TERMS AND CONDITIONS OF USE FOR THE NOURISH INTERACTIVE, INC. SERVICES AND WEB SITE

 

Nourish Interactive Inc. ("Nourish Interactive Inc.") may revise and update these Terms and Conditions at any time. Your continued usage of the Nourish Interactive Inc. website ("Nourish Interactive Inc. Site," or the "Site,") will mean you accept those changes.

 

Thank you for your interest in the Nourish Interactive, Inc, a free online nutrition education program. The Nourish Interactive, Inc. takes the latest USDA American Food Guidelines and teaches children about these guidelines via an interactive video game.

 

After signing up for a free account, you'll gain full access to the complete game that individually tracks your child’s progress. It provides a fun and convenient way for your child to learn about nutrition and exercise at his or her own pace. Parents will receive progress reports as the child completes a level. These individual reports are designed to keep you abreast of the important concepts your child is learning and provide support for introducing these concepts into family life. You can play the demo version of the game for free. The demo version of the game provides two complete levels of play. However, to gain full access to the entire game, you will be required to create a free user account. This is required so that the game can track the child's progress and provide you with the progress reports.

 

Nourish Interactive, Inc. details and terms of membership are provided below, so please take a moment to review them before you sign up!

 

The contents of the Nourish Interactive Inc. Site, such as text, graphics, images, information obtained from Nourish Interactive Inc.'s licensors, and other material contained on the Nourish Interactive Inc. Site ("Content") are for informational purposes only. The Content is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on the Nourish Interactive Inc. Site!

Reliance on any information provided by Nourish Interactive Inc., Nourish Interactive Inc. employees, others appearing on the Site at the invitation of Nourish Interactive Inc., or other visitors to the Site is solely at your own risk.

 

Nourish Interactive, Inc. ("Nourish Interactive, Inc.", "us", "our", "we ") maintains this Internet site together with other Internet sites ("Sites") as a service to you and the Internet community. Unless otherwise noted, the Content is the property of Nourish Interactive, Inc. and protected by United States and international intellectual property laws. As a user of the Sites, you agree that you shall download and/or use Content solely for your personal, non-commercial use. You agree to all of the terms and conditions set forth herein and will not use the Sites until and unless you have agreed to these terms and conditions. You may not use the Content in any matter inconsistent with this Agreement ("Agreement") or applicable law, and you may not copy, modify or alter the Content without Nourish Interactive Inc. express prior written consent.

 

We are committed to protecting the privacy of children. You should be aware that this Site is intended or designed to attract children under the age of 13. We do not collect personally identifiable information from any person we actually know is a child under the age of 13. In your use of the Site you must be read and be compliant with the Children’s Online Privacy Protection Act of 1998.

 

Nourish Interactive Inc. authorizes you to view or download a single copy of the material on the Nourish Interactive Inc. Site solely for your personal, noncommercial use if you include the following copyright notice: "Copyright (c) 2006, Nourish Interactive Inc., All rights reserved" and other copyright and proprietary rights notices that are contained in the Content. Any special rules for the use of certain software and other items accessible on the Nourish Interactive Inc. Site may be included elsewhere within the Site and are incorporated into these Terms and Conditions by reference.

The Content is protected by copyright under both United States and foreign laws. Title to the Content will remain with Nourish Interactive Inc. or its licensors. Any use of the Content not expressly permitted by these Terms and Conditions is a breach of these Terms and Conditions and may violate copyright, trademark, and other laws. Content and features are subject to change or termination without notice in the editorial discretion of Nourish Interactive Inc. All rights not expressly granted herein are reserved to Nourish Interactive Inc. and its licensors.

If you violate any of these Terms and Conditions, your permission to use the Content automatically terminates and you must immediately destroy any copies you have made of any portion of the Content.

 

 

 

THE CONTENT AND OTHER INFORMATION PRESENTED ON THE SITES ARE FOR EDUCATIONAL PURPOSES ONLY. THE CONTENT IS NOT INTENDED AS A SUBSTITUTE FOR MEDICAL COUNSELING. NOURISH INTERACTIVE, INC. RESERVES THE RIGHT TO CANCEL YOUR MEMBERSHIP SHOULD YOU VIOLATE THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY OTHER POSTED POLICY ON THE SITES.

 

The process of becoming a member of the Sites (a "Member") requires entry of certain personal information and, among other conditions of membership, agreement with these Terms and Conditions in order to gain access to the Sites.

