Kimkins Weight Loss (“we,” “us” or “Kimkins Weight Loss”) owns and operates the Kimkins.com web site (our “Site”) to provide program material and an interactive way for like minded users to seek and give support and personal experiences, collectively, our “Service”). Your use of our Service is subject to the following Terms and Conditions of Use (these “Terms”). The terms “you”, “your” and “yourself” each means the person who accesses the Service whether or not such person is a paid subscriber.
This legal agreement is made between you and us. By accessing the Service, you accept these Terms and agree to the terms, conditions and notices contained or referenced herein whether or not you become a paid subscriber. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT USE THE SERVICE.
WE RESERVE THE RIGHT TO MAKE CHANGES TO THESE TERMS AT ANY TIME. YOUR CONTINUED USE OF OUR SERVICE CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGES. ACCORDINGLY, YOU SHOULD REVIEW THESE TERMS FROM TIME TO TIME FOR SUCH CHANGES. IT IS YOUR RESPONSIBILITY TO PERIODICALLY REVIEW THIS AGREEMENT FOR REVISIONS.
1. USER CONDUCT
In your use of our Service, you agree to act responsibly in a manner demonstrating the exercise of good judgment. For example and without limitation, you agree not to: (a) violate any applicable law or regulation, (b) infringe the rights of any third party, including without limitation, intellectual property, privacy, publicity or contractual rights, (c) use the information available through our Service for any unauthorized or unlawful purpose, (d) interfere with or damage our Service, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology, including methods that in any way reproduces or circumvents the navigational structure or presentation of the Service or its contents, (e) use our Service to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others, personal contact information or credit, debit, calling card or account numbers, (f) use our Service in connection with the distribution of unsolicited commercial email (“Spam”) or advertisements, (g) “stalk” or harass any other user of our Service, (h) collect or store any information about any other user other than in the course of the permitted use of our Service, (i) use our Service for any commercial purpose whatsoever, (j) impersonate any person or entity, (k) remove any copyright, trademark or other proprietary right notices contained in the Service, (l) modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Service or our Site or any software used on or for the Service, or (m) assist any third party in doing any of the foregoing.
2. YOUR INTERACTIONS WITH OTHER USERS OF THE SERVICE
1. Your Responsibilities. You are solely responsible for your interactions with other users of our Service, including the content of the materials you post in the public areas of the Service and in your messages to other users of the Service. You agree to take reasonable precautions in all interactions with other users of the Service, particularly if you decide to meet offline or in person. You should not provide your financial information (for example, your credit card or bank account information) to other users of our Site.
2. Our limitations. We will not be responsible for any damage or harm resulting from your interactions with other users of our Service. While we do make certain efforts to screen users, you understand that we do not in any way inquire into the backgrounds of our users or attempt to verify their statements. We make no representations or warranties as to the conduct of our users or their compatibility with any current or future users. We reserve the right, but have no obligation, to monitor all interactions between you and other users of our Service and to take any action in good faith to restrict access to or the availability of any material that we or another user of our Service may consider to be obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable. Email and chat messages sent between you and other users of the Service that are not readily accessible to the general public may be reviewed by us for compliance with these Terms, but will be treated by us as private to the extent required by applicable law. In no event shall we be liable for any damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to the conduct of you or anyone else in connection with the use of the Service, including without limitation, bodily injury, emotional distress, and/or any other damages resulting from communications or meetings with other users of the Service or persons you meet through the Service. We are not responsible for, and cannot control, the use by others of any information which you provide to them and you should use caution in selecting the personal information you provide to others through the Service. We cannot assume any responsibility for the content of messages sent by other users of the Service, and you release us from any and all liability in connection with the contents of any communications you may receive from other users.
3. User Disputes. You are solely responsible for your interactions with other users of our Site. We reserve the right, but have no obligation, to monitor disputes between you and other users.
Our Service is intended for persons 18 years or older and we will not knowingly permit anyone under the age of 18 to use our Service. By using our Site and/or using the Service, you represent and warrant that you are at least 18 years old and otherwise have the right, authority and capacity to accept these Terms and abide by all of the terms and conditions set forth herein.
