SAVOR HEALTH

App Terms of Use

Last Updated October 1, 2018

These terms of use (the “Terms of Use”) govern your use of the Savor Health, LLC (“Savor Health,” “we” or “us”) SMS-based and web-based nutrition solution (our “App”). By clicking “ACCEPT”, you agree to be legally bound by these Terms of Use. If you do not agree to these Terms of Use, then please do not access or use the App.

Our Privacy Policy located HERE (the “Privacy Policy”) is hereby incorporated into these Terms of Use by reference. These Terms of use and the Privacy Policy are collectively referred to as the “Agreement.” Capitalized terms not defined in these Terms of Use shall have the meaning set forth in our Privacy Policy.

THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS.  PLEASE READ THEM.

  1. ABOUT THE APP

Our App is meant to serve as a patient engagement and support solution, based on evidence-based science and clinical best practices in oncology. You may interact with Savor Health’s Intelligent Nutrition Assistant (“INA”) via SMS text messages or through the patient support website that led you to these Terms of Use (the “Site”). Once you inform INA of your condition, symptoms, and certain other information about yourself, INA will send you messages containing personalized recipes, suggestions to manage side effects, and other guidance and support from diagnosis to treatment, recovery, and survivorship.

  1. USE OF PERSONAL INFORMATION

Your use of the App may involve the transmission to Savor Health of certain personal information including protected health information (“PHI”). Our policies with respect to the collection and use of such personal information and PHI are governed according to our Privacy Policy.

  1. DISCLAIMER

ALTHOUGH THE APP, THE SITE, AND ANY INFORMATION PROVIDED BY SAVOR HEALTH THROUGH THE APP OR THE SITE CAN BE USED AS AIDS TO YOU TO MAKE INFORMED HEALTHCARE DECISIONS, SAVOR HEALTH, OUR APP, AND THE SITE ARE NOT MEANT TO BE SUBSTITUTES FOR PROFESSIONAL HEALTHCARE ADVICE. THE INFORMATION AND MATERIALS PROVIDED TO YOU VIA THE APP OR SITE ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND DO NOT CONSTITUTE – AND SHOULD NOT BE CONSTRUED AS – PROFESSIONAL, MEDICAL, OR HEALTH RECOMMENDATIONS OR ADVICE. ALL HEALTHCARE DECISIONS ARE MADE AT YOUR OWN DISCRETION AND ELECTION. SAVOR HEALTH DOES NOT GUARANTEE OR ENDORSE THE ACCURACY, COMPLETENESS, OR RELIABILITY OF ANY INFORMATION PROVIDED THROUGH THE APP OR THE SITE.

REMEMBER, INA IS NOT A DOCTOR. IF YOU ARE EXPERIENCING SYMPTOMS OR REQUIRE MEDICAL CARE, PLEASE CALL YOUR DOCTOR. SAVOR HEALTH ADVISES THAT YOU ALWAYS CONSULT YOUR DOCTOR AND OTHER MEMBERS OF YOUR MEDICAL TEAM BEFORE MAKING DECISIONS ABOUT YOUR HEALTH.

  1. ELIGIBILITY

The App is available for individuals aged 18 years or older. If you are 18 or older, but under the age of majority in your jurisdiction, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understands it. We reserve the right, in our sole and absolute discretion, to deny you access to the App, the Site, or any portion thereof, without notice and without reason.

  1. GETTING STARTED

To use the App, you will need to provide us with your phone number. Your phone number will be used by INA to message you via text, or, if you opt to use the App on the Site, your phone number will be required for you to login to the App and receive messages from INA. The phone number you provide is your unique identifier, and may not be shared with anyone else. You are responsible for the confidentiality and use of your account on the App. Savor Health is not responsible or liable to you or any third party if an unauthorized person uses your unique identifier to access the App.

  1. FEES

Access to, and usage of, the App is free of charge.

If you choose to receive INA messages via SMS text, your network operator or wireless carrier may charge you fees in connection with your use of the App, including, without limitation, wireless carrier messaging and other communication, messaging, and data fees and charges, as applicable. You shall be responsible, at your sole cost and expense, for obtaining and paying for wireless access, and under no circumstances will Savor Health be responsible for any data access fees or other charges in connection with your use of the App. By opting in to INA via SMS, you agree that Savor Health may send you SMS text messages from time to time without prompt.

