offensive, threatening, defamatory, unlawful or otherwise objectionable Submitted Content will not appear on the Website. Notwithstanding the foregoing or anything to the contrary herein, DietTV has the absolute right (but not the obligation) to pre-screen, review, flag, filter and monitor all Submitted Content in our sole discretion, and that DietTV reserves the right to alter, edit, refuse to post or remove any Submitted Content, in whole or in part, for any reason or for no reason, and to disclose such materials and the circumstances surrounding their transmission to any third party in order to satisfy any applicable law, regulation, legal process or governmental request and to protect ourselves, Registrants, Visitors or service providers, all in our sole discretion.

4.3 Reporting Violations. You shall immediately notify DietTV in writing of any Submitted Content or other Content that you view through the Website which you deem to be offensive, inappropriate or otherwise a violation of the Agreement.

4.4 Usage Restrictions. You shall not (and you shall not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, translate, adapt or decompile (or attempt to translate, adapt or decompile) or otherwise attempt to extract any software underlying any of the Website.

You shall not use the Website in any manner that:

(a) is designed to interrupt, or destroys or limits the functionality of, any computer software or hardware or telecommunications equipment;

(b) interferes with or disrupts the Website, websites connected to the Website, or otherwise interferes with operations or services of the Website in any way;

(c) infringes any copyright, trademark, trade secret, patent or other right of any party (including the promoting of an illegal or unauthorized copy of another person's copyrighted work), or defames or invades the publicity rights or the privacy of any person, living or deceased (or impersonates any such person);

(d) is false, misleading, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, as determined by DietTV in our sole discretion;

(e) causes us to lose (in whole or part) the services of our internet service providers or other suppliers;

(f) consists of any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation; causes us to lose (in whole or part) the services of our internet service providers or other suppliers;

(g) links to materials or other content, directly or indirectly, to which you do not have a right to link;

(h) violates, or encourages others to violate, the Agreement, or violates or encourages others to violate any applicable local, state, national, or international law; or

(i) causes us to lose (in whole or part) the services of our internet service providers or other suppliers.

4.5 Grant of License to Submitted Content. By submitting Submitted Content to us, you automatically grant, and represent and warrant that you have the right to grant to DietTV, a non-exclusive, perpetual, irrevocable, sub-licensable (through multiple tiers), assignable, fully-paid, royalty free, and worldwide license to use, copy, modify, adapt, publish, make, sell, publicly display, create derivative works of or incorporate into other works such Submitted Content, derive revenue or other remuneration from, communicate to the public, distribute (through multiple tiers), perform or display such Submitted Content (in whole or in part) and/or to create derivative works of or incorporate such Submitted Content in other works in any form, media, or technology now known or later developed, and to grant and authorize sublicenses of the foregoing through multiple tiers of sub-licensees, including the right to exercise the copyright, publicity, and any other rights over any of the materials contained in such Submitted Content for any purpose, including for purposes of advertising and publicity on the Website and elsewhere. DietTV shall not be limited in any way in its use, commercial or otherwise, of any such Submitted Content, and you hereby waive any moral rights in, or approval rights to, such Submitted Content. Further, we reserve the express right to incorporate any Submitted Content posted to the Website or otherwise conveyed by any Registrant to DietTV into any further work, in any medium now or hereafter known, without prior consent or review, and without attribution or payment of any royalty or fee whatsoever.

