BY ENTERING INTO THIS AGREEMENT, YOU AND MEDIFAST ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION LAWSUIT AS DESCRIBED IN MORE DETAIL BELOW. THE SECTIONS ENTITLED 'LIMITATION OF LIABILITY', ‘DISCLAIMERS, 'WAIVER OF JURY TRIAL; RELEASE' AND ‘GOVERNING LAW; FORUM; CLASS ACTION WAIVER' (TOGETHER AS THE "DURABLE PROVISIONS") CONTAIN IMPORTANT LEGAL PROVISIONS. PLEASE READ THEM CAREFULLY. BY USING THE SITES OR MAKING A PURCHASE THROUGH THE SITES YOU AGREE TO BE BOUND TO THIS AGREEMENT AS IT MAY BE UPDATED FROM TIME TO TIME. USE OF THE SITES IS PERMITTED ONLY UNDER THE PROVISIONS OF THIS AGREEMENT. IF YOU DO NOT CONSENT TO THIS AGREEMENT YOU MAY NOT USE THE SITES.
1. ACCEPTABLE USE POLICY.
You may only use the Sites for lawful purposes and in accordance with this Agreement. Without limiting the generality of the foregoing, you will not use the Sites:
2. OUR COMMUNICATIONS TO YOU.
We may send you service-related announcements when we believe it is necessary to do so. Generally, you may not opt-out of these announcements, which are not primarily promotional in nature. If you do not wish to receive these announcements, you have the option to deactivate your account.
3. HEALTH INFORMATION.
By using of the 'Habits of Health' mobile application ("Application"), you consent to the disclosure of information you provide (and as may be gathered by the Application) to Medifast, including your: full name, date of birth, height, weight, E-email address, and any other information that is inputted manually, imported via mobile app or via linked device (i.e. Apple Watch, Apple Health, Samsung Health, Google Fit, etc.). This information may be used by Medifast to evaluate use of the Application and make enhancements to Medifast's customer experience.
The Sites provide weight loss management tools and related information and are intended only to assist users in their personal weight loss, health, wellness and fitness related efforts (the foregoing together as "Health Regimen"). Medifast is not a medical organization and our personnel cannot give you medical advice or diagnosis. Nothing contained in is or should be construed as such advice or diagnosis. The information and reports generated by us should not be interpreted as a substitute for physician consultation, evaluation, or treatment. You are urged and advised to seek the advice of a physician before beginning any Health Regimen. The Sites are intended for use only by healthy adult individuals. The Sites are not intended for use by minors, pregnant women, or individuals with any type of health condition. Such individuals are specifically warned to seek professional medical advice prior to initiating any form of Health Regimen. By using the Sites, you agree, represent and warrant that you have received consent from your physician to participate in a Health Regimen and the related activities made available to you in connection with the Sites, and that you have consulted with your physician before making any dietary changes based upon information available through the Sites. Everyone's condition and abilities are different, and participating in the activities promoted by our Sites and related Health Regimens is at your own risk. If you choose to participate in any Health Regimen in connection with the Sites, you do so of your own free will and accord, knowingly and voluntarily assuming all risks associated with such Health Regimen, including any risks of property damage, bodily injury, or death even if caused in whole or part by the action, inaction, or negligence of Medifast or by the action, inaction, or negligence of others. Certain Health Regimens promoted by the Sites may pose risks even to those who are currently in good health.
Your use of the Sites does not constitute or create a doctor-patient, therapist-patient or other healthcare professional relationship between you and Medifast.
Success stories posted by users or Medifast on our Sites may not represent typical or even accurate results obtained from any particular Health Regimen. To the extent permitted by applicable law, Medifast has no and assumes no obligation or liability associated with the accuracy, reliability or effectiveness of any Health Regimen recommendation contained in any success stories on the Sites.
The Sites are intended to provide you with information to encourage you to support your wellness and fitness activities. Some of the Sites may be aimed at tracking your physical movements and sleep activity ("Activity Tracking Services"). These Activity Tracking Services rely on sensors and/or GPS functionality that track your movement or body at rest. The data and information provided by the Activity Tracking Services are intended to be a representation of your activity, but may not be completely accurate, including with respect to step, sleep, speed, distance, or calorie data. By using Activity Tracking Services, you acknowledge and agree that Medifast is not responsible or liable for any inaccuracy in such data.
