1. ACCEPTING THIS AGREEMENT.
These Terms of Service (“Terms”), together with the Privacy Policy, any applicable Supplemental Terms, and all other operating rules, policies, and procedures that we may publish on the Services, form a legally binding agreement (collectively, the “Agreement”) between you (“You” or “you”) and Thrive Health Holdings, Inc. (d.b.a. Top Nutrition Coaching) (“Top Nutrition Coaching,” “TNC,” “we,” “our,” or “us”) governing your use of the Services. Your use of the Services may be subject to additional terms and conditions made available to you in advance (“Supplemental Terms”), as may be updated from time to time in our discretion. Capitalized terms are defined in Section 18 (Definitions) or in context within the Agreement.
PLEASE NOTE THAT SECTION 16 (DISPUTE RESOLUTION) OF THIS AGREEMENT CONTAINS A BINDING ARBITRATION AGREEMENT, JURY WAIVER, AN ARBITRATION OPT-OUT PROVISION, AND A CLASS ACTION WAIVER. BY AGREEING TO THIS AGREEMENT, YOU AND TNC AGREE TO SUBMIT ANY DISPUTES THROUGH BINDING ARBITRATION ON AN INDIVIDUAL BASIS, SUBJECT TO THE OPT-OUT PROVISION IN SECTION 16 (DISPUTE RESOLUTION).
BY ACCESSING OR USING THE SERVICES IN ANY WAY, CLICKING ON THE “I ACCEPT” OR SIMILAR BUTTON, OR COMPLETING THE ACCOUNT REGISTRATION PROCESS, YOU REPRESENT THAT: (a) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT; (b) YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE OR IF YOU ARE UNDER EIGHTEEN (18) YEARS OF AGE OR OTHER AGE OF MAJORITY IN YOUR STATE OF RESIDENCE (I.E. YOU ARE A MINOR), YOUR PARENT OR LEGAL GUARDIAN HAS AGREED TO THESE TERMS ON YOUR BEHALF AND YOU MAY ONLY ACCESS AND USE THE SERVICE WITH PERMISSION FROM YOUR PARENTS OR LEGAL GUARDIAN; (c) YOU ARE NOT BARRED FROM USING THE SERVICES UNDER THE LAWS OF THE UNITED STATES, YOUR PLACE OF RESIDENCE, OR ANY OTHER APPLICABLE JURISDICTION; AND (d) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.
IMPORTANT: AS FURTHER SET OUT IN SECTION 11.2(f), THE SERVICES ARE NOT FOR EMERGENCY USE. IF YOU ARE EXPERIENCING A MEDICAL OR MENTAL HEALTH EMERGENCY, DIAL “911” IMMEDIATELY. DO NOT USE THE SERVICES FOR EMERGENCY OR URGENT SITUATIONS.
2. SERVICES.
2.1. Scope of Services. We have developed a network of registered dietitians and nutrition specialists (the “Clinician Network”) and we facilitate your access to a provider in this network who can provide customized nutrition plans, assistance with meal planning, and ongoing support for your nutritional health goals and needs. You may access the following Services, as further detailed below: (a) the Administrative Services, which are provided by us; and (b) the Telehealth Services, which are provided by independent third-party providers in the Clinician Network and not by us. Our role with respect to Telehealth Services is limited to facilitating your access to the applicable providers.
2.2. Administrative Services. After collecting intake information from you, we will facilitate your access to Network Providers and provide administrative services to assist with and manage these relationships (“Administrative Services”).
2.3. Telehealth Services. The registered dietitians and nutrition specialists in the Clinician Network (each a “Network Provider”) provide telehealth services via a secure video conferencing platform, which may include an initial consultation, assessment, diagnosis, therapy, counseling, follow-up consultation, treatment, coaching, and related communications, as applicable (the “Telehealth Services”). Based on your intake responses, we will pair you with a Network Provider. You and your Network Provider will then have a one (1) hour video call to discuss your goals and develop a nutrition plan.
2.3.1. Self-Pay Clients. You may elect to receive the Telehealth Services at a weekly, biweekly, or monthly rate at a membership fee of $59 weekly, $89 biweekly, or $119 monthly (“Membership Fee”).
2.3.2. Insurance Clients. The number of follow-ups depends on your insurance benefits. Once your insurance coverage ends, you can switch to a self-pay membership. You are solely responsible for any preauthorization requirements, copayments, and all other obligations arising from your insurance plan.
2.4. Diagnostic Testing. Your Network Provider may order genetic, microbiome, and blood testing if applicable in your state and city in order to assist in providing personalized nutrition recommendations. You are responsible for the payment of any testing.
2.5. Self-Guided Resources. As part of your Membership, we may make available self-guided informational nutrition resources, which may include exercises, guides, interactive worksheets, and similar educational content (collectively, “Self-Guided Resources”). Self-Guided Resources are provided for informational and educational purposes only and are not a substitute for professional medical advice, diagnosis, or treatment. You should not rely on Self-Guided Resources in lieu of consultation with a qualified healthcare provider. We make no representations or warranties regarding the efficacy or clinical outcomes of any Self-Guided Resources. We reserve the right to modify, update, or remove Self-Guided Resources at any time.
2.6. Pre-Screening Assessment. We may offer a free online screening assessment (the “Pre-Screening Assessment”) to help you evaluate whether our Services may be appropriate for you. The Pre-Screening Assessment is provided for informational purposes only, does not constitute a medical diagnosis, and does not create a provider-patient relationship. Completion of the Pre-Screening Assessment does not guarantee eligibility for the Services. We reserve the right to modify or discontinue the Pre-Screening Assessment at any time without notice.
2.7. Complimentary Consultation. We may offer a free fifteen (15) minute consultation (the “Complimentary Consultation”) at applicable locations. The Complimentary Consultation is provided to assist you in evaluating whether our Services may be appropriate for you and does not create a provider-patient relationship. The Complimentary Consultation does not guarantee eligibility for the Services.
2.8. Provider Relationship; No Clinician-Patient Relationship. Your use of the Services does not create a clinician-patient, or any other professional relationship between you and us or any of our officers, directors, employees, consultants, agents, or affiliates. We do not provide any therapy, medical, or other professional services. Each Network Provider is an independent professional and is not our employee. Any information or advice received from a Network Provider comes from the applicable provider alone, and not from us. We make no representations or warranties about the training, skill, or qualifications of any Network Provider, and are not responsible or liable for the advice, availability, acts, or omissions of any Network Provider. You may request to switch your assigned Network Provider by contacting us at the support email identified below, and we will use commercially reasonable efforts to accommodate your request, subject to Network Provider availability in your state. We do not guarantee that any particular Network Provider will be available, and we reserve the right to reassign your Network Provider at any time. Any reassignment will not affect your payment obligations.
2.9. Access and Consent. Once you place your order to receive any Services, you will receive a form of consent allowing access to a Network Provider (“Telehealth Consent Form”). To receive Services, you will be required to sign the Telehealth Consent Form. Once the signed Telehealth Consent Form is received by us, your Network Provider will schedule the respective Services.