 

5. Intellectual Property.

5.1 Proprietary Rights. The Website contains various Content which is protected by the copyright, trademark and other laws of the United States and/or other jurisdictions. Other than for Submitted Content and third party Trademarks and/or other intellectual property appearing on the Website, as between you and DietTV, all right, title and interest (including without limitation all copyright, trademark, patent, trade secret and other intellectual property rights) in and to Website (including without limitation all Content appearing therein) belongs to DietTV, and that you have no rights in and to the Website other than as expressly set forth in the Agreement. Furthermore, except for that information which is in the public domain or for which you have been given express written permission by DietTV, no Content may be sold, copied, reproduced, republished, uploaded, displayed, posted, transmitted, distributed, modified, publicly performed, used in any derivative works based thereon or otherwise used for any public or commercial purpose without the prior written consent of DietTV or, where applicable, our licensors. However, you may print copies of materials on the Website for your personal, noncommercial use only, provided that you must keep intact all copyright, Trademark, and other proprietary notices appearing therein and that you use such materials in the manner permitted by the Agreement, but not in any manner which competes with DietTV.

5.2 Copyright Agent. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that your work has been copied and posted on the Website in a way that constitutes copyright infringement, please provide our copyright agent with the following information: an electronic or physical signature of the copyright owner or 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 e-mail 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. Any notification by a copyright owner or a person authorized to act on its behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon DietTV actual knowledge of facts or circumstances from which infringing material or acts are evident. DietTV's copyright agent for notice of claims of copyright infringement can be reached as follows:

Name: DietTV - Attn: Copyright Agent

Address: 25 Wade St. Brighton MA 02135

Email: info@diettv.com

We suggest that you consult your legal advisor before filing a notice with DietTV's copyright agent. You should note that there can be penalties for false claims under the DMCA. DietTV will, in appropriate circumstances and to the extent plausible, terminate the right of Visitors or Registrants who infringe the rights of copyright holders to interact with certain portions of the Website.

5.3 Trademarks. "DietTV" and the "diet tv" logo are Trademarks of DietTV. All diet plan, restaurant, and food product Trademarks mentioned on the Website are the property of their respective owners. DietTV is not affiliated with, or sponsored or endorsed by, any of the aforementioned diet plans, restaurant, and food product trademark owners. From time to time, the Trademarks of other diet plan providers, restaurants, and food products may be referred to on the Website, and those Trademarks are owned by their respective owners. DietTV is not affiliated with, or sponsored or endorsed by, any of the diet plans, restaurant, and food product Trademark owners referenced on the Website. As used herein, the term "Trademarks" means, collectively, third party names, graphics, designs, logos, page headers, button icons, scripts, commercial markings, trade dress, and service names appearing on the Website. Trademarks are protected by the trademark laws of the United States and/or other jurisdictions. You may not use, copy, reproduce, republish, distribute or modify any Trademarks in any way, including without but not limited to distribution of Content for advertising or publicity or otherwise, without our prior written consent or the consent of such third party trademark holder, as applicable. Unless you have been expressly authorized to do so in writing by DietTV or the appropriate third party, you will not use any Trademark of any individual or entity in a way that is likely or intended to cause confusion about the owner or authorized user of such Trademark.

http://www.diettv.com/trademark_disclaimer.php

The aforementioned Trademark and copyright owners are not sponsors of DietTV or the Website and they have not endorsed and they are not affiliated with DietTV or the Website. The Meal Plans, Eating out Guides, Snack Plans, and Frozen Food Guides (a "Plan" or the "Plans") referred to herein are not sponsored, endorsed, or promoted by any of the aforementioned trademark and copyright owners, which bear no liability with respect to any such Plan.

5.4 Removal of Notices. You shall not remove, obscure, or alter any proprietary rights notices (including copyright and Trademark notices) which may be affixed to or contained within any Content, and that you will abide by all such notices.

 

6. Third Parties.

Your participation, correspondence or business dealings with any third party found on or through the Website (regarding payment and delivery of specific goods and services or otherwise), and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. DietTV shall not be responsible or liable for any loss, damage, or other matters of any sort incurred as the result of such dealings.