For more information, you should review the FAQ available at https://www.medifast1.com/faqs/general-information.
4. USER COMMENTS, FEEDBACK, AND OTHER SUBMISSIONS.
5. SITE CONTENT; INTELLECTUAL PROPERTY RIGHTS.
"Content" means any work of authorship or information, including without limitation, text, audiovisual materials, graphics, photos, videos, images, trademarks, documents, forms, commentaries, software (including all constituent components, such as source and object code, databases and their components), comments, opinions, testimonials, programs, postings, messages, files, images, photos, e-mail, or other information, data or materials.
All Content on this Sites is the property of Medifast and its licensors.
Subject to the provisions of this Agreement, Medifast hereby grants you a limited, revocable, non-sub-licensable license under the intellectual property rights licensable by us to download, view, copy, and print Content from the Sites solely for your personal, non-commercial use in connection with using the Sites; provided that the foregoing shall not apply to materials, services, or Content purchased through this Sites that are subject to separate licensing terms or agreements, which instead shall be governed thereby. No right, title, or interest in any downloaded materials or software is transferred to you as a result of any such downloading or copying as permitted herein. This Agreement shall not be interpreted as granting any licenses or transferring any rights in any Content except those expressly granted herein. Any rights not expressly granted in the Content are hereby reserved. Except as expressly permitted herein, you may not reproduce, publish, transmit, distribute, display, modify, or create derivative works from, sell, or participate in any sale of, or exploit in any way, in whole or in part, any of the Content, the Site, or any related software. You may not remove or alter any copyright and other proprietary notices from any Content or copies thereof.
The trademarks, logos, and service marks ("Marks") displayed on this Site, including "Medifast", "Medifast Weight Control Centers", and "OPTAVIA", as well as certain other marks used on the Site, are the registered trademarks of Medifast, its parents, subsidiaries, affiliates, and licensors. You are not permitted to use any Marks without the prior written consent of Medifast or the applicable mark owner or licensor.
6. DMCA COMPLIANCE AND COPYRIGHT INFRINGEMENT NOTICES.
The Digital Millennium Copyright Act (the "DMCA") permits anyone who believes in good faith that material available via the Sites infringes their copyright (a "Claimant") to send to our agent for notice of claims of copyright infringement ("Agent") a written notice requesting that we remove or block access to the infringing material ("Notice"). The Notice must include the following information:
(i) identification of the copyrighted work that is claimed to have been infringed;
(ii) a description of where on the Sites the allegedly infringing material is located;
(iii) information, if possible, sufficient to permit us to notify the individual who posted the allegedly infringing material;
(iv) Claimant's address, telephone number, and email address;
(v) a statement by Claimant that he or she has a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
(vi) a statement by Claimant, made under penalty of perjury, that the information in the notice is accurate and that Claimant is the copyright owner or authorized to act on the copyright owner's behalf; and
(vii) the electronic or physical signature of the Claimant.
The DMCA permits anyone who believes in good faith that a Notice of copyright infringement has been wrongly made against them to send our Agent a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA (see www.loc.gov/copyright). Notices and counter-notices should be sent to our Agent at:
Attn: Senior Staff Counsel
100 International Drive
Baltimore, MD 21202
Responses to Notices will be made in accordance with the requirements of the DMCA and within Medifast's sole discretion.
7. CHANGES TO SITES.
We may change, move, or delete portions of, or may add to, the Sites at any time without notice. From time to time, there may be information on our Site that contains typographical errors, inaccuracies, or omissions. We may correct errors, inaccuracies, or omissions and change or update information at any time without notice.
Notwithstanding the efforts made by Medifast to maintain the functionality and accuracy of the Content of the Site, to the fullest extent permitted by law, Medifast shall not be liable to you or to any third party (whether in tort, contract, equity, or otherwise) for any loss or damage arising out of or in connection with any use, reference to or reliance on the Content of the Site or any inaccuracies, omissions, misstatements or errors in the Content of the Sites.