2.10. Electronic Communication Consent. By opting in to receive text messages from us, you agree to receive autodialed or prerecorded marketing and informational text messages from us at the mobile phone number you provide. We do not charge any fees for such telephonic services, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider subject to message and data rates. Your consent to receive autodialed marketing text messages is not required as a condition of purchasing any goods or services. If you have opted in, we may provide updates, alerts, information, promotions, specials, and other marketing offers (e.g., cart reminders) from us via text messages through your wireless provider to the mobile number you provided. Message frequency varies. For support or assistance, see Section 3.5 (Communications with Us).
2.11. AI Features. We may use computer-based tools, sometimes called artificial intelligence (“AI”), to help support healthcare operations, treatment activities, and patient communications. These tools may assist the providers and staff in reviewing health information, preparing educational materials, improving workflows, and enhancing the quality and efficiency of care. These tools are designed to support — not replace — the professional judgment of your healthcare providers; all important medical decisions are made by qualified clinicians. We take reasonable steps to protect the privacy and security of your health information when using AI tools. Any use of AI is subject to our safeguards, policies, and procedures under the Health Insurance Portability and Accountability Act (“HIPAA”) and other applicable laws.
The Services may include AI Features that process Your Content through third-party AI providers and may be subject to Third-Party Terms. In response to any prompts, comments, questions, or other submissions (“Input”) and Your Content, the AI Features may generate outputs (“Outputs”). You represent and warrant that you have all necessary rights and permissions to submit Your Content or Input into the AI Features. You acknowledge and agree that: (a) Outputs are provided “AS IS” without warranty of any kind, including warranties of accuracy, completeness, or suitability, or with respect to intellectual property protection under applicable law; (b) you are solely responsible for reviewing and implementing all Outputs and will comply with all applicable laws in using them; (c) you assume all risks associated with the use of AI Features and Outputs; and (d) we shall not be liable for any decisions or actions based on AI Features or Outputs. Your Content or Input provided to or through the AI Features may be used by us to improve our AI systems, provided such data is anonymized and aggregated.
3. YOUR ACCOUNT.
3.1. Creating Your Account. To access certain features of the Services, you will be required to create an account. By creating an account, you represent and warrant that you are at least eighteen (18) years of age or if you are under the age of eighteen (18) or other age of majority in your state of residence, your parent or legal guardian has given you permission to access the Services. As further set out in the Privacy Policy, you must provide us with certain information, including personal information, in order to create an account. In registering an account on the Services, you must (a) provide true, accurate, current, and complete information about yourself as prompted (the “Registration Data”), and (b) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. You must not create an account or use the Services if you have been previously removed or suspended by us. You must not create an account using a false identity or information, or on behalf of someone other than yourself. We may suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof) if you provide false or inaccurate data.
3.2. Your Account. You do not own or have any other property interest in your account. You are solely responsible for all activities that occur under your account. You may only have one (1) account, and accounts are not transferable. You may not share your account or password with anyone and must notify us immediately of any unauthorized use of your password or any other breach of security. We reserve the right to remove or reclaim any usernames at any time and for any reason, including claims by a third party that a username violates the third party’s rights.
3.3. Your Device Functionality. You are responsible for obtaining and maintaining your device, software, operating system, carrier, and network access necessary to properly access and use the Services. We do not guarantee that the Services or any portions thereof will function on or in connection with any particular device, software, operating system, carrier, or network. We will have no liability for errors, unreliable operation, or other issues resulting from use of the Services or in connection with rooted or jailbroken devices or use on any mobile device that is not in conformance with the manufacturer’s original specifications, including, but not limited to, use of modified versions of the operating system.
3.4. Your Consent to Our Privacy Practices. The Privacy Policy explains, among other topics, how we treat information that you provide us through the Services. By accessing the Services, you consent to our privacy practices as set out in our Privacy Policy, which is available at https://www.topnutritioncoaching.com/privacy-policy.
3.5. Communications with Us. Except as may be set forth in any Supplemental Terms, we offer support via email at support@topnutritioncoaching.com. We do not offer telephone support. Please review Section 17.9 (Notice) for how to contact us for legal notices.
4. FEES, PAYMENT, AND REFUNDS.
4.1. Fees. You shall pay us the fees associated with your use of the Services and identified on the Site or the order placed (collectively, the “Fees”), either (a) with one upfront payment at the time you book your initial consultation, or (b) on a recurring basis as described on the Site if you sign up for a Membership. Unless expressly otherwise provided herein, all Fees are stated and payable in U.S. dollars. You understand that the portion of the Fees attributed to Telehealth Services is passed through by us to the applicable Network Provider rendering the Telehealth Services to you and is not retained by us. The portion of the Fees retained by us is for the fair market value of the Administrative Services provided by us.
4.2. Payment. Payment of the Fees may be made through the use of a third-party payment processor (“Payment Processor”). Your payment of the Fees will be subject to the terms of the Payment Processor.
4.3. Payment Information. We will charge any fees associated with your account to your credit or debit card on file with us and in accordance with these Terms. Invoices or receipts for payments will be emailed to you or available through your account. You represent and warrant that (a) the credit card or debit card information you provide to us is true, correct, and complete, and (b) you are the person in whose name the credit card or debit card was issued and/or you are authorized to make a purchase with the relevant credit card or debit card. You must notify us prior to your next billing date of any change in billing address, contact information, and credit card, debit card, or account information. If a method of payment is declined or automatic payment does not go through, you must call us within 5 days to provide a new form of payment. Failure to do so will result in your membership being suspended until a valid form of payment is provided.
4.4. Waiver of Claims and Unauthorized Payments. You agree to waive all claims against us and our third-party affiliates, including our third-party Payment Processor(s), related to unauthorized payments made on or through the use of your account that are outside of our control. However, you may submit a claim regarding an unauthorized payment to us so that we can conduct a reasonable investigation as we see fit under the circumstances. If appropriate, we will assist in correcting the unauthorized payment, provided that such claim is received by us within thirty (30) days of the disputed charge or payment.
4.5. Other Fees. You agree to pay all other fees and charges associated with your account, including, for example, appointment no-show fees, cancellation fees, late rescheduling fees, additional single visits with a Network Provider, and any fees for any other Services (collectively, “Other Fees”), on a timely basis and according to the terms and rates presented to you. By using the Services and incurring such Other Fees, you authorize us to bill and charge your payment method on file for such Other Fees in full.
4.6. Trials and Promotional Fees. We may periodically offer discounts to our Services in the form of free trial periods or promotional fees. The terms of those discounts will be stated at the time you sign up or when you purchase the applicable Service. You may only be permitted to use one free trial or promotional fee offer. If your Membership is ever cancelled or terminated for any reason, and you purchase an additional Membership, you may not be eligible for a free trial or to take advantage of another promotional fee offer.
4.7. Pricing Modification. We reserve the right to prospectively modify or implement a new pricing structure, including changes to Membership Fees, Other Fees, or the features and benefits included in a Membership. We will notify you if a change in pricing or Membership features takes place during the Term. If you disagree with the new pricing structure or changes to Membership features, you may terminate this Agreement pursuant to Section 15 (Term, Termination and Suspension).
