Terms and Conditions
The Order Healthy mobile application and Web site located at www.orderhealthy.com (each, the "App") is a service of Xomniax LLC ("Order Healthy," "us" or "we"). The following terms and conditions ("Terms") govern your use of this App.
BY ACCESSING, VIEWING, OR USING THE CONTENT, MATERIAL, OR ANY SERVICES AVAILABLE ON OR THROUGH THIS APP, YOU INDICATE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS, THAT YOU AGREE TO THEM AND INTEND TO BE LEGALLY BOUND BY THEM. IF YOU DO NOT AGREE TO THESE TERMS, OR IF YOU ARE NOT AUTHORIZED TO CONTRACT, OR IF YOU ARE UNDER 18 YEARS OF AGE, OR IF YOU WERE PREVIOUSLY SUSPENDED FROM THE APP, YOU ARE NOT GRANTED PERMISSION TO USE THIS APP AND MUST EXIT IMMEDIATELY.
Order Healthy provides access to food ratings developed by Join the Challenge (the "JTC Food Ratings"). Please be advised that the JTC Food Ratings database and the JTC Food Ratings themselves have not been reviewed by persons with the expertise required to provide You with complete, accurate, or reliable information. In addition, the JTC Food Ratings are based on generic descriptions of food and beverage categories (e.g., fruit salad) and do not take into consideration the actual portion size, ingredients, method of preparation, or other characteristics of the specific food item that You may be evaluating or consuming. Further, the JTC Food Ratings system is programmed to generate a rating based on the description of the food item that You enter, but the system may generate an incorrect rating. ORDER HEALTHY DOES NOT (I) GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE JTC FOOD RATINGS; OR (II) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY SUCH NUTRITIONAL INFORMATION. UNDER NO CIRCUMSTANCES WILL ORDER HEALTHY BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON THE JTC RATINGS. You are solely responsible for any use of or reliance on the JTC Ratings.
In order to access certain content, services, products or benefits on the App, you will be asked to log-in to create an account. As part of this process, you will be asked to select a login and password. You are fully responsible for your account, including use of the account by any third party and maintaining the confidentiality of your password. You may access the App solely for your personal use in accordance with these Terms. You may not access this App in any manner or for any purpose prohibited by these Terms or that is otherwise unlawful, You may terminate your account at any time by contacting us at firstname.lastname@example.org. Order Healthy may terminate your account for any reason (or no reason). If Order Healthy terminates your account, you agree not to create another account without the express written consent of Order Healthy. You agree not to create an account for any other person than yourself without such person's consent and the consent of Order Healthy, and You agree not to transfer your account to any other person without prior permission from Order Healthy. You also agree that any information provided to Order Healthy will be accurate and that You will keep such information up to date.
Orders Placed and Delivered Through Third Party Delivery Site
Order Healthy provides information about merchants and restaurants but does not deliver food, beverages, or other products and is not the supplier of any food or beverage items or other products. You must also be a registered member of one of our third party delivery partners, such as Delivery.com ("Delivery Partners"). Once You select a merchant or restaurant from which You wish to order an item, You will be instructed to log in to your account with the applicable Delivery Partner, so you will know which Delivery Partner will be handling your order. That Delivery Partner will process the payment for Your order. The ordered item is then supplied to You by the restaurants or merchants that participate with that Delivery Partner. All questions or concerns regarding any product featured on the App should be directed to the participating restaurant or merchant that supplies that product directly, and all questions regarding delivery and payment should be directed to the applicable Delivery Partner. The availability, specifications, pricing, and delivery of products are all subject to the terms and conditions, privacy statement, and other policies on the Delivery Partner's website. The terms and conditions for Delivery.com are available for your review here. Order Healthy is not responsible for the accuracy or reliability of any information or content on any third party Delivery Partner site or app and We do not endorse any Delivery Partner, or any product or item supplied by a merchant or restaurant.
