Date of Last Revision: February 27, 2012
- Term. This Agreement will remain in full force and effect while you use the Site and/or are a registered member. The Company may terminate your membership, delete your profile and any content or information that you have posted on the Site and/or prohibit you from using or accessing the Site (or any portion, aspect or feature of the Site) for any reason , or no reason, at any time at in its sole discretion, with or without notice, including if it believes that you are under 18. You may terminate your membership at any time for any reason provided that if you are in an ongoing DietBet game you will continue to be bound by the terms of that game until that game terminates. Even after your membership is terminated, certain sections of this Agreement will remain in effect; see Section 13.f below for a list of the provisions of this Agreement that will survive the termination of your membership.
- Registration Data; Account Security. You agree to (a) provide accurate, current, and complete information about yourself as may be prompted by any registration forms on the Site ("Registration Data"); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to the Company, to keep it accurate, current and complete; and (d) be fully responsible for all use of your account and for any actions that take place using your account.
- User Conduct.
- The User has a nonexclusive, nontransferable, limited, and revocable right to use the Site solely for User's personal, non-commercial use. The User will not use the Site for any other purpose, including any commercial purpose, without the Company's prior written consent. The User represents, warrants, and agrees that no materials of any kind submitted through the User's account or otherwise posted, transmitted, or shared by the User on or through the Site will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory, or otherwise unlawful material. The User also agrees to use the Site in a manner consistent with any and all applicable laws and regulations.
- The User agrees not to use the Site or to authorize any other person to use the Site to:
- cause the Site, or any portion thereof, to be framed in such a way that the Site, or any portion thereof, appears on the same screen with a portion of another website;
- harvest or collect email addresses or other contact information of other users from the Site by electronic or other means for any reason outside game play, including sending unsolicited emails or other unsolicited communications;
- use the Site in any prohibited or unlawful manner or in any other manner that could damage, disable, overburden or impair the Site;
- use automated scripts to collect information from or otherwise interact with the Site;
- upload, post, transmit, share, store or otherwise make available any content that the Company deems to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, racist, or otherwise objectionable, including the weights and other sensitive personal information of players without such players' written permission;
- upload, post, transmit, share, store or otherwise make available any videos other than those of a personal nature that: (i) are of you or your friends, (ii) are taken by you or your friends, or (iii) are original art or animation created by you or your friends;
- register for more than one User account, register for a User account on behalf of an individual other than yourself, or register for a User account on behalf of any group or entity;
- impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age or your affiliation with any person or entity;
- upload, post, transmit, share or otherwise make available any unsolicited or unauthorized advertising, solicitations, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
- upload, post, transmit, share, store or otherwise make publicly available on the Site any private information of any third party, including, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
- solicit personal information from anyone under 18 or solicit passwords or personally identifying information for commercial or unlawful purposes;
- upload, post, transmit, share or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- intimidate or harass other Users ;
- upload, post, transmit, share, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
- use or attempt to use another's account, service or system without authorization from the Company, or create a false identity on the Site;
- upload, post, transmit, share, store or otherwise make available content that, in the sole judgment of the Company, is objectionable or which restricts or inhibits any other person from using or enjoying the Site, or which may expose the Company or its users to any harm or liability of any type;
- manipulate your weight in short-term ways that violate our Guidelines for Losing Weight Safely, including engaging in rapid hydration or dehydration, binging, purging, and/or weight-loss surgery;
- misrepresent your weight;
- play repeatedly for the purpose of being a "professional" competitor;
- manipulating the game including colluding among players, wagering on a DietBet game that you are not competing in, betting on someone other than yourself, betting against a player, or otherwise manipulating the natural course of the game.
- Without limiting any of the foregoing, you also agree to abide by our DietBet Code of Conduct that provides further information regarding the authorized conduct of users on DietBet.
- Proprietary Rights in Site Content; Limited License.
Proprietary Rights. The User acknowledges and agrees that all content on the Site, including designs, text, graphics, pictures, photographs, video, information, applications, software, music, sound and other files, and their selection and arrangement (the "Site Content"), are the property of DietBet and its content providers and that the Company and its content providers retain all right, title, and interest in the Site Content. No Site Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without DietBet's prior written permission, except that the foregoing does not apply to the User Content (as defined below) that the User legally posts on the Site.
- User Content Posted on the Site.
User Responsibility. You are solely responsible for the photos, profiles (including your name, image, and likeness), messages, notes, text, information, music, video, advertisements, listings, and other content that you upload, publish or display (hereinafter, "post") on or through the Site (collectively the "User Content"). You may not post, transmit, or share User Content on the Site that you did not create or that you do not have permission to post. You understand and agree that the Company may, but is not obligated to, review the Site and may delete or remove (without notice) any Site Content or User Content in its sole discretion, for any reason, or no reason, including User Content that in the sole judgment of the Company violates this Agreement or the DietBet Code of Conduct, might be offensive, illegal, threatening to the safety of users or others, or might violate the rights of users or others. You are solely responsible at your sole cost and expense for creating backup copies and replacing any User Content you post or store on the Site or provide to the Company.