4.8. Cancellation and Refunds. You may cancel your Membership at any time by following the instructions on the Site or by contacting us. Cancellation will take effect at the end of the then-current billing period. Except as otherwise required by applicable law, all purchases are final and no refunds will be provided for unused sessions or any unused portion of a Membership period following cancellation. Notwithstanding the foregoing, we may, at our sole discretion, allow a refund for extenuating circumstances.
5. CONTENT.
5.1. Your Content. You are solely responsible for the information, text, opinions, messages, comments, audio, photographs, videos, graphics, sounds, and any other content or material that you submit, upload, post, host, store, share, or otherwise make available through the Services (collectively, “Your Content”). When you Share any of Your Content, you represent that you own or have sufficient rights to Share Your Content in connection with the Services, including to grant the license set forth in Section 6.2 (Your Grant of License). You shall be solely liable for any damage resulting from any infringements of any intellectual property or other proprietary rights, violation of contract, privacy, or publicity rights, or any harm resulting from Your Content. We have the right in our sole discretion to remove or block any of Your Content at any time where (a) Your Content violates applicable laws, regulations, orders, or is in violation of the Agreement, including the acceptable use policy; (b) removal or blocking is necessary because of exigent circumstances or to protect the safety, security, reputation, or integrity of the Services, us, or any third party; or (c) in order to respond to requests from law enforcement or any other governmental authority.
5.2. Inappropriate Content. You are solely responsible for all of Your Content that you Share. You must not Share any of Your Content on or through the Services that: (a) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, pornographic, offensive, or profane; (b) infringes or misappropriates any third-party’s intellectual property rights or other proprietary rights; (c) contains any viruses, worms or other malicious computer programming codes that may damage the Services; or (d) contains any Personal Information (as defined in the Privacy Policy).
5.3. Data Management and Backup. We are not responsible for and will not have any liability resulting from (a) any loss of, or the accuracy of, any Content; or (b) the failure to store, transmit, or receive transmission of any Content; You acknowledge that data conversion, processing and manipulation of Content are subject to the likelihood of human and machine errors, omissions, delays, and losses, including inadvertent loss of data or damage to media that may give rise to loss or damage. You should adopt reasonable measures to limit the impact of such problems, including backing up data, and adopting procedures to ensure the accuracy of data; examining and confirming results prior to use; and adopting procedures to identify and correct errors and omissions, replace lost or damaged media, and reconstruct data. You are also responsible for complying with all local, state, and federal laws pertaining to the use and disclosure of any data.
5.4. Sensitive Communications. While we employ measures to protect the privacy and security of your information, transmitting information over the internet and mobile networks is not entirely secure. Text messages and emails that you send to or receive from us outside of our Platform (including off-Platform communications with Network Providers) are not encrypted, which means they may be intercepted by third parties. If you choose to send or receive information about your health or any other sensitive information by text message or email outside of our Platform, you do so at your own risk. By opting to receive text messages, you consent to sending and receiving text messages to and from us that are not encrypted. Likewise, by emailing us or providing your email address, you consent to receive unencrypted email messages from or on behalf of us.
6. LICENSE GRANT AND OWNERSHIP.
6.1. Grant of License. Subject to your compliance with the Agreement, we grant to you a limited, royalty-free, worldwide, non-exclusive, non-transferable license to use and access the Services strictly in accordance with these Terms and for your personal use. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, or otherwise exploit the Services, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by us or our licensors, unless expressly granted in these Terms. Any unauthorized use automatically terminates the permissions and/or licenses granted by us to you. Some features may not be available on all devices.
6.2. Your Grant of License. You hereby grant to us a worldwide, non-exclusive, royalty-free, transferable, sublicensable, irrevocable, perpetual right and license to use, reproduce, perform, display, distribute, store, adapt, translate, modify, process, and create derivative works of all of Your Content, in whole or in part, for the purposes of (a) providing and operating the Services, performing support, and performing additional Services; and (b) improving the Services.
6.3. Testimonials. If you choose to provide us with any photographs or testimonials regarding your use of the Services, you hereby grant us a non-exclusive, royalty-free, perpetual license to use, publicly display, publish, store, and distribute such content on the Site or within any archive of user data.
6.4. Feedback. You hereby grant us a royalty-free, worldwide, irrevocable, perpetual license to use or incorporate into the Services, without restriction, any and all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you relating to any of the Services (“Feedback”). We will not publicly identify you as the source of such Feedback without your permission.
6.5. Usage Data. As between us and you, all data analytics, technical logs, learnings, and data generated from your use of the Services (“Usage Data”) is our sole and exclusive property. We will not disclose Usage Data externally unless it is (a) de-identified so that it does not identify you; and (b) aggregated with data across other Users.
6.6. Ownership. Except for the limited license granted to us under Section 6.2 (Your Grant of License), you solely own and retain all rights, title, and interest in Your Content. Notwithstanding anything to the contrary in this Agreement, you retain ownership and have full responsibility for Your Content, including its legality, reliability, and appropriateness, while using the Services. Except for the limited license granted to you pursuant to Section 6.1 (Grant of License), as between us and you, we solely own and retain all right, title, and interest in and to the Services and any content, features, and functionality (including, but not limited to, all information, software, text, displays, images, videos, audio, design, selection, and arrangement thereof), Usage Data, Feedback, AI Features (including those developed by or licensed to us), and our marks, including all associated intellectual property rights.
6.7. Trademarks. The Top Nutrition Coaching name, logo, trademarks, stylizations, graphics, service marks, and trade names used on or with the Services are our trademarks and may not be used without our express written permission. Other trademarks, service marks, and trade names that may appear on or in the Services are the property of their respective owners. You may not use our name or any language, pictures, or symbols that could, in our judgment, imply our endorsement in any (a) written or oral advertising or presentation, or (b) brochure, newsletter, book, or other written material of whatever nature, without our prior express written consent.
6.8. DMCA. 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 in good faith that materials appearing on the Site infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed or access to it blocked. In addition, if you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet statutory requirements imposed by the DMCA. In accordance with the DMCA, we have designated an agent to receive notification of alleged copyright infringement. Any written notification of claimed infringement should comply with Title 17, United States Code, Section 512(c)(3)(A) and should be provided in writing to Thrive Health Holdings, Inc., Attn: Legal – Copyright Infringement Notice, 2810 N. Church St. PMB 79505 Wilmington, DE 19802. We will promptly terminate the accounts of Users that are determined by us to be repeat copyright infringers.
7. ACCEPTABLE USE AND MONITORING.
7.1. Compliance with Laws and Regulations. You are responsible for complying with all applicable laws, rules, and regulations in all of your actions related to your use of the Services, regardless of the purpose of the use.