 

7. Links.

The Website may contain links to other websites ("Linked Sites"). The Linked Sites are not under the control of DietTV and DietTV is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, any changes or updates to a Linked Site or the availability of Linked Site, and DietTV do not endorse and is not responsible or liable for any content, advertising, services, products, or other materials on or available from a Linked Site including but not limited to destructive viruses. DietTV is not responsible for any form of transmission received from any Linked Site whatsoever. DietTV is providing these links to you only as a convenience, and the inclusion of any link does not imply an endorsement by DietTV of a Linked Site or any association with its operators or owners or an endorsement of DietTV by the operators or owners of any Linked Site. DietTV shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, advertising, services, products, or other materials on or available from a Linked Site. All of your activity on or in connection with any Linked Site shall be subject to the policies and procedures of the owner of such Linked Site.

 

8. Representations, Warranties and Covenants.

You represent and warrant that (i) you have all rights, power and the full legal authority to enter into the Agreement on your behalf or on behalf of your employer, as the case may be, (ii) you have read the Agreement and shall comply with all of your obligations under the Agreement, (iii) you accept and will abide by the terms of the Agreement, the Privacy Policy (as hereinafter defined) and any other terms and conditions posted on the Website, (iv) the posting of Submitted Content by you does and shall not violate any terms and conditions to which you are bound under the Agreement, any other applicable agreement, or any applicable laws or regulations, and (v) the Agreement is enforceable against you in accordance with its terms and conditions.

 

9. No Endorsement.

DietTV did not create any of the third-party diet plans, restaurant menus or food products and is not sponsored, endorsed, affiliated with, or approved by the owners/creators of such diet plans, restaurants or products or any of their owners. DietTV is responsible for developing all recommendations on the website including, but not limited to, listing foods products and restaurant items as compatible with the diet plans and recommending exercise programs that are compatible with the diet plans. DietTV's food suggestions and other recommendations are based on the opinions of DietTV and their understanding and interpretation of the different diet plans. DietTV's reference to nutritional information is based on publicly available information released by the restaurant and food manufacturers of those restaurants and foods referenced on the Website. DietTV is entirely responsible for the assembly of content, recommendations, and advice provided on the Website, other than for Submitted Content. The Website and its Content have not been reviewed, endorsed, or sponsored by the respective owners of any of the diet plans, restaurants services or food products featured on the Website.

 

10. MEDICAL DISCLAIMER.

10.1 NO MEDICAL ADVICE. THE CONTENT PROVIDED BY DIETTV ON THIS WEBSITE IS INTENDED FOR EDUCATIONAL PURPOSES ONLY AND DOES NOT OFFER MEDICAL OR COUNSELING ADVICE OF ANY KIND, INCLUDING WHETHER FOR MEDICAL OR OTHER PROFESSIONAL DIAGNOSIS, TREATMENT, OR TO ADVOCATE OR RECOMMEND THE TAKING OF ANY COURSE OF ACTION OR THE PURCHASE OR SELECTION OF ANY PRODUCT OR SERVICE. YOU SHOULD NOT RELY UPON ADVICE RECEIVED THROUGH THE WEBSITE FOR MEDICAL OR HEALTH DECISIONS AND WE ENCOURAGE YOU TO CONSULT WITH APPROPRIATE MEDICAL PROFESSIONALS, INCLUDING WITHOUT LIMITATION A PHYSICIAN, FOR ADVICE TAILORED TO YOUR SPECIFIC HEALTH NEEDS. INFORMATION RECEIVED THROUGH THE WEBSITE SHOULD NOT BE UNDERSTOOD TO BE MEDICAL OR NURSING ADVICE AND IS NEVER MEANT TO TAKE THE PLACE OF SEEKING THE GUIDANCE OF LICENSED HEALTH PROFESSIONALS. THE CONTENT IS NOT INTENDED TO ENDORSE OR GUARANTEE THE QUALIFICATIONS, CREDENTIALS OR APPROPRIATENESS OF ANY DIET OR HEALTH PLAN DESCRIBED ON THE WEBSITE OR OTHER CONTENT LINKED TO OR ADVERTISED, DIRECTLY OR INDIRECTLY, BY US. YOU UNDERSTAND THAT NEITHER DIETTV NOR ANY OF OUR AFFILIATES, SUBSIDIARIES AND EACH OF THEIR SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS, LICENSORS, AND ASSIGNS (COLLECTIVELY, THE "DIETTV PARTIES") ARE ACTING IN THE CAPACITY OF A DOCTOR, LICENSED DIETICIAN-NUTRITIONIST, PSYCHOLOGIST OR OTHER LICENSED OR REGISTERED PROFESSIONAL. ACCORDINGLY, YOU UNDERSTAND THAT NONE OF THE DIETTV PARTIES IS PROVIDING MEDICAL, HEALTH CARE, NUTRITION, THERAPY OR OTHER ADVICE OR SERVICES AND NO SUCH PARTY WILL DIAGNOSE, TREAT OR ATTEMPT TO CURE IN ANY MANNER WHATSOEVER, ANY DISEASE, AILMENT OR CONDITION OF THE HUMAN BODY. IN THE EVENT YOU BELIEVE THAT YOU HAVE RECEIVED MEDICAL OR OTHER ADVICE FROM THE WEBSITE WHICH, IN YOUR OPINION, CONSTITUTES AN EFFORT TO "TREAT" OR "CURE" YOU IN ANY MANNER WHATSOEVER OF ANY DISEASE, AILMENT OR CONDITION OF THE HUMAN BODY, YOU SHALL NOTIFY DIETTV IMMEDIATELY IN WRITING OF SUCH BELIEF BY CERTIFIED MAIL, POSTAGE PREPAID AND RETURN RECEIPT REQUESTED, AS SET FORTH IN SECTION 16 HEREOF.

