Terms of Service
|This Purchase and Operating Agreement (the "Agreement") is made and entered into by and between AverageHealth ("AverageHealth" or "we"), and you, ("you" or "Member") the party submitting an application to become an AverageHealth member. The terms and conditions contained in this Agreement apply to your participation with AverageHealth.com ("Program"). By submitting an application or participating, you expressly consent to all the terms and conditions of this Agreement.
Enrollment in the Program: You must submit a Program application and submit billing information from our website. You must accurately complete the application to become a member (and provide us with future updates) and not use any aliases or other means to mask your true identity or contact information.
Member also agrees to: Have sole responsibility for the development, operation, and maintenance of, and all content on or linked to, your Account/Media. Ensure that all materials posted on your Account/Media or otherwise used in connection with the Program (i) are not illegal, (ii) do not infringe upon the intellectual property or personal rights of any third party and (iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity or otherwise contains materials that AverageHealth informs you that it considers objectionable (collectively, "Objectionable Content"). Not make any representations, warranties or other statements concerning AverageHealth or Client or any of their respective products or services, except as expressly authorized herein. Make sure that your Media does not copy or resemble the look and feel of the Program Web Site or create the impression that your Media is endorsed by AverageHealth or Clients or a part of the Program Web Site, without prior written permission from us. Comply with all (i) obligations, requirements and restrictions under this Agreement and (ii) laws, rules and regulations as they relate to your business, your Account, Media or your use of the Links.
Confidentiality: Except as otherwise provided in this Agreement or with the consent of AverageHealth, you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you. Member shall not use any information obtained from the Program to develop, enhance or operate a service that competes with the Program, or assist another party to do the same.
Limited License & Intellectual Property: We grant you a nonexclusive, nontransferable, revocable right to use our content and to access our web site solely in accordance with the terms of this Agreement. You may not alter, modify, manipulate or create derivative works of the content or any AverageHealth graphics, creative, copy or other materials owned by, or licensed to, AverageHealth in any way. You are only entitled to use the content to the extent that you are a member in good standing of the Program. We may revoke your membership anytime by giving you written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of AverageHealth"s trademarks, service marks, copyrights, patents or trade secrets. You agree that AverageHealth may use any suggestion, comment or recommendation you choose to provide to AverageHealth without compensation. All rights not expressly granted in this Agreement are reserved by AverageHealth.
Termination: This Agreement shall commence on the date of our sign-up to our Program and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Program at any time by contacting us. We may terminate your participation in this Agreement at any time and for any reason which we deem appropriate with or without prior notice to you by providing you with a written notice. Upon termination of your participation in this Agreement for any reason, you will immediately cease all use of all AverageHealth or Client intellectual property, and will cease representing yourself as a AverageHealth member.
Fraud: You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, or exceed your permitted access to the Program. Such acts include, but are in no way limited to, using spyware, using steal ware, cookie-stuffing and other deceptive acts of fraud. AverageHealth shall make all determinations about fraudulent activity in its sole discretion.
Representations and Warranties: You hereby represent and warrant that this Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms and that you have the authority to enter into this Agreement. Subject to the other terms and conditions of this Agreement, AverageHealth represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to AverageHealth"s own business operations or AverageHealth"s proprietary products or services.
Modifications: In addition to any notice permitted to be given under this Agreement, we may modify any of the terms and conditions of this Agreement at any time by providing you with a notification by email. The changes will become effective ten (10) business days after such notice. If the modifications are unacceptable to you, you may terminate this Agreement without penalty solely on the account of such termination within such ten (10) business day period. Your continued participation in this Program ten (10) business days after a change notice has been posted will constitute your acceptance of such change.
Independent Investigation: You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the Program, guarantee or statement other than as set forth in this Agreement or on the Program.
Mutual Indemnification: Members hereby agrees to indemnify, defend and hold harmless AverageHealth and Clients and their respective subsidiaries, affiliates, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Member herein, (ii) any misuse by Member, or by a party under the reasonable control of Member or obtaining access through Member, of the Links, Offers or AverageHealth or Client intellectual property, or (iii) any claim related to your Media, including but not limited to, the content contained on such Media (except for the Links). AverageHealth hereby agrees to indemnify, defend and hold harmless Member and its subsidiaries, affiliates, partners, and their respective directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on a claim that AverageHealth is not authorized to provide you with the Links.
Disclaimers: THE PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO MEMBER "AS IS". EXCEPT AS EXPRESSLY SET FORTH HEREIN, AVERAGEHEALTH EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. AverageHealth DOES NOT WARRANT THAT THE PROGRAM OR LINKS WILL MEET MEMBER'S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE PROGRAM OR LINKS WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED. AVERAGEHEALTH EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES.
LEGAL DISCLAIMER: The content of the AverageHealth.com site, including text, graphics, images, information obtained from licensors, and other material ("Content") contained on the AverageHealth.com site, is intended for informational and educational purposes only and is not intended to replace the advice, diagnosis, or treatment recommendations of a doctor. AverageHealth.com disclaims any liability for the decisions you make based on this information. Always seek the advice of your physician or other qualified health care provider with any questions you may have regarding your health and wellness. Before beginning any exercise program, consult with your healthcare professional to design an appropriate exercise prescription and to avoid the potential harm of doing any inappropriate exercises for a particular problem. While medical research concludes that it is generally not necessary to see a health care provider before beginning every-day physical activities that are of light or moderate intensity, we encourage you to talk with your health care provider about your health and exercise as part of your regular visits. Read all nutrition labels and supplement labels before starting use, and ask your doctor about taking supplements before you start doing so. AverageHealth.com is not responsible for any of the content found on any other website pages linked to by www.averagehealth.com.
Limitation of Liability: IN NO EVENT SHALL AVERAGEHEALTH BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF AVERAGEHEALTH. IN NO EVENT WILL AVERAGEHEALTH BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT AVERAGEHEALTH HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. AVERAGEHEALTH'S CUMULATIVE LIABILITY TO MEMBER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNT PAID TO JOIN THE PROGRAM PRIOR TO SUCH CLAIM.
Governing Law & Miscellaneous: Member shall be responsible for the payment of all attorneys fees and expenses incurred by AverageHealth to enforce the terms of this Agreement. This Agreement contains the entire agreement between AverageHealth and Member with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Member may not assign all or any part of this Agreement without AverageHealth's prior written consent. AverageHealth may assign this Agreement at any time with notice to Member. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. The provisions of Section 3, 4(b), 6, 7, 8, 12-15 and any accrued payment obligations shall survive the termination of this Agreement. Except as set forth in the "Modifications" section above, this Agreement may not be modified without the prior written consent of both parties. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default.
By submitting an application, you affirm and acknowledge that you have read this Agreement in its entirety and agree to be bound by all of its terms and conditions. If you do not wish to be bound by this Agreement, you should not submit an application. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement. This Agreement was last revised on 05-01-2014.