- Submissions. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Site ("Submissions"), provided by you to the Company are non-confidential and shall become the sole property of the Company. The Company shall own exclusive rights (including all intellectual property rights) to, and shall be entitled to the unrestricted use and dissemination of, these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
- Intellectual Property.
Trademarks. DietBet, the Daily Carrot, and other Company graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, service marks, or trade dress of the Company in the U.S. and/or other countries. The Company's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of the Company.
- Copyright Protection.
- You may not Post, distribute or reproduce any copyrighted material, trademarks, or service marks or other proprietary information owned by another party without obtaining the prior written consent of the copyright owner. If you believe that your work has been copied and Posted on the Website without your permission or in any other way that constitutes copyright infringement, please review and follow the procedures set forth in our Copyright Policy.
- In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, the Company has adopted a policy of terminating, in appropriate circumstances and at the Company's sole discretion, members who are deemed to be repeat infringers. The Company may also at its sole discretion limit access to the Site and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement or infringement of the Company's intellectual property rights specifically.
- Copyright Protection.
- Third Party Websites and Content.
The Site contains (or you may be sent through the Site to) links to other web sites ("Third Party Sites") as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third parties (the "Third Party Applications, Software or Content"). Such Third Party Sites and Third Party Applications, Software or Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Sites accessed through the Site or any Third Party Applications, Software or Content posted on, available through or installed from the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies contained in the Third Party Sites or the Third Party Applications, Software or Content. Inclusion of, linking to, or permitting of the use or installation of any Third Party Site or any Third Party Applications, Software, or Content does not imply approval or endorsement thereof by us. If you decide to leave the Site and access the Third Party Sites or to use or install any Third Party Applications, Software, or Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site or relating to any applications you use or install from the Site.
- Reference to any products, services, processes, or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof, or any affiliation therewith, by the Company. Even if we recommend certain products, we are not offering any warrantees about the quality or safety of such products, either explicit or implied. You should do your own independent research, particularly when it comes to food-related products.
- Disputes between Users. You are solely responsible for your interactions with other DietBet users. We reserve the right, but have no obligation, to monitor disputes between you and other users. In the event that we do resolve a dispute between or among you and other users, our decision shall be final.
Content. The Company is not responsible or liable in any manner for any User Content or Third Party Applications, Software, or Content posted on or accessible through the Site, whether posted or caused by users of the Site, by DietBet, by third parties, or by any of the equipment or programming associated with or utilized in the Site. Although we provide rules for user conduct and postings, we do not control and are not responsible for what users post, transmit, or share on the Site and are not responsible for any offensive, inappropriate, obscene, unlawful, or otherwise objectionable content you may encounter on the Site or in connection with any User Content or Third Party Applications, Software, or Content. The Company is not responsible for the conduct, whether online or offline, of any user of the Site.
- Availability and Data Integrity. The Site may be temporarily down from time to time for maintenance or other reasons. The Company assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, User communications including but not limited to User Content. The Company is not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any website or combination thereof, including injury or damage to User's or to any other person's computer, mobile phone, or other hardware or software, related to or resulting from using or downloading materials in connection with the worldwide web and/or in connection with the Site. Under no circumstances will the Company be responsible for any loss or damage, including any loss or damage to any User Content or personal injury or death or to losses of wagers on DietBets, resulting from anyone's use of the Site, any User Content or Third Party Applications, Software or Content posted on or through the Site or transmitted to Users, or any interactions between users of the Site, whether online or offline.
- Viruses and Malware. The Company does not represent or warrant that software, content or materials on the Site, or any Third Party Applications, Software, or Content are accurate, complete, reliable, current, or error-free or that the Site, its servers, or any Third Party Applications, Software or Content are free of viruses or other harmful components. Therefore, you should exercise caution in the use and downloading of any such software, content or materials and use industry-recognized software to detect and disinfect viruses.
- Health Disclaimer. DietBet is not a medical organization. Nothing contained in this Agreement or on the Site should be construed as medical advice. The information offered by DietBet and its affiliates should not be interpreted as a substitute for physician consultation, evaluation, or treatment. The User acknowledges that DietBet has no knowledge of any User's health condition(s) and that User alone is responsible for any actions User takes that may have any health or other risks to User.
- Results. We believe our game, when played properly, will help most people to lose weight. In some cases, we offer money-back guarantees if certain results are not obtained. In those cases, users may be entitled to receive a refund of their initial bet. However, beyond such money-back guarantees or assurances to the contrary, the Company cannot guarantee and does not promise any specific results from use of the Site and/or any Third Party Applications, Software, or Content. In no case shall the Company be responsible to you for losing money should you wager on a DietBet. You acknowledge that wagering on a DietBet is inherently risky.
- Not a game of chance. DietBet is not a game of chance. The intent of the program is to reward participants only for actions over which they have control or influence. The use of this program to reward participants for actions over which they have no control or influence is strictly prohibited.