Alcoholic Beverages and/or Tobacco Products
By using the App to link to a Delivery Partner site or app to place an order for alcoholic beverages or tobacco products, you acknowledge and agree:
(A) that the U.S. Federal and State laws require that purchasers of alcoholic beverages be at least twenty one (21) years of age and alcoholic beverages may not be sold, delivered or given away to persons who are, apparently or actually, under the age of twenty one (21) years or visibly intoxicated; (B) that you are at least twenty one (21) years of age or older; (C) to provide valid photo identification at the time of accepting delivery of any alcoholic beverages and/or tobacco products; (Valid forms of identification are a valid driver's license or non-driver identification card issued by the Commissioner of Motor Vehicles, the Federal Government, a State Government, Commonwealth, Possession or Territory of the United States or a Provincial Government of Canada, a valid U.S. passport, a valid passport of any other country, or a valid military ID from the U.S. (NYS, ABC Law Section 65-b.2(b)); (D) that sale and delivery of alcohol beverages and/or tobacco products to you is made by the merchant member and not by Order Healthy; (E) that Order Healthy is a separate business and is not affiliated with any of the merchant members selling alcoholic beverages or tobacco; (F) that neither Order Healthy nor any of our affiliates or our or their partners, officers, directors, employees, shareholders or agents (collectively "Order Healthy Parties") shall have any liability to you or any third party in connection with purchase, sale, delivery and/or consumption of the alcoholic beverages and/or tobacco products or any consequences thereof; and (G) that, without limiting anything set forth in these Terms and in addition thereto, you shall indemnify and hold harmless Order Healthy Parties for, from and against any and all claims, demands, losses, costs and expenses (including the cost of any investigation and reasonable attorneys' fees), damages, obligations, deficiencies and liabilities, which arise, result from or are related to: (i) processing of order(s) for alcoholic beverage(s) and/or tobacco product(s); (ii) purchase of the alcoholic beverage(s) and/or tobacco product(s); (iii) delivery of the alcoholic beverage(s) and/or tobacco product(s); (iv) consumption of alcoholic beverage(s) and/or tobacco product(s), and/or (v) any and all consequences of any of the foregoing.
As between any user and Order Healthy, Order Healthy owns or licenses all data, content, audio clips, video clips, artwork, images, photographs, graphics, functional components, software and software concepts, documentation and other material on, in or made available through the App ("App Material"), as well as the selection, coordination, arrangement, and organization and enhancement of the App Material. All App Material is protected pursuant to United States copyright, trademark, patent and other applicable laws. You agree not to remove or alter any copyright notice or any other proprietary notice on any App Materials. As between any user and Order Healthy, all names, trademarks, service marks, certification marks, symbols, slogans or logos appearing on the App are proprietary to Order Healthy or its affiliates, licensors, suppliers or clients. Use or misuse of these trademarks is expressly prohibited and may violate federal and state trademark law. Under no circumstances will you have any rights of any kind in or to the App, other than the right to use the App in accordance with these Terms.
You agree not to modify, distribute, copy, exchange, disseminate, archive, reproduce, transmit, publicly display, publicly perform, broadcast, retransmit, publish by hard copy or electronic means, adapt, edit, compile or create derivative works of the App Material or otherwise use the App Material in any way for any purpose without prior written approval from Order Healthy. You may not frame, capture, harvest, collect, or create hypertext or other links or connections to any part of the App or App Materials without Order Healthy's prior written consent. You agree that you will not use the App for (a) any illegal or unauthorized purposes that violate any laws (including import, export and copyright laws); (b) modifying, adapting or hacking into the App or for modifying another website so as to falsely imply that it is associated with Order Healthy; (c) uploading, posting, hosting, or transmitting worms or viruses or any code of a destructive nature; (d) uploading or posting video clips that contain pornographic or obscene content; (e) contacting any other user of the App who has requested not to be contacted; (f) bullying, intimidating, stalking or harassing anyone; (g) transmitting unsolicited email, SMSs, "spam" messages; (h) publicizing or offering of any contest, giveaway, sweepstakes or promotion (i) any unlawful multi-level marketing, such as a pyramid scheme; (j) posting non-local or otherwise irrelevant User Content (as defined herein) or otherwise impose an unreasonable or excessively great amount of User Content on the App; (k) soliciting or accessing another user's account; or (l) attempting to gain unauthorized access to Order Healthy's computer system or engaging in any activity that interferes with the performance of, or impairs the functionality of the App or any services provided through the App. Crawling the App is permissible if done in accordance with the provisions of the robots.txt file, robots meta tags where available, and does not require login or authentication; provided, however, that crawling parts of the App which require login or authentication and scraping any part of the App without the prior consent of Order Healthy is expressly prohibited. You acknowledge and agree that the unauthorized use of the App Material could cause irreparable harm to Order Healthy and that, in the event of such unauthorized use, Order Healthy shall be entitled to an injunction in addition to any other remedies available at law or in equity. You agree to keep your contact information accurate and up-to-date.