  1. INTELLECTUAL PROPERTY

The App, including INA, and the Site are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms of Use, Savor Health and our licensors exclusively own all right, title, and interest in and to the App and the Site, including all associated intellectual property rights. You will not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the App or the Site.

The messages that you receive from INA will contain recipes and other information and materials, which may include text, graphics, images, sound recordings, audiovisual works, reports, analyses, data, statistics, and other content (collectively referred to as the “Content”). The Content may be owned by us or by third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. The Content is for your personal, non-commercial use only. You may not disclose, sell, transfer, assign, license, sublicense, or otherwise distribute the Content to any third party. You may not modify, reproduce, display, make a derivative version of, or otherwise use the Content for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content.

If you violate any part of this Agreement, your permission to access and/or use the Content and the App automatically terminates and you must immediately destroy any copies you have made of the Content.

The trademarks, service marks, and logos of Savor Health used and displayed on the App, including, without limitation, “INA” and “Intelligent Nutrition Assistant” (collectively, “Savor Health Trademarks”) are registered and unregistered trademarks or service marks of Savor Health. Other company, product, and service names located on the App may be trademarks or service marks owned by others (the “Third-Party Trademarks”, and, collectively with the Savor Health Trademarks, the “Trademarks”). Nothing herein should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of the Savor Health Trademarks inures to our benefit.

Elements of the App and Site are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.

We reserve all rights in the App and Site not expressly granted to you in this section.

  1. RESTRICTIONS

You are permitted to access and use the App and Site for personal, non-commercial use only. By accessing and/or using the App or the Site, you hereby agree to comply with the following restrictions:

  • You will comply with all applicable laws and will not use the App or the Site for any unlawful purpose;
  • You will not use the App or the Site in excess of the rights granted under these Terms of Use;
  • You will not access or use the App or the Site to collect any market research for a competing business;
  • You will not sell, distribute, share, sublicense, rent, lend, lease or in any other manner make the App or the Site available to any third party;
  • You will not copy the App or the Site;
  • You will not modify, adapt, create derivative works from or translate any part of the App or the Site;
  • You will not reverse engineer, decompile or disassemble the App or the Site or otherwise attempt to obtain its source code;
  • You will not remove or alter any copyright, trademark or other proprietary notice contained in the App or the Site;
  • You will not transmit to INA any information or materials that:
    • infringe any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
    • are threatening, tortious, defamatory, libelous, indecent, obscene, pornographic, invasive of another’s privacy, or promotes violence; or
    • disclose any sensitive information about another person, including PHI, or that person’s e-mail address, postal address, phone number, credit card information, or any similar information; or
    • you do not have the right or appropriate consents to make available;
  • You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
  • You will not use the App or the Site to “stalk” or otherwise harass another;
  • You will not circumvent, remove, alter, deactivate, degrade, or thwart any of the protections in the App or the Site;
  • You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure;
  • You will not use automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Site, directly or indirectly, except for Internet search engines (e.g., Google) and non-commercial public archives (e.g., archive.org) that comply with our robots.txt file;
  • You will not use, frame, or utilize framing techniques to enclose any Savor Health trademark, logo, or other proprietary information (including the images found on the Site, the content of any text, or the layout/design of any page or form contained on a page) without our express written consent;
  • You will not use meta tags or any other “hidden text” utilizing Savor Health’s name, trademark, or product name without Savor Health’s express written consent;
  • You will not interfere with or attempt to interrupt the proper operation of the App or the Site through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the App or the Site through hacking, password or data mining, or any other means.

We reserve the right, in our sole and absolute discretion, to deny you (or any device) access to the App, the Site, or any portion thereof, without notice.

  1. FEEDBACK; TECHNICAL DATA

We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the App and our products and services (“Feedback”) by emailing us at help@savorhealth.com. With respect to any Feedback you provide, we shall be free to use and disclose any ideas, concepts, know-how, techniques, or other materials contained in your Feedback for any purpose whatsoever, including, but not limited to, the development, production and marketing of products and services that incorporate such information, without compensation or attribution to you.