- Managing the Pot. You acknowledge that DietBet, Organizers, or other agents may be charged with holding money wagered in relation to a DietBet game. The Company shall not be responsible for enforcing that such agents perform their role properly, including paying out winners properly.
- Organizers. You acknowledge that Organizers of DietBets are subject to human error, just as with referees in other games (indeed, even more, as DietBet Organizers are generally not trained for these roles). Organizers may discharge their responsibilities improperly and make mistakes (in good faith or not). You acknowledge that this is an inherent risk of playing DietBet and agree to accept their rulings as final. This specifically includes making what you may believe are incorrect judgments, decisions to eject players, errors in recordkeeping, or other actions that may directly or indirectly affect the outcome of your DietBet as well as your wager on such DietBet. Any disputes you have with Organizers, including ones we supply into these roles, must be resolved directly with the Organizer. The Company will not mediate such disputes or take any responsibility for the actions or inactions of DietBet Organizers.
- Conflict of Interest. In some games, the Organizer is both Organizer and competitor. This presents a conflict of interest. If you agree to play in a game where the Organizer is also competing, you accept full responsibility for any problems arising therefrom.
- Excessive Weight Loss. You will be automatically disqualified for losing more than thrice the amount of weight your goal dictates. DietBet automatically disqualifies any player who, by the final weigh-in, has lost more than thrice their target weight loss amount. We do this to ensure that players do not lose a potentially unhealthy amount of weight during the game and to prevent players from winning by dint of weight-loss procedures such as bariatric surgeries and liposuction. If you are disqualified for Excessive Weight Loss, you will not be entitled to a refund.
- Organizer's Responsibilities. All problems, disputes, and extraordinary circumstances are the responsibility of your game's Organizer to resolve. DietBet has no responsibility or obligation to resolve issues that arise, including extraordinary circumstances.
- Death of Organizer. If your Organizer dies or is otherwise incapable of performing his or her Organizer duties, the game will be considered a draw and money returned to all players who have not been previously disqualified or ejected, less any standard fees that DietBet may collect for managing your pot.
- Reservation of Rights. The Company reserves the right, solely in its discretion, to
change any and all content, software and other items used or contained in the Site at any time without notice;
- modify and/or discontinue the Site at any time without notice; and
- THE SITE AND THE SITE CONTENT ARE PROVIDED "AS-IS" AND THE COMPANY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN CONTENT, MATERIAL, DATA, OR SOFTWARE (INCLUDING ANY MOBILE CLIENT) FROM OR THROUGH THE SITE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR YOUR USE THEREOF AND ANY DAMAGES TO YOUR MOBILE DEVICE OR COMPUTER SYSTEM, LOSS OF DATA OR OTHER HARM OF ANY KIND THAT MAY RESULT.
- Limitation on Liability.
- IN NO EVENT WILL COMPANY OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SITE OR ANY THIRD PARTY APPLICATIONS, SOFTWARE OR CONTENT OR ANY OF THE SITE CONTENT OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED FROM THE SITE, EVEN IF THE COMPANY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE COMPANY'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US FOR THE SITE DURING THE TERM OF THIS AGREEMENT AND IN NO CASE WILL EXCEED $1,000. THE COMPANY SHALL BEAR NO LIABILITY FOR ANY AMOUNTS LOST THROUGH A BET MADE ON OR THROUGH THE SITE. YOU ACKNOWLEDGE THAT IF NO FEES ARE PAID TO COMPANY FOR USE OF THE SITE, YOU SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM THE COMPANY, REGARDLESS OF THE CAUSE OF ACTION.
- Indemnity. You agree to indemnify and hold the Company, its subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney's fees, arising out of or in connection with any User Content, any Third Party Applications, Software or Content you post or share on or through the Site, your use of the Site, your conduct in connection with the Site or with other users of the Site, or any violation of this Agreement or of any law or the rights of any third party.
- Arbitration. You and the Company agree that all disputes, controversies or differences which may arise between the parties hereto, out of or in relation to or in connection with this Agreement shall be finally settled by binding arbitration in Delaware in accordance with the Consumer Procedures and Rules of the American Arbitration Association.
- Definitions and Constructions. Unless otherwise specified, the terms "includes", "including", "e.g.,", "for example", and other similar terms are deemed to include the term "without limitation" immediately thereafter. Terms used in these Terms with the initial letter(s) capitalized will have the meaning attributed to them in these Terms.
- No Agency. There is no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between you and us or between us and any other Member or user of the Website.
- Survival. Although this Agreement may be terminated by you or us at any time and for any reason, the terms of the following sections of this Agreement will survive any such termination and you and we will continue to be bound by such terms indefinitely: Section 2 (Term), Section 5 (Proprietary Rights in Site Content), Section 9 (Member Disputes), Section 10 (Disclaimers), Section 11 (Limitation on Liability), Section 12 (Indemnity), and this Section 13 (Miscellaneous).