Materials Submitted to the App.
We welcome comments about our App, and the App may allow you to contribute content, information, text, files, graphics, messages, and other materials and information for access, use, and commentary by other users to the App ("User Content"). Upon your submission of User Content or other material or information to Order Healthy, you grant Order Healthy a worldwide, perpetual, non-terminable, irrevocable, transferable, license to access, use, distribute, perform, reproduce, display, modify, create derivative works based upon, and sublicense, and to permit others to access, use, distribute, perform, reproduce, display, modify and create derivative works based upon the User Content, all without any compensation to you whatsoever. Order Healthy does not accept unsolicited ideas about new product, advertising, marketing or packaging ideas, concepts or improvements ("Ideas"). If you provide Order Healthy with any Ideas, such Ideas shall be considered non-proprietary and non-confidential, and shall become the exclusive property of Order Healthy, which may or may not use the Ideas for any purpose. The marketing staff of Order Healthy and its consultants may very well be considering an identical or similar Idea. The purpose of this policy is to avoid confusion about the ownership of new concepts and ideas. Termination of your account does not in any way limit Order Healthy's rights under this Section 7.
By sending or posting User Content, you represent that you have the full legal right to provide the User Content and that use of the User Content by the App and all other persons and entities will not (a) infringe any intellectual property rights of any person or entity or any rights of publicity, personality, or privacy of any person or entity, including as a result of your failure to obtain consent to post personally identifying or otherwise private information about a person; (b) violate any law, statute, ordinance, or regulation; (c) be defamatory, libelous or trade libelous, unlawfully threatening, or unlawfully harassing; (d) impersonate any person or entity or falsely state or otherwise imply an affiliation with a person or entity that is generally false, deceptive, misleading, deceitful, misinformative or constitutes a "bait and switch"; (e) be obscene, racist, unethical, child pornographic, or indecent; (f) violate any community or Internet standard; (g) contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data or personal information, or that facilitate or enable such or that are intended to do any of the foregoing; (h) constitute misappropriation of any trade secret or know-how; (i) be false or misleading; or (j) constitute disclosure of any confidential information owned by any third party.
Third Party Web Apps and Content.
Parties other than Order Healthy, including other users, may provide content on the App. Additionally, the App may contain links to other Internet Web sites for the convenience of users in locating information, products, or services that may be of interest. Use of the App and the App Materials and any other material or content on and made available through the App is entirely at your own risk. Order Healthy does not recommend and expressly disclaims any responsibility for the content, the accuracy of the information, or quality of products or services provided by or advertised on third party sites or the transactions you conduct or enter into with third parties. Your use of third parties' websites is at your own risk, and subject to the terms and conditions of such other websites. Order Healthy does not endorse any product, service, or treatment provided on a third party website or advertised on the App.
You agree not to use the App in any way that violates, or facilitates the violation of, the terms and conditions or privacy policies of any third party website, including but not limited to the terms and conditions and privacy policies of our Delivery Partners. Unless explicitly stated otherwise, nothing on the App is intended to imply any endorsement of the App by any third-party website.
Any personal information that you provide to Order Healthy on the App is subject to our Privacy Statement. For more information, click here to view the Privacy Statement, which is incorporated into these Terms by reference, as if set forth fully herein. Please be advised that the confidentiality of any communication or material transmitted to Order Healthy via the App or Internet electronic mail cannot be guaranteed, including, for example, personal information such as your address or name. Alternatively, you may contact Order Healthy by regular mail at P.O. Box 329 Old Westbury, NY 11568.