 

You are advised that health, diet & fitness advice is often subject to updating and refining due to medical research and developments. No assurance can be given that the Content will reflect the most recent findings or developments with respect to the particular material. You are encouraged to consult with your health care provider with any questions or concerns you may have regarding any health condition.

 

 

 

Message Boards on the Sites will contain information that can be posted and viewed by anyone on the Sites and the Internet. Nourish Interactive, Inc. does not endorse any information posted on the Message Boards. Please consult a physician or other relevant expert (depending on the nature of the information) before practicing anything you read on the Message Boards or using any information from the Message Boards. Nourish Interactive, Inc. is not responsible for the information posted on the Message Boards or for editing any factual errors or making any type of corrections to information presented on the Message Boards. Any action taken by a viewer of the Message Boards based on information presented on the Message Boards is at your own risk and could be dangerous or life threatening.

 

In using our Message Boards you agree to follow our Community Guidelines that includes these provisions:

 

Respect everyone's opinions. Even though you might not agree with someone, that doesn't mean they are wrong or deserve to be belittled. Remember that what works for you may not work for everyone else. Give everyone the same courtesy you would expect in return. No profanity or explicit content. No posts, including pictures that might be considered "inappropriate". No posts that could be interpreted as threatening or harassment. No third party solicited advertising or product promotion is permitted (although you may recommend third party products). Nourish Interactive, Inc. has the right to remove a post if it does not meet these standards, but does not have the obligation to do so. You have the right to edit any of your posts. If you have started a thread (such as a journal) that you want to close, please post a message indicating "THREAD CLOSED". We do not typically delete threads on request. Understand that posts made by members do not necessarily reflect the views of Nourish Interactive, Inc. and should not be taken as medical advice. Posts submitted to the Sites' Message Boards are not considered confidential. Nourish Interactive, Inc. may use these posts for any purpose without requiring permission from the originator.

 

Some of our members will make their email addresses available if they wish to converse with others users with similar interests and/or goals. If you use this information, you agree not to transmit "spam" or other unwanted solicitations, or any material that is harassing, threatening, racially offensive, obscene, abusive, harmful, defamatory, invasive of another's privacy, infringing of another's intellectual property rights, or illegal. Members found using email information in this manner may, at the sole discretion of Nourish Interactive, Inc., have their Membership cancelled without notice. Nourish Interactive, Inc. is not responsible for the content of email messages sent by its members or from a third party.

 

Notwithstanding anything to the contrary herein, Nourish Interactive, Inc. has no obligation whatsoever to monitor any of the content or postings on the Message Boards or other public forums on the Sites. However, you acknowledge and agree that we have the absolute right to monitor the same at our sole discretion. In addition, we reserve the right to alter, edit, refuse to post or remove any postings or content, in whole or in part, for any reason and to disclose such materials and the circumstances surrounding their transmission to any third party in order to satisfy any applicable law, regulation, legal process or governmental request and to protect ourselves, our Members, sponsors, users and visitors.

 

Materials posted and/or uploaded to the various public forums may be subject to size and usage limitations. You are responsible for adhering to such limitations.

 

Nourish Interactive Inc. may provide links to third-party web sites. Nourish Interactive Inc. also may select certain sites as priority responses to search terms you enter and Nourish Interactive Inc. may agree to allow advertisers to respond to certain search terms with advertisements or sponsored content. Nourish Interactive Inc. does not recommend and does not endorse the content on any third-party websites. Nourish Interactive Inc. is not responsible for the content of linked third-party sites, sites framed within the Nourish Interactive Inc. Site, third-party sites provided as search results, or third-party advertisements, and does not make any representations regarding their content or accuracy. Your use of third-party websites is at your own risk and subject to the terms and conditions of use for such sites. Nourish Interactive Inc. does not endorse any product advertised on the Nourish Interactive Inc. Site. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties on the Sites or on sites that are linked to the Sites, including information providers, are those of the respective third parties, and not Nourish Interactive, Inc. Nourish Interactive, Inc. does not guarantee the accuracy, completeness, or usefulness of any third party content. Furthermore, Nourish Interactive, Inc. neither endorses nor is responsible for the accuracy and reliability of any opinion, advice, or statement made on any of the Sites or on any site that might be linked to the Sites by anyone other than authorized Nourish Interactive, Inc. representatives acting in their official capacity.

 

 

 

A. MINIMUM AGE REQUIREMENT:

 

i. You must be at least 18 years of age to open an account. All children registered accounts require an associated parental/legal guardian account.