10.2 "ASK DIETTV" QUESTIONS AND ANSWERS. SPECIFICALLY, THE CONTENT PRESENTED IN THE "ASK DIETTV" PORTION OF THE WEBSITE IS IN NO WAY INTENDED TO REPLACE PROFESSIONAL MEDICAL CARE, ADVICE OR ATTENTION BY A QUALIFIED LICENSED MEDICAL PROFESSIONAL, AND YOU SHOULD ALWAYS CONSULT WITH YOUR PERSONAL PHYSICIAN BEFORE ATTEMPTING TO PARTICIPATE IN ANY DIET. FURTHERMORE, IF YOU HAVE ANY QUESTIONS OR CONCERNS ABOUT YOUR WEIGHT OR OTHER HEALTH CONDITION, YOU MUST CONSULT WITH A LICENSED MEDICAL PROFESSIONAL BEFORE STARTING A DIET OR COMMENCING ANY OTHER RESPONSE OR TREATMENT. THE CONTENT IN THE "ASK DIETTV" PORTION OF THE WEBSITE SHOULD NOT BE USED AS A BASIS FOR DIAGNOSIS OR CHOICE OF TREATMENT.

 

11. DISCLAIMER OF WARRANTIES.

FURTHER TO THE PROVISIONS OF SECTION 10 OF THE AGREEMENT AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE AND AGREE TO EACH OF THE PROVISIONS SET FORTH IN SECTIONS 11.1 AND 11.2 BELOW:

11.1 YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK AND THE WEBSITE IS PROVIDED "AS IS", "WHERE IS" AND "AS AVAILABLE". NONE OF THE DIETTV PARTIES ASSUMES ANY RESPONSIBILITY FOR YOUR USE OF THE WEBSITE INCLUDING WITHOUT LIMITATION ALL CONTENT PROVIDED THROUGH THE WEBSITE, AND MAKES NO PROMISES, GUARANTEES, PREDICTIONS OF SUCCESS OR ANY CLAIMS TO SPECIAL EXPERIENCE, INSIGHT, OR EXPERTISE IN ENABLING YOU TO MAKE USE OF THE WEBSITE'S FUNCTIONALITY OR CONTENT. NOTHING IN THE AGREEMENT SHALL CREATE ANY EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION BY DIETTV. IN PARTICULAR, EACH OF THE DIETTV PARTIES EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION THAT (I) YOUR USE OF THE WEBSITE WILL MEET YOUR REQUIREMENTS, (II) YOUR USE OF THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERRORS OR OMISSIONS, (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE WEBSITE WILL BE ACCURATE OR RELIABLE, (IV) WE WILL ISSUE UPDATES OR ENHANCEMENTS FOR ANY PORTION OF THE WEBSITE, OR (V) DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY PORTION OF THE WEBSITE WILL BE CORRECTED.