8. LINKS TO OTHER SITES.
For your convenience and enjoyment, Our Site may provide links to websites that are not operated by Medifast (each as a "Third Party Site"). These links do not mean that Medifast endorses, approves, or sponsors the linked website or any information, products, or services contained in such website, nor is Medifast liable for any claims or any damage that might result from your use of such information, products, or services. Following any such links to any such websites is done at your sole risk.
9. MODIFICATIONS TO THIS AGREEMENT.
We may at any time revise any of the terms that comprise this Agreement by posting such revised terms on the Sites. We may inform you of such revised terms via any email address you provided us (if any), but regardless of whether or not such an email is received, the revised terms will be effective immediately upon posting and will thereby amend the terms of this Agreement. Continuing to use the Sites after such revised terms are posted constitutes acceptance of the revised terms.
NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, IF MEDIFAST MODIFIES ANY DURABLE PROVISION, ANY MODIFICATION WILL NOT APPLY TO ANY INDIVIDUAL DISPUTE THAT HAS ACCRUED PRIOR TO SUCH MODIFICATION.
MEDIFAST ENDEAVORS TO SECURE THE SITES BY UTILIZING COMMERCIALLY REASONABLE SECURITY PRACTICES, BUT IT CANNOT GUARANTEE THAT THE SITES WILL BE ERROR-FREE OR COMPLETELY SECURE.
THE SITES AND ALL CONTENTS HEREOF ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ARISING FROM A COURSE OF DEALING OR OTHERWISE, INCLUDING ANY WARRANTIES OF TITLE, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY AFFIRMATIVELY DISCLAIMED. MEDIFAST, INCLUDING ALL OF ITS AFFILIATES, HEREBY DISCLAIMS ANY AND ALL WARRANTIES IN CONNECTION THEREWITH EXCEPT FOR THE WARRANTIES EXPRESSLY MADE HEREIN. YOU ACKNOWLEDGE, BY YOUR USE OF OUR SITE, THAT YOUR USE OF OUR SITE IS AT YOUR SOLE RISK, THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS, LIABILITIES, RISKS AND DAMAGES ASSOCIATED WITH YOUR USE OF THE SITES OR ANY SERVICES OR PRODUCTS PURCHASED OR ACCESSED THROUGH THE SITES OR IN CONNECTION THEREWITH, AND THAT MEDIFAST SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES OF ANY KIND RELATED TO YOUR USE OF OUR SITE.
WITHOUT LIMITING THE FOREGOING, MEDIFAST AND ITS AFFILIATES DISCLAIM ANY AND ALL WARRANTIES CONCERNING THE ACCURACY, ADEQUACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF THE INFORMATION AND CONTENT CONTAINED ON THE SITES, THAT THE CONTENT WILL SATISFY ANY REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS, THAT ANY ERRORS IN THE CONTENT WILL BE CORRECTED, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE CONTENT AND INFORMATION. MEDIFAST IS NOT RESPONSIBLE FOR ANY OF THE ACTIONS OR OMISSIONS OF VISITORS.
11. GOVERNING LAW; FORUM; CLASS ACTION WAIVER.
This Sites are controlled by Medifast in the State of Maryland. As such, the laws of the State of Maryland will govern this Agreement, without giving effect to any principles of conflicts of laws.
You hereby irrevocably and unconditionally consent to submit to the jurisdiction of the State or Federal Courts located in the City of Baltimore, Maryland for any disputes, including any litigation (each a "Dispute"), arising out of or relating to this Agreement, your use of the Sites or any purchases made through the Sites. Further, you covenant not to commence any litigation relating thereto except in such courts and irrevocably waive any objection to such jurisdiction and venue, including any objection of forum non conveniens. Each party shall be responsible for their own expenses, costs, and attorney’s fees for any dispute arising out of or in connection to this Agreement.