7.2. Conduct and Restrictions. You will not, and will not permit or enable any other third-party to:
(a) impersonate or misrepresent your identity or your affiliation with a person or entity;
(b) create more than one account or forge or manipulate headers or identifiers to disguise the origin of any content transmitted through the Platform;
(c) allow any unauthorized person to access your account or to receive the Services;
(d) harass, threaten, abuse, defame, demean, discriminate against, intimidate, or exhibit other harmful or disrespectful behavior toward Network Providers or our staff and relevant third parties providing Services to you;
(e) disrupt the care of other Users or violate the privacy rights of any person, including harvesting or collecting personal information or personal health information about any other individual who uses the Services;
(f) transmit or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail”, “chain letter”, or “spam” or any other similar solicitation;
(g) sell, resell, lease, lend, distribute, provide access to, sublicense, or otherwise make available the Services, in whole or in part, to a third-party;
(h) in any way alter, change, modify, adapt, translate or make derivative works of the Services;
(i) decompile, disassemble, or reverse engineer the Services or any elements of the Services, or otherwise derive source or object code or non-public APIs from the Services or any elements thereof;
(j) transmit any viruses or programming routines intended to damage, surreptitiously intercept, or expropriate any system, data or personal information;
(k) conduct security or vulnerability tests of the Services, interfere with its operation, or circumvent its access restrictions;
(l) use the Services to develop a product that competes with the Services or use the Services to provide, or incorporate the Services into, any substantially similar cloud-based service for the benefit of a third-party;
(m) do any “mirroring” or “framing” of any part of the Services, or create Internet links to the Services that include log-in information, user names, passwords, and/or secure cookies;
(n) sublicense or operate the Services for timesharing, rental, outsourcing, or service bureau operations, or to train persons;
(o) emove or obscure any proprietary or other notices contained in any Services;
(p) use the Services in violation of any of our agreements or policies;
(q) use the Services in violation of any applicable laws, including any purposes classified as “prohibited” or “high risk” under applicable laws, including AI regulatory requirements in various countries and regions; or
(r) access the Services by any means other than through the interfaces provided by us.
7.3. Monitoring. We may, but are not obligated to, investigate, monitor, pre-screen, remove, refuse, or review the Services and/or Content, at any time. You hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the Sharing of Your Content in any form.
7.4. Removal or Disclosure. We reserve the right, except to the extent prohibited by applicable law, to:
(a) remove or refuse to process any of Your Content for any or no reason in our sole discretion;
(b) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that Your Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of Users or the public, or could create liability for us;
(c) disclose any Content on or in the Services, including Your Content, in our possession or control in connection with your use of the Services, to (i) comply with applicable laws, legal process, or governmental request, (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property, or personal safety of us, our Users, or the public, and all enforcement or other government officials, as we in our sole discretion believe to be necessary or appropriate;
(d) take appropriate legal action, including referral to and cooperation with law enforcement and/or other applicable legal authorities, for any illegal or unauthorized use of the Services or if we otherwise believe that criminal activity has occurred; and/or
(e) terminate or suspend your access to all or part of the Services for any or no reason, including any violation of the Agreement. Upon determination of any possible violation by you of any provision of the Agreement, we may, at our sole discretion, immediately terminate your license to use the Services, or change, alter, or remove Your Content, in whole or in part, without prior notice to you.
8. THIRD-PARTY SERVICES.
8.1. Third-Party Websites, Applications and Ads. The Services use, connect with, and/or contain links to third-party websites, mobile apps, software, products, services, and advertisements for third parties, including connections with and to the Payment Processor and your email accounts (collectively, the “Third-Party Services”). We have no control over these Third-Party Services or their content and do not assume responsibility or liability for any content, opinions, or material available on them. Third-Party Services may include websites operated by third parties that we engage to provide certain services to you on our behalf. The Services may also contain data or other materials that are made available by third parties, or content that is based on such third-party data or other materials. You acknowledge that access to Third-Party Services, including your third-party email accounts, may be necessary to access certain features of the Services.
8.2. Disclaimer. WE DO NOT OWN THE THIRD-PARTY SERVICES OR THE CONTENT, OPINIONS, AND MATERIALS CONTAINED THEREIN. WE EXPRESSLY DISCLAIM, AND DO NOT ASSUME, ANY RESPONSIBILITY OR LIABILITY FOR ANY THIRD-PARTY SERVICES, OR ANY CONTENT, OPINIONS, OR MATERIAL AVAILABLE ON THIRD-PARTY SERVICES, OR SUCH THIRD-PARTY SERVICES’ PRIVACY PRACTICES WITH RESPECT TO INFORMATION THAT YOU PROVIDE VIA THE THIRD-PARTY SERVICES. WE DO NOT ENDORSE THE CONTENT OF ANY THIRD-PARTY SERVICES OR REPRESENT OR WARRANT THAT A THIRD-PARTY SERVICE IS OR WILL BE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL CODE THAT CAN IMPACT YOUR COMPUTER OR OTHER WEB-ACCESS DEVICE. WE ENCOURAGE YOU TO REVIEW ANY THIRD-PARTY SERVICE’S TERMS OF SERVICE AND PRIVACY POLICY, AS THOSE, AND NOT THE AGREEMENT OR THE PRIVACY POLICY, ARE APPLICABLE TO YOUR USE OF THE THIRD-PARTY SERVICE AND ANY INFORMATION THAT THEY COLLECT. BY USING THE SERVICES TO LINK TO A THIRD-PARTY SERVICE OR BY USING OR RELYING UPON THIRD-PARTY CONTENT, YOU AGREE THAT SUCH USE IS AT YOUR OWN RISK.
9. APPLE IOS APP.
9.1. Acknowledgement. If the Services that you use include a mobile application that you download, access, and/or use and that runs on Apple Inc.’s iOS system (an “iOS App”), you acknowledge that: (a) the iOS App may only be accessed and used on a device owned or controlled by you and using Apple’s iOS operating system; (b) these Terms are between you and us, and not with Apple; (c) Apple has no obligation at all to provide any support or maintenance services in relation to the iOS App, and if you have any maintenance or support questions in relation to the iOS App, please contact us, not Apple; (d) except as otherwise expressly set forth in these Terms, any claims relating to the possession or use of the iOS App are between you and us (and not between you, or anyone else, and Apple); (e) in the event of any claim by a third-party that your possession or use (in accordance with these Terms) of the iOS App infringes any intellectual property rights, Apple will not be responsible or liable to you in relation to that claim; and (f) although these Terms are entered into between you and us (and not Apple), Apple, as a third-party beneficiary under these Terms, will have the right to enforce these terms against you.
9.2. Your Representation. You represent and warrant that: (a) you are not, and will not be, located in any country that is the subject of a United States government embargo or that has been designated by the United States government as a “terrorist supporting” country; (b) you are not listed on any United States government list of prohibited or restricted parties; and (c) if the iOS App does not conform to any warranty applying to it, you may notify Apple, which will then refund the purchase price of the iOS App (if any) to you. Subject to that, and to the maximum extent permitted by law, Apple does not give or enter into any warranty, condition, or other term in relation to the iOS App and will not be liable to you for any claims, losses, costs, or expenses of whatever nature in relation to the iOS App or as a result of you or anyone else using the iOS App or relying on any of its content.