Order Healthy is not responsible for and does not guarantee the accuracy or completeness of any App Material, User Content, products, software, services, links, advertisements or other items contained within the App. Although not obligated to, Order Healthy may review, verify, make changes to or remove any App Material, User Content, the App or the products or services made available in connection with the App, including information posted to any App features at any time, with or without notice in its sole discretion. Order Healthy reserves the right to immediately remove any App Material or User Content for any reason or for no reason. You agree that you must evaluate and bear all risks associated with the use of App, App Material, User Content and that you may not rely on such App Material or any User Content.
THE APP, THE APP MATERIALS, USER CONTENT, SERVICES, PRODUCTS, INFORMATION AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE APP ARE MADE AVAILABLE "AS IS" AND "WITH ALL FAULTS." USE OF THE APP IS ENTIRELY AT YOUR OWN RISK. ORDER HEALTHY AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES, AND DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE APP, THE APP MATERIALS, USER CONTENT, THE SERVICES, PRODUCTS, INFORMATION AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE APP, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEMS INTEGRATION, NON-INTERFERENCE, QUALITY, TITLE, AND NON-INFRINGEMENT. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, COMPLETENESS AND EFFORT WITH REGARD TO ANY AND ALL APP MATERIALS, THE APP, AND THE SERVICES, PRODUCTS, INFORMATION AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE APP, IS WITH YOU.
ORDER HEALTHY AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, EXTRA-CONTRACTUAL, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, INCLUDING LOST REVENUES OR LOST PROFITS, WHICH MAY OR DOES RESULT FROM THE USE OF, ACCESS TO, OR INABILITY TO USE THE APP, THE APP MATERIALS, USER CONTENT, THE SERVICES, PRODUCTS, INFORMATION AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE APP, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT YOU OR ORDER HEALTHY HAD BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES, AND EVEN IF THE REMEDIES OTHERWISE AVAILABLE FAIL OF THEIR ESSENTIAL PURPOSE. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF ORDER HEALTHY, ITS LICENSORS, AND DELIVERY PARTNERS TO YOU OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH, BASED UPON, OR ARISING FROM THE APP, THE APP MATERIALS AND USER CONTENT, ON, IN AND MADE AVAILABLE THROUGH THE APP, OR THE SERVICES, PRODUCTS, SOFTWARE, INFORMATION OR OTHER MATERIALS OFFERED IN CONNECTION THEREWITH EXCEED THE PRICE PAID BY YOU DURING THE PRECEDING YEAR FOR USE OF THE APP. SOME STATES, INCLUDING NEW JERSEY, DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE TOTAL LIABILITY OF ORDER HEALTHY AND ITS LICENSORS SHALL NOT EXCEED TEN DOLLARS ($10). If you are dissatisfied with the App, or with any of these Terms, or feel Order Healthy has breached these Terms, your sole and exclusive remedy is to discontinue using the App.
You shall indemnify Order Healthy and its affiliates, and their respective directors, officers, employees, agents, contractors, licensors and clients ("Order Healthy Indemnitees") against all claims, actions, suits, and other proceedings ("Claims") arising out of or incurred in connection with the App, your fraud, violation of law, negligence, willful misconduct, or any other use of the App, the App Materials, User Content, the services, products, information and other materials on, in and made available through the App, or any breach by you of these Terms and shall indemnify and hold Order Healthy Indemnitees harmless from and against all judgments, losses, liabilities, damages, costs, and expenses (including reasonable attorneys' fees and attorneys' disbursements) arising out of or incurred in connection with such Claims. You may not settle any Claim without the prior written consent of Order Healthy. Order Healthy or its licensors may assume the defense of any Claim, at your sole cost and expense, and you shall cooperate in all reasonable respects in such defense. You shall have the right to employ separate counsel in any Claim and to participate in the defense thereof. If Order Healthy does not notify you that it elects to undertake the defense thereof, you shall have the right to defend the Claim with counsel reasonably acceptable to Order Healthy, subject to the right of Order Healthy to assume, at their sole cost and expense, the defense of any Claim at any time prior to the settlement or final determination thereof.