YOU HEREBY KNOWINGLY AGREE THAT ANY PROCEEDING, IN COURT OR BEFORE ANY OTHER COMPETENT TRIBUNAL, INCLUDING AT ARBITRATION IF APPLICABLE, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. YOU HEREBY ACKNOWLEDGE THAT YOU ARE WAIVING YOUR ABILITY TO JOIN A CLASS ACTION AGAINST MEDIFAST IN CONNECTION WITH THE ANY CLAIM ARISING FROM OR RELATED TO SITES.
12. WAIVER OF JURY TRIAL; RELEASE
YOU AND MEDIFAST HEREBY WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE ARISING FROM OR RELATED TO THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
To the maximum extent permitted by applicable law, you hereby release Medifast from any and all claims, demands, losses, damages, rights, and actions of any kind including arising from or related to personal injury, death or property damage, that are directly or indirectly related to or arise from: (i) the actions and omissions of other Visitors and of Third Party Sites; or (ii) any of your interactions with other Visitors and Third Party Sites.
13. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NONE OF MEDIFAST OR ANY OF ITS AFFILIATES ARE, NOR WILL THEY BE, LIABLE FOR ANY DAMAGES OF ANY KIND, EXCEPT AS OTHERWISE SET FORTH HEREIN, ARISING FROM THIS AGREEMENT, OR FROM THE SITES INCLUDING ANY SERVICES OR MATERIALS MADE AVAILABLE THEREBY, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, SUCH AS, BY WAY OF EXAMPLE ONLY, LOST PROFITS, LOST REVENUE, LOST BUSINESS OPPORTUNITIES, LOSS OF DATA OR INTERRUPTION OF BUSINESS. UNDER NO CIRCUMSTANCES SHALL MEDIFAST'S MAXIMUM AGGREGATE LIABILITY TO YOU ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING IN CONNECTION WITH THE SITES, ALL PRODUCTS PURCHASED BY YOU FROM US AND ALL SERVICES AND CONTENT MATERIALS MADE AVAILABLE TO YOU IN CONNECTION WITH THE SITES) EXCEED THE GREATER OF (A) THE AMOUNTS YOU HAVE PAID TO MEDIFAST IN THE ONE (1) YEAR PERIOD BEFORE THE ACTION, OMISSION OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY AND (B) TEN DOLLARS ($10.00 USD).
THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF THE THEORY OF LIABILITY, AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, YOU SHALL REMAIN FULLY LIABLE TO US, WITHOUT EXCEPTION, FOR ANY BREACH, DEFAULT OR VIOLATION OF THIS AGREEMENT, AND YOUR USE OF THE SITES. YOU SHALL REMAIN FULLY LIABLE TO US WITHOUT EXCEPTION FOR ANY AND ALL LOSSES (DEFINED BELOW) INCURRED BY US IN CONNECTION WITH YOUR USE OF THE SITES.
REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, YOU MUST FILE ANY CLAIM, CAUSE OF ACTION OR OTHER DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR USE OF THE SITES WITHIN FOUR (4) YEARS AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR ELSE ANY SUCH CLAIM, CAUSE OF ACTION OR OTHER DISPUTE WILL BE DEEMED TO HAVE BEEN IRREVOCABLY WAIVED.
You will defend, indemnify, and hold harmless Medifast, its parents, subsidiaries and affiliates, the successors and assigns to each of the foregoing, and the directors, officers, owners, employees, agents, and/or representatives of each of the foregoing (the foregoing each as a "Medifast Indemnitee"), from and against any and all losses, claims, demands, causes of action or proceedings and any and all obligations, liability, damages, or expenses (including all costs, expenses, and attorney's fees; together as "Losses") imposed on, assumed by, incurred by or asserted against any Medifast Indemnitee in any way arising out of, relating to, or resulting from your violation of this Agreement.
15. PAYMENT AUTHORIZATION.
By making payment for purchases of Medifast's products, you certify that you are the owner of the debit card, credit card, or bank account that you submit to Medifast for all such purchases. You are solely responsible for all activity and purchases on your account with the Sites. You hereby authorize Medifast to initiate charges to your debit card, credit card, or bank account for all orders on your account, including any auto-ship orders, and any applicable sales tax, shipping and handling charges. Unless Medifast is notified otherwise by means of a submission on your online account on the Sites, this authorization will remain in effect. Any notification to terminate any such authorization must be done in a reasonable time thereafter (as judged within the reasonable discretion of Medifast) as may would allow your financial institution and Medifast a reasonable opportunity to terminate such authorization.