10. INDEMNIFICATION; DEFENSE.
10.1. Indemnification. You must indemnify, defend, and hold harmless us, our affiliates, subsidiaries, members, shareholders, officers, directors, employees, licensors, contractors, agents, and representatives (each, a “TNC Party” and collectively, the “TNC Parties”) against any and all claims, actions, causes of action, proceedings, losses, liabilities, damages, penalties, liens, fees (including reasonable attorney’s fees, expert fees, disbursements and costs of investigation), costs and expenses (collectively “Losses”) suffered, incurred or sustained by any TNC Parties or to which any TNC Parties become subject, resulting from or arising out of or relating to any third-party claims arising out of: (a) Your Content; (b) your use of, or inability to use, the Services; (c) your violation of any term of this Agreement; (d) your violation of any rights of another party, including the infringement, violation or misappropriation of any intellectual property rights or proprietary rights of a third-party; (e) your violation of any applicable laws, rules or regulations; and (f) your willful, grossly negligent, tortious or criminal acts or omissions.
10.2. Defense. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses. The applicable TNC Party will provide you with written notice of any claim for which it seeks indemnification under this Section 10 (Indemnification; Defense).
11. WARRANTIES.
11.1. Your Representations and Warranties. You represent and warrant to us that (a) Your Content does not infringe, violate, or misappropriate the intellectual property rights or proprietary rights of any third-party; (b) you have provided true and accurate information and will maintain the accuracy of such information; (c) you are physically located in and reside in the state indicated in the address you provided during the registration process, as Network Providers may be licensed to practice in specific states and can only provide services to users located in a state where they are licensed; (d) you will comply with all applicable laws, rules, and regulations; and (e) you satisfy and will continue to satisfy all eligibility requirements to use the Services, as such requirements may be revised or updated.
11.2. Disclaimer.
(a) THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS, ERRORS, BUGS, AND DEFECTS. WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SERVICES OR ANY PORTION THEREOF. WE HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING: (i) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT; (ii) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (iii) ANY WARRANTY THAT THE SERVICES WILL BE SECURE, ERROR-FREE, UNINTERRUPTED, TIMELY, OR WILL MEET YOUR REQUIREMENTS OR CONTAIN ANY PARTICULAR FEATURES OR FUNCTIONALITY.
(b) OUTPUTS MAY CONTAIN ERRORS, OMISSIONS, OR CONTENT THAT INFRINGES OR MISAPPROPRIATES THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS. WE HAVE NO OBLIGATION TO INDEMNIFY, DEFEND, OR HOLD YOU HARMLESS AGAINST ANY CLAIM ARISING FROM YOUR USE OF OR RELIANCE ON ANY OUTPUT. YOU ARE SOLELY RESPONSIBLE FOR EVALUATING THE ACCURACY, APPROPRIATENESS, AND LEGALITY OF ANY OUTPUT BEFORE USING OR RELYING ON IT, AND YOU ASSUME ALL RISK ASSOCIATED WITH ANY DECISION MADE OR ACTION TAKEN BASED ON ANY OUTPUT.
(c) WITHOUT LIMITING SECTION 12.3 (NO LIABILITY FOR CONDUCT OF THIRD PARTIES), WE DISCLAIM ANY AND ALL LIABILITY TO USERS ARISING OUT OF OR RELATING TO (I) THE RELATIONSHIP BETWEEN USER OR ANY THIRD-PARTY CONTACTING USER THROUGH THE SERVICES, (II) ANY THIRD-PARTY SERVICE, (III) THE PAYMENT PROCESSOR, AND (IV) YOUR CONTENT.
(d) WE ARE NOT A LICENSED HEALTH CARE PROVIDER OR NUTRITION SPECIALIST AND DO NOT PROVIDE MEDICAL, BEHAVIORAL HEALTH, OR HEALTH ADVICE OR DIAGNOSES. ANY MEDICAL ADVICE OR TREATMENT YOU RECEIVE IN CONNECTION WITH THE SERVICES IS PROVIDED BY NETWORK PROVIDERS, AND NOT BY US. ALWAYS SEEK PROFESSIONAL MEDICAL ADVICE REGARDING A MEDICAL OR MENTAL HEALTH CONDITION OR TREATMENT. FOR ADDITIONAL DETAIL, SEE SECTION 2.8 (PROVIDER RELATIONSHIP; NO CLINICIAN-PATIENT RELATIONSHIP).
(e) THE DISCLAIMERS SET FORTH IN SECTION 2.8 (PROVIDER RELATIONSHIP; NO DOCTOR-PATIENT RELATIONSHIP) ARE RESTATED AND INCORPORATED HEREIN. WITHOUT LIMITING THE FOREGOING, WE DO NOT ENDORSE ANY NETWORK PROVIDER, SPECIFIC TESTS, THERAPIES, PRODUCTS, CARE PLAN, OR PROCEDURES. WE SHALL NOT BE LIABLE FOR NEGLIGENT CREDENTIALING OR THE NEGLIGENCE OF ANY NETWORK PROVIDER. YOUR RELIANCE ON ANY NETWORK PROVIDER OR INFORMATION PROVIDED BY A NETWORK PROVIDER IS SOLELY AT YOUR OWN RISK.
(f) WE ARE NOT AN EMERGENCY-RESPONSE, EMERGENCY-MONITORING, OR CRISIS SERVICE. IF YOU ARE EXPERIENCING A MEDICAL OR MENTAL HEALTH EMERGENCY, DIAL "911" IMMEDIATELY. IF YOU ARE FEELING SUICIDAL OR IN EMOTIONAL CRISIS, CONTACT THE 988 SUICIDE & CRISIS LIFELINE BY DIALING OR TEXTING 988. DO NOT USE THE SERVICES FOR EMERGENCY OR URGENT SITUATIONS.
(g) WE ARE NOT A LAW FIRM AND DO NOT PROVIDE LEGAL ADVICE. THE PLATFORM MAY CONTAIN CONTENT THAT REFERENCES FEDERAL, STATE, AND LOCAL RULES REGARDING MENTAL HEALTH AND TELEHEALTH; HOWEVER, WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY, COMPLETENESS, CURRENCY, OR APPLICABILITY OF SUCH CONTENT. LAWS AND REGULATIONS REGARDING MENTAL HEALTH AND TELEHEALTH ARE CONSTANTLY EVOLVING, AND YOU SHOULD NOT RELY ON ANY CONTENT ON THE PLATFORM FOR LEGAL GUIDANCE. WE MAKE NO REPRESENTATION THAT ANY SERVICES PROVIDED BY A NETWORK PROVIDER OR TELEHEALTH SERVICES COMPLY WITH APPLICABLE LOCAL, STATE, OR FEDERAL LAWS.
12. LIMITATION OF LIABILITY.
12.1. Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TNC AND ANY THIRD-PARTIES VIA THE PLATFORM BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, COMMON LAW OR OTHER PROCEEDING OR ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), ATTORNEY’S FEES AND COSTS, OR OTHERWISE, FOR DAMAGES, COSTS OR EXPENSES OF ANY KIND WHICH, IN THE AGGREGATE, EXCEED THE LESSER OF (a) THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY YOU TO TNC DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE RESULTING IN SUCH LIABILITY; OR (b) FIVE HUNDRED U.S. DOLLARS (US $500). FOR AVOIDANCE OF DOUBT, THE LIMITATIONS SET FORTH IN THIS SECTION 12 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO YOUR OBLIGATION TO PAY FOR FEES DUE UNDER THIS AGREEMENT, IF ANY, OR YOUR OBLIGATIONS UNDER ANY OTHER AGREEMENT BETWEEN YOU AND TNC.