In addition, you agree that Savor Health and/or our third party providers may use for any product improvement and other business purposes, technical information collected in connection with the provision of the App and/or related services to you.

  1. NO WARRANTIES; LIMITATION OF LIABILITY

THE APP AND THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE APP, THE SITE, OR THE CONTENT. WE SHALL NOT BE SUBJECT TO LIABILITY FOR ANY DELAYS OR INTERRUPTIONS OF THE APP OR THE SITE FROM WHATEVER CAUSE. YOU AGREE THAT YOU USE THE CONTENT, THE APP, AND THE SITE AT YOUR OWN RISK.   WE DO NOT WARRANT THAT THE APP OR SITE WILL OPERATE ERROR-FREE OR THAT THE APP, THE SITE, OUR SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE APP, THE SITE, OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE SHALL NOT BE RESPONSIBLE FOR THOSE COSTS. THE APP AND THE SITE MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. UNLESS REQUIRED BY APPLICABLE LAWS, WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL OR TECHNICAL ERRORS LISTED ON THE APP OR THE SITE OR CONTAINED IN ANY CONTENT. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE APP AND THE SITE AT ANY TIME WITHOUT NOTICE.

IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE AND OUR LICENSORS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM YOUR ACCESS TO OR USE OF THE APP OR ANY CONTENT, INCLUDING, WITHOUT LIMITATION ANY LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE APP OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) WE SHALL NOT BE LIABLE FOR ANY DIRECT DAMAGES, NOT ATTRIBUTABLE TO PERSONAL INJURIES, THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE APP OR THE SITE IN EXCESS OF ONE HUNDRED U.S. DOLLARS ($100). NO COMMON-LAW CAUSE OF ACTION ARISING UNDER TORT, CONTRACT, OR WARRANTY RELATED TO THE APP OR THE SITE, OR OTHERWISE ARISING UNDER THIS AGREEMENT, REGARDLESS OF FORM, MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.

SOME JURISDICTIONS, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES; THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.

NOTHING IN THESE TERMS OF USE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.

  1. INDEMNIFICATION

You agree to defend, indemnify, and hold us and our officers, directors, employees, successors, licensees, and assigns harmless from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of the Agreement or your misuse of the App, the Site, or the Content. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.

  1. CHANGES

We reserve the right, at our sole discretion, to modify, discontinue, or terminate the App or the Site, or to modify the Agreement, at any time and without prior notice. If we modify the Agreement, we will post the modification on the Site, and/or notify you of the modification via INA message. By continuing to access or use the App or Site after we have posted a modification to the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the App and the Site.

  1. COMPLIANCE WITH APPLICABLE LAWS

The App and Site are based in the United States. We make no claims concerning whether the App or the Site may be appropriate for use outside of the United States. If you access the App or the Site from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.

  1. TERMINATION OF THE AGREEMENT

We reserve the right, in our sole discretion, to restrict, suspend, or terminate the Agreement and your and any device’s access to all or any part of the App and Site, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the App and the Site at any time without prior notice or liability.

  1. BINDING ARBITRATION

In the event of a dispute arising under or relating to this Agreement, the App, or the Site (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 17 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.

  1. CLASS ACTION WAIVER

You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

  1. EQUITABLE RELIEF

You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of New York, Borough of Manhattan for purposes of any such action by us.

  1. CONTROLLING LAW.

This Agreement and all such purchases and sales, and all disputes with respect thereto (whether such disputes arise in contract, tort or otherwise) shall instead be exclusively construed under and governed by the laws of the State of New York, without giving effect to principles relating to choice of law.

  1. MISCELLANEOUS

If the Agreement is terminated in accordance with the Termination provision above, such termination shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Disclaimer,” “Intellectual Property,” “Feedback; Technical Data,” “No Warranties; Limitation of Liability,” “Indemnification,” “Compliance with Applicable Laws,” “Termination of the Agreement,” “Binding Arbitration,” “Class Action Waiver,” “Equitable Relief,” “Controlling Law,” and “Miscellaneous.”

Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, the Agreement constitutes the entire agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. The Agreement will inure to the benefit of our successors, assigns and licensors.