11.2 (I) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS DONE AT YOUR SOLE DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA, OR ANY OTHER LOSS, THAT RESULTS FROM THE DOWNLOAD OR OTHER USE OF ANY SUCH MATERIAL, (II) NONE OF THE DIETTV PARTIES ENDORSES OR IS RESPONSIBLE FOR ANY CONTENT, INCLUDING WITHOUT LIMITATION THIRD PARTY CONTENT, APPEARING ON THE WEBSITE, (III) NONE OF THE DIETTV PARTIES IS RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF YOUR INTERACTION WITH ANY THIRD PARTY, (IV) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DIETTV OR THROUGH THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT, AND (V) NONE OF THE DIETTV PARTIES SHALL HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY TO YOU OR ANY OTHER PERSON FOR ANY LOSS, DAMAGE, OR ADVERSE CONSEQUENCE ALLEGED TO HAVE HAPPENED DIRECTLY OR INDIRECTLY THROUGH YOUR USE OF THE WEBSITE INCLUDING WITHOUT LIMITATION YOUR USE OF ANY CONTENT. SPECIFICALLY, EACH OF THE DIETTV PARTIES DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE IN CONNECTION WITH YOUR USE OF THE WEBSITE, INCLUDING WITHOUT LIMITATION ANY CONTENT APPEARING TROUGH OR DELIVERED IN CONNECTION WITH THE WEBSITE.

 

12. LIMITATION OF LIABILITY.

12.1 IN NO EVENT SHALL ANY OF THE DIETTV PARTIES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE WEBSITE (INCLUDING WITHOUT LIMITATION YOUR USE OF ANY CONTENT OBTAINED FROM OR THROUGH THE WEBSITE), WHETHER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION NEGLIGENCE, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, OR ANY OTHER INTANGIBLE LOSS OR DAMAGE. WITHOUT LIMITING THE FOREGOING, NONE OF THE DIETTV PARTIES SHALL BE LIABLE FOR ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU AS A RESULT OF (I) ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY CONTENT, (II) ANY CHANGES WHICH DIETTV MAY MAKE TO THE WEBSITE, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE WEBSITE (OR ANY FEATURES CONTAINED ON THE WEBSITE), (III) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, INCLUDING WITHOUT LIMITATION SUBMITTED CONTENT, (IV) YOUR FAILURE TO PROVIDE DIETTV OR OUR THIRD PARTY PROVIDERS WITH ACCURATE ACCOUNT INFORMATION OR YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL, OR (V) ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY THIRD PARTY.

12.2 IN NO EVENT SHALL ANY OF THE DIETTV PARTY'S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO YOUR USE OF THE WEBSITE EXCEED THE LESSER OF (I) THE CUMULATIVE AMOUNT OF THE FEES PAID TO DIETTV (IF APPLICABLE) BY YOU OVER THE SIX (6) MONTH PERIOD PRECEDING A CLAIM OR CAUSE OF ACTION ARISING IN CONNECTION WITH SUCH LIABILITY, OR (II) ONE THOUSAND DOLLARS ($1,000).

12.3 THE LIMITATIONS ON THE LIABILITY OF ANY DIETTV PARTY TO YOU IN THIS SECTION 12 SHALL APPLY WHETHER OR NOT ANY SUCH DIETTV PARTY HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES. SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN SECTIONS 10, 11 OR 12 HEREOF MAY NOT APPLY TO YOU.