12.2. Exclusion of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TNC BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, ATTORNEY’S FEES AND COSTS, EXPERT FEES, BUSINESS INTERRUPTION, LOSS OF DATA, OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL.
12.3. No Liability for Conduct of Third Parties. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS AND OTHER THIRD PARTIES ON OR THROUGH THE SERVICES. THE TNC PARTIES ARE NOT LIABLE FOR THE CONDUCT OF OTHER USERS OR OTHER THIRD PARTIES, INCLUDING OPERATORS OF THIRD-PARTY SERVICES. WE DO NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF OTHER USERS OR THIRD PARTIES. WE MAKE NO WARRANTY THAT THE SERVICES OR PRODUCTS PROVIDED BY OTHER USERS AND THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS, OR REGARDING THE QUALITY, ACCURACY, TIMELINESS, COMPLETENESS, OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SERVICES.
12.4. Release. YOU HEREBY RELEASE AND HOLD HARMLESS TNC AND THIRD PARTIES FROM AND AGAINST ALL CLAIMS THAT YOU HAVE OR MAY HAVE AGAINST THEM FOR INFRINGEMENT, VIOLATION OF THE RIGHTS OF PRIVACY OR PUBLICITY, DEFAMATION, DISPARAGEMENT, PERSONAL INJURY, PROPERTY DAMAGE, NEGLIGENCE AND/OR ANY OTHER LEGAL THEORY ARISING FROM OR IN CONNECTION WITH THE SERVICES AND PRODUCTS OFFERED OR PROVIDED ON OR THROUGH THE SERVICES AND/OR THE RIGHTS AND PRIVILEGES GRANTED OR CONVEYED BY YOU UNDER THESE TERMS (INCLUDING, WITHOUT LIMITATION, THOSE RIGHTS AND PRIVILEGES RELATING TO YOUR CONTENT AND/OR ANY ELEMENTS, DERIVATIVES OR MARKETING OF THE FOREGOING). IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. IF YOU ARE NOT A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS UNDER ANY STATUTE OR COMMON LAW PRINCIPLE SIMILAR TO SECTION 1542 THAT GOVERNS YOUR RIGHTS IN THE JURISDICTION OF YOUR RESIDENCE.
12.5. Limitation on Time to File Claims. TO THE EXTENT PERMITTED BY LAW,ANY CLAIM ARISING IN CONNECTION WITH YOUR USE OF THE SERVICES MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE DATE OF THE EVENT GIVING RISE TO SUCH CLAIM. ANY CLAIM NOT BROUGHT WITHIN SUCH ONE (1) YEAR PERIOD SHALL BE PERMANENTLY BARRED. THIS LIMITATION APPLIES REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, AND REGARDLESS OF WHETHER THE PARTY KNEW OR SHOULD HAVE KNOWN OF THE CLAIM.
13. DISPUTES WITH OTHER USERS.
13.1. Disputes between Users. In the event of a dispute between you and another User or a third party, you should contact the other party and attempt to resolve the dispute. We are not responsible or liable for Your Content. You are solely responsible for Your Content, conduct, and interactions with other Users, both online and offline.
13.2. Release. Without limiting Section 12.4 (Release), you release us (and our officers, directors, agents, employees, contractors and affiliates) from any claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with disputes with other Users or third parties.
14. CONFIDENTIALITY.
14.1. Non-Disclosure. We may disclose or make available Confidential Information to you whether or not pursuant to this Agreement or through the Services. You must: (a) hold in confidence and safeguard our Confidential Information from unauthorized use, access, disclosure or processing using no less than a commercially reasonable degree of care at least as strict as the level of care used by you to protect your own confidential information; (b) not use or exploit the Confidential Information in any way except for the purposes of using the Services; and (c) not disclose or make available such Confidential Information (in whole or in part) to any person or entity. You are responsible for any and all breaches of the Agreement caused by third parties who gain access to Confidential Information through you. You must promptly report to us any actual or suspected violation of the Agreement and take all reasonable further steps to prevent, control or remedy any such violation.
14.2. Exclusions. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of your breach of the Agreement; (b) is obtained by you on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; or (c) you establish by documentary evidence was or is independently developed by you without using any of our Confidential Information.
14.3. Injunctive Relief. In addition to other relief, we may seek injunctive or other equitable relief for an actual or threatened breach of this Section.
15. TERM, TERMINATION AND SUSPENSION.
15.1. Term. This Agreement is effective as of the date you first accept it in accordance with Section 1 and continues until terminated by either party in accordance with this Section 15 (Term, Termination and Suspension) (the “Term”).
15.2. Termination for Convenience. You may terminate this Agreement or cancel your monthly Membership at any time for any reason (or no reason) prior to the expiration of the Term upon notice to us; provided you have completely fulfilled your payment obligations under this Agreement. For Membership cancellation procedures and refund terms, see Section 4.8 (Cancellation and Refunds).
15.3. Account Deactivation. You may deactivate your account and end your registration at any time by sending an email to support@topnutritioncoaching.com. Subject to applicable law, we reserve the right to maintain, delete, or destroy all communications and materials, including Your Content, posted or uploaded to the Site pursuant to our internal record retention and/or content destruction policies. After such deactivation, we will have no further obligation to provide any Services to you. For clarity, canceling a Membership will not operate to deactivate your account or the Terms governing your account. Following Membership cancellation (without account deactivation), you will retain access to your account and certain information maintained within it, such as personal health information, but you will no longer have access to Telehealth Services or any other Membership benefits. Full account deactivation will terminate all access to the Services and your account information, subject to our internal record retention policies and applicable law.
15.4. Suspension by Us. In addition to the rights set out elsewhere in this Agreement, we may suspend or terminate your access to your account or any of the Services, with or without notice, in the event that (a) you provide any information that is untrue, inaccurate, incomplete or not current, or we believe, in our sole discretion, that any information you provide is untrue, inaccurate, incomplete or not current; (b) you breach the terms of this Agreement; (c) we reasonably believe such action is necessary to protect the security or integrity of any of the Services or any data therein; or (d) your use of or access to the Services risks harm to the Services, other Users, or others or violation of law.
15.5. Refusal of Services on Fraud. In addition to the rights set forth in Section 15.4 (Suspension by Us), we may refuse to provide our Services and/or deactivate your account for any reason in our sole discretion, including where we suspect fraud or illegal activity. This includes, but is not limited to, the use of stolen payment information. We may, but do not assume the obligation, to request further information from you in connection with the Services. If you do not timely provide such information in the manner requested, we reserve the right to suspend, discontinue, or deny your access to and use of the Services until you provide the requested information.
15.6. Modification, Suspension or Discontinuance of Services. We reserve the right to change, suspend, or discontinue any of the Services for you, any or all Users, at any time, for any reason, including those laid out in our policies under the Agreement. We shall not be liable to you or any third party for any loss or damage that is caused by or arises from or in connection with any such changes, suspensions, or terminations.