 

B. PERSONALLY IDENTIFIABLE INFORMATION:

 

i. At certain points in using the Sites, you will be asked to provide information to us. Nourish Interactive, Inc. collects two types of information from you, personally identifiable and non-personally identifiable. The personally identifiable information that we collect may include but is not limited to, your first and last names. Non-personally identifiable information we collect includes, but is not limited to, your email address. For information regarding Nourish Interactive, Inc.'s privacy policy see our privacy policy. You agree that you have read and understand this privacy policy and that you shall be bound by its terms and conditions as part of this Agreement.

 

ii. You agree that as part of the service provided on the Sites, you shall receive periodic email communications from Nourish Interactive, Inc. You affirmatively consent to receive those emails without regard to any previous request you might have made to opt-out of receiving additional emails.

 

C. SUBMISSION POLICY: By sending or transmitting to us creative suggestions, ideas, notes, concepts, information, or other materials (collectively, " Submission Materials") or by posting such Submission Materials on the Sites, you hereby grant to us and our designees a worldwide, non-exclusive, sub-licensable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import such Submission Materials in any media now known or hereafter devised, for any purpose whatsoever, commercial or otherwise, without compensation to you, the provider of the Submission Materials. The foregoing license to Nourish Interactive, Inc. shall be considered fully paid-up and royalty free. In addition, under no circumstances shall Nourish Interactive, Inc. have any obligation whatsoever to pay a fee to any subscriber or user in connection with the Submission Materials upon the occurrence of a transfer of all or any portion of Nourish Interactive, Inc.’s business through a merger, sale, transfer or license of all or substantially all of the assets of Nourish Interactive, Inc., nor shall the sale or barter of advertising or sponsorship on any of the Sites or any other product sales give rise to any obligation to pay a fee to Subscribers.

 

None of the Submission Materials disclosed or posted via message boards, chats or other public forums shall be subject to any obligation, whether of confidentiality, attribution, or otherwise, on Nourish Interactive, Inc.’s part and we shall not be liable for any use or disclosure of any such Submission Materials.

 

D. ACCOUNTS, PASSWORDS and SECURITY: If any of the Sites require you to open an account, you must complete the registration process by providing Nourish Interactive, Inc.

 

As part of the registration process, you will be asked to select a username and password. You are entirely responsible for maintaining the security and confidentiality of your account and password. FURTHERMORE, YOU ARE ENTIRELY RESPONSIBLE FOR ANY AND ALL ACTIVITIES AND CONDUCT, WHETHER BY YOU OR ANYONE ELSE, THAT ARE CONDUCTED THROUGH YOUR ACCOUNT. You agree to notify Nourish Interactive, Inc. immediately of any unauthorized use of your account or any other breach of security. Nourish Interactive, Inc. will not be liable for any loss or damages of any kind that may arise as a result of someone else using your password or account, either with or without your knowledge. However, you may be held liable for any losses incurred by Nourish Interactive, Inc. or another party due to someone else using your account or password.

 

E. PROMOTIONS: Nourish Interactive, Inc. occasionally provides contests, sweepstakes, games and other Nourish Interactive, Inc. or third party promotions on its Sites. The rules, regulations and procedures governing any of the foregoing promotions shall be accessible through a hyperlink displayed on the web page where the applicable promotion is located. By entering or participating in any of them, you agree to be subject to those rules, regulations and procedures. Please remember to read the rules carefully before participating.

 

F. LIMITED LICENSE: Nourish Interactive, Inc. grants to you a limited personal, non-exclusive and non-transferable right and license to access the Sites and use the Services thereon. Unless otherwise specified in writing, the Services are for your personal and non-commercial use.

 

G. PROHIBITED ACTIVITIES: In connection with your use of the Sites, you acknowledge and agree that you will not:

i. copy, reverse engineer, reverse assemble, otherwise attempt to discover the source code, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information, software, products or services obtained through the Sites;

ii. access the Sites by any means other than through the standard industry-accepted or Nourish Interactive, Inc.-provided or authorized interfaces;

iii. transmit any message, information, data, text, software or image, or other content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable which may invade another's right of privacy or publicity;

iv. impersonate any person or entity, including without limitation, a Nourish Interactive, Inc. official, forum leader, chat room monitor, guide or host, or falsely state or otherwise misrepresent your affiliation with such a person or entity;

v. post or transmit any material that contains a virus or corrupted data;

vi. delete any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature;