 

13. Indemnification.

You shall indemnify, defend and hold harmless each of the DietTV Parties from all claims, demands, actions, losses, expenses, and damages (actual and consequential, direct and indirect) of every kind and nature, including without limitation reasonable attorneys' fees and disbursements, made by any third party due to or arising out your (i) breach of any of your representations, warranties, covenants or obligations under the Agreement, (ii) negligence or misconduct, or (iii) violation of any law or regulation. You shall provide all applicable DietTV Parties with prompt written notice of any claim covered by this Section 13, and you shall have the right and duty to assume the control of the defense thereof with counsel reasonably acceptable to each such DietTV Party, and each such DietTV Party may take part in and/or to fully assume such defense, at its own expense in its sole discretion, after you assume the control thereof. You shall not to enter into any settlement that any of the DietTV Parties believes is adverse to its interests without receiving the prior written consent of each such party. None of the DietTV Parties shall be obligated to participate in any settlement which such party reasonably believes would have an adverse effect on such party's business interests.

 

14. Privacy.

DietTV views the protection of your privacy as an important responsibility. The terms regulating the handling of personally identifiable information ("PII") and other information submitted by you in connection with the Website is described in our Privacy Policy, which can be found at www.diettv.com/privacy.php. By using the Website, you indicate that you have read the Privacy Policy and consent to the collection and use of your PII and other information by us as described in the Privacy Policy.

 

15. No Agency.

No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created between you and DietTV by the Agreement.

 

16. Notices.

All notices hereunder shall be given by certified mail, postage prepaid and return receipt requested, to: DietTV, Inc., Attn: Notices, 25 Wade St. Brighton MA 02135 and to a Registrant by electronic mail at the email address listed in such Registrant's Account. Notice shall be deemed given three (3) days after the date of such mailing, and in the case of electronic mail, upon the receipt of such message.

 

17. Governing Law; Jurisdiction.

The Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, excluding conflict of laws provisions thereof. You hereby submit to the personal and exclusive jurisdiction by and venue in the courts located within the County of New York, State of New York, and to receive service of process through certified mail or by other means sanctioned by law, and the parties expressly waive any claim of improper venue and any claim that such courts are an inconvenient forum.

 

18. Timely Filing of Claims.

REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE INCLUDING WITHOUT LIMITATION YOUR USE OF THIS WEBSITE, MUST BE FILED BY YOU PURSUANT TO SECTION 17 ABOVE WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR IS CLAIMED TO HAVE ARISEN.

 

19. Assignment.

You shall not to resell or assign your rights or obligations under the Agreement. . We are free to assign our rights and obligations under the Agreement, which will inure to the benefit of our successors, assigns and/or licensees. Without limitation of the foregoing, we may sell, transfer or otherwise share some or all of our assets, including without limitation your PII, with any parent company, subsidiary, affiliate, joint venture, as well as with a potential acquirer, including without limitation in connection with a merger, reorganization, or sale of assets or stock, or in the event of a bankruptcy. In each such an event, the PII we have collected from you may be one of the assets transferred to any such party.

 

20. Validity; Section Headings.

If any provision of the Agreement is held to be invalid by a court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the Agreement, which shall remain in full force and effect. Section headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.

 

21. Waiver.

Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. If DietTV does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which DietTV has the benefit of under any applicable law), this will not be taken to be a formal waiver of DietTV's rights and that those rights or remedies will still be available to DietTV

 

22. Survival.

The provisions of the Agreement will survive termination or expiration to the extent necessary to carry out the intentions of you and DietTV.

 

23. Contact Us.

If you have any questions or concerns regarding the Website, please contact us by e-mail at info@diettv.com or write to us at DietTV Inc., Attn: Customer Support, 25 Wade St. Brighton MA 02135