15.7. Termination by Us. We may terminate this Agreement at any time, without cause.
15.8. Effect of Termination. Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
15.9. Effect of Cancellation. Upon cancellation of your Membership or other termination of this Agreement, all Services will end once cancellation or termination takes effect. You are solely responsible for arranging continuity of care with another healthcare provider if you cancel your Membership or if this Agreement is otherwise terminated.
15.10. Survival. All provisions of this Agreement that by their nature should survive termination will survive termination, including, but not limited to: license rights, ownership provisions, confidentiality, warranty disclaimers, indemnity, limitations of liability, dispute resolution, waiver of jury trial, arbitration, waiver of class and non-individual relief, and governing law, jurisdiction and venue.
16. DISPUTE RESOLUTION.
16.1. Applicability of Dispute Resolution. Subject to the terms of this Agreement, you and we agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services, or this Agreement and prior versions of this Agreement, including those that arose before the effective date of this Agreement or that may arise after its termination (each, a “Dispute”), will be resolved solely on an individual basis and not on a class, representative, collective, or mass action basis, and without a jury. This Section 16 (Dispute Resolution) also applies to Disputes between you and any Network Providers (collectively with us, the “Arbitral Parties”). The Network Providers are intended third-party beneficiaries of this Section 16 (Dispute Resolution), and references to the “parties” under this Section 16 (Dispute Resolution) shall be deemed to include the Network Providers, where applicable.
16.2. Binding Arbitration. Any Dispute will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement. The arbitration will be administered by National Arbitration and Mediation (“NAM”) and resolved before a single arbitrator. If NAM is not available to arbitrate, the parties will select an alternative arbitration provider. Except as modified by this Section, NAM will administer the arbitration in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedures, Fees For Disputes When One of the Parties is a Consumer, and the Mass Filing Dispute Resolution Rules and Procedures in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. The applicable NAM rules and procedures are available at www.namadr.com or by emailing National Arbitration and Mediation’s Commercial Department at commercial@namadr.com. If the amount in controversy does not exceed $10,000 and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents submitted by the parties to the arbitrator, unless the arbitrator determines that a hearing is necessary. If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, any party may request a hearing, which shall be via videoconference or telephone conference unless the parties agree otherwise. Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow this Agreement as a court would. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to us at: Thrive Health Holdings, Inc., Attn: Legal – Notice of Arbitration, 2810 N. Church St. PMB 79505 Wilmington, DE 19802.
16.3. Arbitration Exceptions. Notwithstanding the foregoing, 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 in the United States; (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) file a lawsuit in a court of law to address an intellectual property infringement claim.
16.4. Opt-Out. If you do not wish to resolve Disputes by binding arbitration, you may opt out of the provisions of this Section within thirty (30) days after the date on which you first agree to these Terms and commence using the Site (the “Opt-Out Date”) by sending an email to support@topnutritioncoaching.com, which specifies your full legal name, the email address associated with your account on the Site, and a clear, simple statement that you wish to opt out of arbitration (an “Opt-Out Notice”). Once we receive your Opt-Out Notice, this Section will be void with respect to your use of the Site and receipt of Services, and any Dispute will be resolved through individual litigation in the courts described in Section 17.6 (Governing Law and Venue). The remaining provisions of these Terms will not be affected by an Opt-Out Notice. If we receive your Opt-Out Notice after the Opt-Out Date, your Opt-Out Notice shall be void and have no legal effect.
16.5. Arbitration Location. If you are a resident of the United States, arbitration will take place in the county where you reside. If you are not a resident of the United States, arbitration shall be initiated in the County of New Castle, State of Delaware, United States of America, unless you and we otherwise agree or unless the designated arbitrator determines that such venue would be unreasonably burdensome to any party, in which case the arbitrator shall have the discretion to select another venue. For any arbitration conducted in Delaware, you and we agree to submit to the personal jurisdiction of any federal or state court in New Castle County, Delaware, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator, and in connection with any such proceeding, further agree to accept service of process by U.S. mail and hereby waive any and all jurisdictional and venue defenses otherwise available.
16.6. Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to NAM (or another arbitration provider selected in accordance with Section 16 (Dispute Resolution) if NAM is unavailable) against us and any arbitral party within reasonably close temporal proximity (“Mass Filing”), the parties agree (i) to administer the Mass Filing in batches of 100 demands per batch (to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands) with only one batch filed, processed, and adjudicated at a time; (ii) to designate one arbitrator for each batch; (iii) to accept applicable fees, including any related fee reduction determined by NAM (or another arbitration provider selected in accordance with Section 16 (Dispute Resolution) if NAM is unavailable) in its discretion; (iv) that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior batch of 100 is filed, processed, and adjudicated; (v) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by us and the claimants, shall only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; and (vi) that the staged process of batched proceedings, with each set including 100 demands, shall continue until each demand (including your demand) is adjudicated or otherwise resolved. Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable NAM rules and procedures for such selection, and the arbitrator will determine the location where the proceedings will be conducted. You agree to cooperate in good faith with us, applicable arbitral parties and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of combined reduced fees, set by NAM in its discretion, for each batch of claims. The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. Any disagreement between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a procedural arbitrator appointed by NAM. This “Batch Arbitration” provision shall in no way be interpreted as increasing the number of claims necessary to trigger the applicability of NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures or authorizing class arbitration of any kind. Unless we and any applicable arbitral party otherwise consent in writing, neither we nor any applicable arbitral party agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in Section 16.2 and this Section 16.6. If your demand for arbitration is included in the Mass Filing, any statute of limitation applicable to your claims will remain tolled until your demand for arbitration is decided, withdrawn, or is settled.
16.7. Informal Dispute Resolution. You and we agree that good faith informal efforts to resolve Disputes can result in a prompt, low-cost, and mutually beneficial outcome (“Informal Dispute Resolution”). You and we therefore agree that before either party commences arbitration or litigation (as applicable) against the other, the parties will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you must also participate personally.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which Conference shall occur within sixty (60) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to us that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to support@topnutritioncoaching.com or regular mail to our offices located at Thrive Health Holdings, Inc., 2810 N. Church St. PMB 79505 Wilmington, DE 19802. The Notice must include: (i) your name, telephone number, mailing address, email address associated with your account (if you have one); (ii) the name, telephone number, mailing address and email address of your counsel, if any; and (iii) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases. Unless all parties agree, multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration or litigation (as applicable). The statute of limitations and any filing deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
16.8. Waiver of Jury Trial. YOU AND TNC HEREBY VOLUNTARILY, KNOWINGLY, AND INTENTIONALLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY LAWSUIT, ACTION, OR PROCEEDING ARISING UNDER OR RELATING TO THE AGREEMENT. ALL DISPUTES SHALL BE DECIDED BY A JUDGE SITTING WITHOUT A JURY.
16.9. Waiver of Class and Other Non-Individualized Relief. TO THE EXTENT PERMITTED BY LAW,,YOU AND TNC AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, COLLECTIVE, OR MASS ACTION BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, REPRESENTATIVE, COLLECTIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE LITIGATED, ARBITRATED, OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Further, unless both you and we 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.