vii. use any of the Sites' communications features in a manner that adversely affects the availability of its resources to other users (e.g., excessive shouting, use of all caps, or flooding continuous postings of repetitive text);

viii. post or transmit any unsolicited advertising, promotional materials, "junk mail", "spam," "chain letters," "pyramid schemes" or any other form of solicitation information such as opinions or notices, commercial or otherwise;

ix. violate any applicable local, state, national or international law;

x. upload or transmit any material that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;

xi. delete or revise any material posted by any other person or entity;

xii. manipulate or otherwise display the Sites by using framing or similar navigational technology;

xiii. register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any party for any Nourish Interactive, Inc. product or service if you are not expressly authorized by such party to do so; or

xiv. use the Sites for any purpose that is unlawful or prohibited by these terms and conditions. You may not use the Site in any manner that could damage, disable, overburden or impair Nourish Interactive, Inc.’s servers or networks, or interfere with any other user's use and enjoyment of the Sites. Furthermore, you may not attempt to gain unauthorized access to any of the Sites, services, accounts, computer systems or networks connected to Nourish Interactive, Inc. through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Sites.

 

H. DISCLAIMER OF WARRANTIES: THE SITES, AND ANY CONTENT, TOOLS, PRODUCTS OR SERVICES DISPLAYED, ACCESSED OR OBTAINED ON OR THROUGH THE SITES AND SERVICES ARE PROVIDED "AS IS", "AS AVAILABLE", AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NOURISH INTERACTIVE, INC. AND ITS AFFILIATES, SUPPLIERS AND AGENTS DO NOT WARRANT AND EXPRESSLY DISCLAIM THAT: (i) YOUR USE OF THE SITES AND ACCESS TO AND USE OF ALL OF THE TOOLS AND FEATURES THEREON WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, (ii) THAT ANY INFORMATION OBTAINED THEREIN IS ACCURATE, RELIABLE OR COMPLETE, (iii) THAT DEFECTS WILL BE CORRECTED, (iv) THAT THE SITES SHALL BE AVAILABLE WITHOUT DELAY, FAILURE, INTERUPTION OR CORRUPTION DUE TO LOCAL EXCHANGES, INTER-EXCHANGES, CARRIER LINES, ROUTES, SWITCHES AND OTHER EQUIPMENT OWNED BY THIRD-PARTIES or (v) THAT ANY SOFTWARE, SERVICES, SITES OR SERVER(S) ON WHICH THE SITES ARE HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE SITES AND ANY INFORMATION OR MATERIALS PROVIDED ON OR THROUGH THE SITES IS ENTIRELY AT YOUR OWN RISK.

 

I. RELEASE AND INDEMNIFICATION: YOU AGREE THAT NEITHER NOURISH INTERACTIVE, INC., NOR ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONSULTANTS, CONTENT PROVIDERS, PARTNERS OR SUPPLIERS ("RELEASED PARTIES"), SHALL HAVE ANY LIABILITY TO YOU UNDER ANY THEORY OF LIABILITY OR INDEMNITY IN CONNECTION WITH YOUR USE OF THE SITES. YOU FURTHER AGREE TO HEREBY AND FOREVER RELEASE AND WAIVE ANY AND ALL CLAIMS YOU MAY HAVE AGAINST ANY RELEASED PARTIES FOR ANY AND ALL CLAIMS, CAUSES, DAMAGES OR LOSSES UNDER ANY THEORY OF LIABILITY (INCLUDING ATTORNEYS' FEES AND ASSOCIATED COSTS AND EXPENSES) ARISING FROM YOUR USE OF THE SITES. NOTWITHSTANDING THE FOREGOING, OUR TOTAL LIABILITY TO YOU BY ANY RELEASE PARTY SHALL NOT EXCEED THE FEES PAID BY YOU TO US DURING YOUR MEMBERSHIP. IN ADDITION, SHOULD YOUR CLAIM ARISE FROM A PURCHASE MADE ON OR THROUGH OUR SITES, OUR TOTAL DAMAGES SHALL NOT EXCEED THE COST OF THE PRODUCT OR SERVICE PURCHASED (LESS SHIPPING AND HANDLING).

 

YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD NOURISH INTERACTIVE INC., ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, AND SUPPLIERS, HARMLESS FROM AND AGAINST ANY CLAIMS, ACTIONS OR DEMANDS, LIABILITIES AND SETTLEMENTS INCLUDING WITHOUT LIMITATION REASONABLE LEGAL AND ACCOUNTING FEES, RESULTING FROM, OR ALLEGED TO RESULT FROM YOUR VIOLATION OF THESE TERMS AND CONDITIONS OR YOUR USE OF THE SITES OR SERVICES OF NOURISH INTERACTIVE INC.