The foregoing authorization is an express agreement that Medifast shall not be liable for any overdraft or insufficient funds charges, such as finance charges and late fees, that are caused by your failure to maintain sufficient funds to pay Medifast for your purchases and charges hereunder or through the Sites. If there are insufficient funds in your account, it may result in Medifast charging reasonable service fees and/or interest in connection therewith.
16. PRODUCTS ARE FOR PERSONAL USE ONLY AND MAY NOT BE RESOLD.
Any purchase you make through the Sites must be for your own personal use and you will not resell Medifast or OPTAVIA products. Without the express prior written consent of Medifast you will not sell, resell, offer, display, or facilitate the selling, reselling, offering, or displaying of any Medifast-branded or OPTAVIA-branded products to any third party, in any manner, either directly or indirectly through any intermediary or third party platforms, including, but not be limited to, Amazon, online auction websites such as eBay, or any other e-commerce websites. These obligations and prohibitions continue even after any termination or cancellation of your relationship with Medifast.
Medifast reserves the right to cancel or refuse to process any orders within its sole discretion, including but not limited to orders that Medifast feels may be placed with an intent to resell and/or distribute.
17. TERM AND TERMINATION; SURVIVAL.
This Agreement applies to all access to and use of the Sites. It will continue as long as any Visitor or user accesses or uses the Sites. We may terminate this Agreement, all licenses and grants made hereunder, and your access to the Sites at any time. Terms that by their nature are intended to survive the termination of this Agreement shall survive such termination. Notwithstanding the foregoing, you may cease using the Sites at any time.
Unless otherwise specified, and except to the extent Medifast products or services are offered for the United States through Our Site, this Site and the Contents thereof are displayed solely for the purpose of promoting the Medifast's products and services available in the United States and select foreign markets. This Site is controlled and operated by Medifast from its offices located in the City of Baltimore, Maryland.
This Agreement does not confer any rights or remedies upon any person other than you and Medifast and their respective successors and permitted assigns. You may not assign or delegate this Agreement, in whole or in part, without the prior consent of Medifast and any such attempted assignment will be null and void ab initio.
You will comply with all applicable export laws, restrictions, and regulations of any United States or foreign agency or authority and will not export or re-export, or allow the export or re-export, of any product, technology or information obtained or acquired in connection with the Sites in violation of any such laws, restrictions or regulations. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. The section titles in this Agreement are for convenience only and have no legal or contractual effect. As used in this Agreement, the word "including" means "including but not limited to"; "or" shall mean "and/or"; whenever the context so requires, each pronoun or verb used herein shall be construed in the singular or the plural sense and each capitalized term defined herein and each pronoun used herein shall be construed in the masculine, feminine or neuter sense. If any provision of this Agreement shall for any reason be held to be void, voidable or unenforceable, then the remainder of this Agreement shall not be affected thereby, and shall remain in full force and effect. This Agreement constitutes the entire agreement of the parties and supersedes any prior written or oral agreements with respect to the subject matter hereof. No waiver hereunder shall be binding unless executed in writing by the party to be bound thereby. No writing that is required to be executed in order to be effective hereunder shall be effective unless executed by a duly authorized representative of such party. This Agreement shall not be construed as creating a joint venture or other business relationship. The construction of this Agreement shall not take into consideration the party who drafted or whose representative drafted any portion of this Agreement, and no canon of construction shall be applied that resolves ambiguities against the drafter of a document. Unless otherwise expressly specified, all amounts contemplated hereby are in US Dollars. Any notice or communication permitted or required by this Agreement shall be deemed effective on the date such notice is actually received via electronic mail to the email address set forth below:
If to Medifast, to:
100 International Drive
Baltimore, MD 21202
If to you: at any address provided by you, to us, as contact information, including email address.
If you have any questions or comments, please contact us using the tools at https://www.medifast1.com/support-tools/contact.
END OF AGREEMENT
Revised March 3, 2020