16.10. Injunctive Relief. Subject to this Agreement, the court or arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Notwithstanding anything to the contrary in this Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief, you and we agree that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the remaining claims and requests for relief. This section does not prevent you or us from participating in a class-wide settlement of claims.
16.11. Attorney’s Fees and Costs. The parties shall bear their own attorney’s fees and costs unless the court or arbitrator finds that either the substance of the Dispute or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or we need to invoke the authority of a court of competent jurisdiction to enforce this Section, then the party that obtains an order compelling compliance with this Section in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorney’s fees incurred in securing an order compelling compliance with this Section.
17. GENERAL PROVISIONS.
17.1. Electronic Communications. The communications between you and us may take place via electronic means, whether you visit the Services or send us emails, or whether we post notices on the Services or communicate with you via email. For contractual purposes, you (a) consent to receive communications from us in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we electronically provide to you satisfy any legal requirement that such communications would satisfy if they were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
17.2. Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without our prior written consent. We may, without your consent, freely assign and transfer this Agreement, including any of our rights, obligations, or licenses granted under this Agreement. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
17.3. Force Majeure. We will not be liable for any delay or failure to perform our obligations hereunder if such delay or failure arises from any cause or causes beyond our reasonable control, including, but not limited to, acts of God, flood, fire, loss of electricity or other utilities, epidemic, pandemic, act of a public enemy or terrorist, act of any military, civil, regulatory or governmental authority, change in law or regulation, labor problem or unavailability of supplies and any other cause, whether similar or dissimilar to any of the foregoing that could not have been prevented by us with reasonable care (“Force Majeure Event”). A Force Majeure Event does not excuse your payment obligations under this Agreement.
17.4. Questions, Complaints, Claims. If you have any questions, complaints, or claims with respect to the Services, please contact us at support@topnutritioncoaching.com.
17.5. Agreement Updates. When changes are made, we will make a new copy of the Agreement available on the Services and will update the “Last Updated” date at the top of this Agreement. If we make any material changes and you have registered an account, we will also send an email with an updated copy of this Agreement to the email address associated with your account. Unless otherwise stated in such update, any changes to this Agreement will be effective immediately for Users without an account and thirty (30) days after posting for Users with an account. We may require you to provide consent to the updated Agreement in a specified manner before further use of the Services is permitted. Any changes to this Agreement shall take effect prospectively. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU MUST STOP USING THE SERVICES.
17.6. Governing Law and Venue. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. EXCEPT FOR CLAIMS THAT MUST BE ARBITRATED PURSUANT TO SECTION 16 (DISPUTE RESOLUTION), ANY CLAIM OR DISPUTE ARISING IN CONNECTION WITH THE SERVICES SHALL BE DECIDED EXCLUSIVELY BY A COURT OF COMPETENT JURISDICTION LOCATED IN WILMINGTON, DELAWARE. YOU CONSENT TO THE PERSONAL JURISDICTION OF AND VENUE IN SUCH COURTS, AGREE TO ACCEPT SERVICE OF PROCESS BY MAIL, AND WAIVE ANY AND ALL JURISDICTIONAL AND VENUE DEFENSES OTHERWISE AVAILABLE. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
17.7. Relationship to Privacy Policy and Other Contracts. The Privacy Policy and any Supplemental Terms are part of the Agreement as set forth in Section 1 (Accepting this Agreement). To the extent these Terms conflict with the Privacy Policy, the Privacy Policy shall control. To the extent these Terms conflict with any Supplemental Terms or other specific agreement between you and us, such Supplemental Terms or specific agreement shall control.
17.8. Choice of Language. It is the express wish of the parties that this Agreement and all related documents have been drawn up in English.
17.9. Notice. Where we require you to provide an email address, you are responsible for providing us with a valid and current email address. In the event that the email address you provide to us is not valid, or for any reason is not capable of delivering to you any notices required by this Agreement, our dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to us at the following address: Thrive Health Holdings, Inc., 2810 N. Church St. PMB 79505 Wilmington, DE 19802. Such notice shall be deemed given when received by us by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
17.10. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17.11. Severability. If any portion of this Agreement is held invalid or unenforceable, that portion must be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions must remain in full force and effect.
17.12. Section Headings. Section headings are for convenience of reference only and shall not affect the interpretation of this Agreement.
17.13. Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List. By using the Services, you represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law. You acknowledge and agree that products, services, or technology provided by us are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer our products, services, or technology, either directly or indirectly, to any country in violation of such laws and regulations. The representations in this Section supplement and do not limit any similar representations in Section 9 (Apple iOS App).
17.14. Third-Party Beneficiaries. Except as expressly set forth in this Agreement, there are no third-party beneficiaries to this Agreement. Notwithstanding the foregoing, the Network Providers are intended third-party beneficiaries of Sections 11 (Warranties), 12 (Limitation of Liability), and 16 (Dispute Resolution) of this Agreement and shall have the right to enforce such provisions directly against you.
17.15. Entire Agreement. Subject to Section 17.7 (Relationship to Privacy Policy and Other Contracts), this Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
18. DEFINITIONS.
The following capitalized terms have the meanings set forth below. Additional defined terms are set forth in context within the Agreement.
18.1. “Agreement” has the meaning given in Section 1 (Accepting this Agreement).
18.2. “AI Features” means any tools, features, or functionality in the Services that may be offered by us from time to time that utilize artificial intelligence or machine learning technologies.
18.3. “Apple” means Apple Inc.
18.4. “Confidential Information” means all information disclosed by us or made available to you through the use of or access to the Services, whether tangible or intangible and in whatever form or medium provided.
18.5. “Content” means content featured or displayed through the Services, including documents, information, emails, data, text, artwork, audio, images, photographs, graphics, video, messages, tags, materials, and other items.
18.6. “Membership” means the recurring month-to-month arrangement under which you are charged the applicable Membership Fee.
18.7. “Platform” means the portal and associated infrastructure operated by us through which Users access the Services.
18.8. “Privacy Policy” means our privacy policy found at https://www.topnutritioncoaching.com/privacy-policy, as may be updated by us from time to time in our sole discretion.
18.9. “Services” means the Site, the Administrative Services, the Telehealth Services, the Platform, any mobile application, AI Features, API, or web service application enabled or made available by us.
18.10. “Share” (and its derivatives) means uploading, sharing, posting, emailing, transmitting, querying, commenting, or otherwise making available through or to the Services.
18.11. “Site” means the Top Nutrition Coaching website found at www.topnutritioncoaching.com.
18.12. “Third-Party Products” means any and all software, applications, data, APIs, or other products or services owned by third parties and licensed to us for use in connection with the Services and subject to contractual, regulatory, or other legal obligations.
18.13. “Third-Party Terms” means any and all agreements, terms, conditions, policies, and other requirements of a third-party provider of a Third-Party Product, each as may be required from time to time by the applicable third-party.
18.14. “User Content” means Content that is Shared by Users other than you.
18.15. “Users” means individuals who have visited or are using the Services.