 

J. LIMITATION OF LIABILITY: YOU EXPRESSLY AGREE AS A CONDITION OF USING THE SITES THAT NEITHER NOURISH INTERACTIVE, INC. NOR ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS OR SPONSORS ARE RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR INJURY OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO (i) THE USE OF OR INABILITY TO USE THE SITES; (ii) ANY CONTENT CONTAINED ON THE SITES; (iii) STATEMENTS OR CONDUCT POSTED OR MADE PUBLICLY AVAILABLE ON THE SITES; (iv) ANY PRODUCT OR SERVICE PURCHASED OR OBTAINED THROUGH THE SITES; (v) ANY ACTION TAKEN IN RESPONSE TO OR AS A RESULT OF ANY INFORMATION AVAILABLE ON THE SITES; (vi) ANY DAMAGE CAUSED BY LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF ANY CONTENT ON THE SITES, or (vii) ANY OTHER MATTER RELATING TO THE SITES. IN NO EVENT SHALL NOURISH INTERACTIVE, INC.'S TOTAL LIABILITY TO YOU FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT [INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE], STATUTORY, OR OTHERWISE) EXCEED THE FEES PAID BY YOU TO US DURING YOUR MEMBERSHIP. IN ADDITION, SHOULD YOUR CLAIM ARISE FROM A PURCHASE MADE ON OR THROUGH OUR SITES, OUR TOTAL DAMAGES SHALL NOT EXCEED THE COST OF THE PRODUCT OR SERVICE PURCHASED (LESS SHIPPING AND HANDLING).

 

K. NOTICES: Nourish Interactive, Inc. may deliver notice to you under this Agreement or any other published policy on the Sites by email, a general notice published on the Sites. Nourish Interactive, Inc. will never request any personally identifiable information from you via electronic or postal mail. If you receive an email or postal mail that purports to be from us that requests personally identifiable information from you, and specifically, your credit card number, please do not reply to that email or request. You may give notice to us via email, by certified U.S. Mail postage prepaid or by nationally recognized overnight courier to the following address:

 

Nourish Interactive, Inc. PO Box 6457 135 W 25th St. San Mateo, CA 94403 Attn: Customer Service

 

L. GEOGRAPHIC LIMITS OF SERVICE: Nourish Interactive, Inc. makes no representation or warranty that the content and materials on the Sites are appropriate or available for use in locations outside the United States, its territories and possessions and Canada.

Those who choose to access the Sites from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent applicable. Nourish Interactive, Inc. reserves the right, at any time in our sole discretion, to limit the availability and accessibility of the Sites to any person, geographic area, or jurisdiction we so desire.

 

M. TERMINATION: This Agreement shall remain effective until terminated in accordance with its own terms and conditions. You agree that Nourish Interactive, Inc., in its sole discretion, may terminate your password, account (in whole or in part), or use of the Sites, and remove and discard any content within the Sites, at any time and for any reason. You agree that any actions taken under this Paragraph may be effective without prior notice to you. In the event of termination, however, those portions of this Agreement that provide for continuing obligations on your part shall survive indefinitely.

 

N. ASSIGNMENT:

 

Nourish Interactive, Inc. may assign its rights and interest in this Agreement or otherwise at any time and without notice to you or your consent.

 

O. MISCELLANEOUS TERMS AND CONDITIONS: This Agreement constitutes the entire agreement and understanding between you and Nourish Interactive, Inc. and governs your use of the Sites, superseding any prior agreements between you and Nourish Interactive, Inc. This Agreement and the relationship between you and Nourish Interactive, Inc. shall be governed by and construed in accordance with the laws of the Commonwealth of California, without regard to its conflict of law provisions. You and Nourish Interactive, Inc. irrevocably agree to submit to the personal and exclusive jurisdiction of the federal and state courts located within the county of San Mateo, in the Commonwealth of California, and waive any jurisdictional, venue, or inconvenient forum objections to such courts. The failure of Nourish Interactive, Inc. to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severed from this agreement and shall not affect the validity and enforceability of any remaining provisions. No waiver by Nourish Interactive, Inc. of any breach or default hereunder shall be deemed a waiver of any preceding or subsequent breach or default