Order Healthy uses reasonable efforts to ensure that the App is generally available. However, there will be occasions when access to the App will be interrupted or unavailable. Order Healthy will use reasonable efforts to minimize such disruption where it is within our reasonable control. You agree that we shall not be liable to you for any modification, suspension or discontinuance of the App. You understand that the technical processing and transmission of any App content may be transferred unencrypted and involve (a) transmissions over various networks and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Please be advised that we do not guarantee that any information sent to or from our App will be secure during transmission, nor can we guarantee the confidentiality of any communication or material transmitted to Order Healthy via the App or the Internet, including, for example, personal information such as your name or address. By accepting these Terms You understand and agree that Order Healthy will not be responsible for any unauthorized access to and use of Your account.
If you believe that any content or postings on this App violates your intellectual property or other rights, please send to Order Healthy at email@example.com a comprehensive detailed message setting forth the following information: (a) your name and the name of your company, if any; (b) your contact information, including your e-mail address; (c) the nature and substance of your complaint, the specific rights at issue, and your basis for making the complaint, including the content or posting that is objectionable; and (d) the following statement: "The statements, representations, and assertions made in this message are true, complete, and accurate and I have the full legal authority to make each and every such statement, representation, and assertion and to make and be granted any demand made in this message."
Changes to these Terms; Termination.
Order Healthy reserves the right at any time to modify, alter or update these Terms. Notice of any new or revised Terms, as well as the location of the new or revised statement, will be posted on the App for at least twenty (20) days after the change. Your use of the App following any changes means that you agree to follow and be bound by the Terms as changed. Any change to these Terms shall be effective as to any visitor who has visited the App before the change was made. It is the obligation of users visiting the App before the change to learn of changes to the Terms since their last visit.
Order Healthy may suspend or terminate your account and/or your ability to use the App or any services on the App for failure to comply with these Terms, for providing Order Healthy with untrue or inaccurate information about yourself, for infringement upon Order Healthy proprietary rights, or for any other reason whatsoever or for no reason.
These Terms represent the entire agreement between you and Order Healthy with respect to the subject matter hereof, and supersede any and all prior and contemporaneous written and oral representations, understandings, and agreements, express and implied, and will be governed by and construed in accordance with the laws of the State of New York, without reference to its conflict of law rules; PROVIDED, HOWEVER, THAT THE TERMS OF ANY APPLICABLE LAW NOW OR HEREAFTER ENACTED THAT IS BASED ON, DERIVED FROM, SIMILAR TO, OR CONNECTED WITH THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT DRAFTED BY THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS SHALL NOT APPLY EXCEPT TO THE EXTENT THAT THE LAW EXPRESSLY PROHIBITS ALTERATION BY THESE TERMS OF THE APPLICABILITY OF ONE OR MORE SECTIONS OF THE LAW.
Any dispute relating in any way to your visit to or use of the App shall be submitted to confidential arbitration in New York, New York, except that to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of New York. You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of New York. Arbitration under these Terms shall be conducted pursuant to the Commercial Arbitration Rules then prevailing at the American Arbitration Association. The arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Terms shall be joined to an arbitration involving any other party subject to these Terms, whether through class action proceedings or otherwise. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the App or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever banned.
Without limiting anything else, Order Healthy makes no representation that the App, App Materials, User Content, services, products, information or other materials available on, in, or through the App is appropriate or available for use outside the United States, and access to them from territories where they are illegal is prohibited. Those who choose to access the App from outside the United States do so on their own volition and are responsible for compliance with applicable laws. The waiver or failure of Order Healthy to exercise in any respect any right provided hereunder shall not be deemed a waiver of such right in the future or a waiver of any of other rights established under these Terms. Headings used in these Terms are for reference only and shall not affect the interpretation of these Terms. No person or entity not party to these Terms will be deemed to be a third party beneficiary of these Terms or any provision hereof. When used herein, the words "includes" and "including" and their syntactical variations shall be deemed followed by the words "without limitation." If any these provisions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed several and shall not affect the validity and enforceability of any remaining provision.
Dated: June 24, 2016
© 2016 Xomniax LLC; All rights reserved.