4. THE KIMKINS WEIGHT LOSS SERVICE
Users of the Service may become “Guests” or “Full Members” of the Service. Guests are allowed access to a minimal level of the Service’s features and are not charged by us for the use of the features they can access. Full Members are provided with access to additional features of the Service that are not available to Guests. Full Members are not charged by us for the features that are free to Guests. Certain additional features of the Service made available to Full Members are also free of charge. Certain other features of the Service are “paid features”, for which a Full Member is charged.
B. Fees and Payments
Guests of the Service are required to set up a Member Registration in order to access the Service. To activate additional features of the Service, Guests may choose one of our membership packages to upgrade their membership to Full status. A member may pay via credit card, debit card, money order, check or any other method the Company may accept as payment of account, in accordance with our pricing policy for Memberships as posted on our website. We reserve the right to change our pricing policy or the method or manner in which we charge for our Service at any time at our sole discretion without further notice. Once we have confirmed receipt of your payment, we will activate your account upon payment. A Full Member whose account has lapsed will remain a Guest Member, but cannot access “paid features” until an additional membership is purchased. If your usage of the Service is terminated because of a breach of this Agreement or if it is terminated for any reason, any unused balance is immediately forfeited. Once successfully posted, we may monitor your account for usage and compliance with the Terms. Accounts may not be transferred from one client of the Service to another client. No fees or charges are refundable under any circumstance. You agree to pay or have paid all fees and charges incurred in connection with the Service (including any applicable taxes) at the rates in effect when the charges were incurred. We may change the fees and charges in effect for using the Service, or add new fees or charges, by posting new fees and changes on the site from time to time. You are responsible for internet or other third party service, including but not limited to telephone charges.
C. Refund Policy
Effective November 14, 2010 all memberships are deemed “lifetime” and will not expire. Memberships are intangible digital media and non-refundable. Members who purchased recurring membership subscriptions are non-refundable and billing continues until cancellation by either party.
D. Privacy & Use of Information
E. Advice Columnists
From time to time this service may include or offer messages, articles or live talk from Advice Columnists who may opine on personal experiences or observations or respond to “lifestyle” questions. Any oral or written statements made by Advice Columnists are provided for entertainment purposes only, and are not intended, and should not be taken, as specific advice in any particular circumstance. Such statements do not constitute counseling or medical advice of any kind. Users with personal problems or who may be seeking personal advice applicable to their personal situation are urged to consult with a qualified counselor or medical care provider with respect to such issues.
F. Customer Service
You may not to be abusive, obscene, profane, offensive, sexist, threatening, harassing, racially offensive, or otherwise behave inappropriately when communicating with other members or our representatives. If we determine, in our sole discretion, that your behavior towards any of our representatives is at any time inappropriate, we reserve the right to immediately terminate your access to our Site and you will not be entitled to any refund of unused subscription fees.
5. USER CONTENT
A. You are solely responsible for any content that you submit, post or transmit via our Service. You agree not to post or submit any content that: (a) is libelous, defamatory or slanderous, (b) contains pornographic content, (c) may denigrate any ethnic, racial, sexual or religious group by stereotypical depiction or otherwise, including by promoting racism, bigotry, hatred or physical harm of any kind against any group, (d) exploits images or the likeness of individuals under 18 years of age including in a sexual or violent manner, or solicits personal information from anyone under the age of 18, (e) encourages or otherwise depicts or glamorizes drug, (f) makes use of offensive language or images or is otherwise patently offensive to the online community, (g) harasses or advocates harassment of another person, (h) involves the transmission of “junk mail”, “chain letters” or unsolicited mass mailing or Spam, (i) promotes an illegal or unauthorized copy of another person’s copyrighted work, (j) characterizes violence as acceptable, glamorous or desirable, (k) contains any illegal material or any material that infringes or violates another party’s rights (including without limitation intellectual property rights and rights of privacy and publicity), (l) provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses, (m) solicits passwords or personal identifying information for commercial or unlawful purposes from other users, (n) provides or promotes inaccurate, misleading or false information, (o) engages in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes. If any information that you provide to us subsequently becomes inaccurate, misleading or false, you will promptly notify us of such change.
B. The foregoing is a partial list of the kind of content that is illegal or prohibited on our Site. We reserve the right to investigate and take appropriate legal action in our sole discretion against anyone who violates this Section 5, including without limitation, removing the offending communication from the Service and terminating the violator’s access to the Site.
C. We have no obligation to post any content that you or anyone else submits. While we do not and cannot review every message or other material posted or sent by users of the Service, and are not responsible for any content of these messages or materials, we reserve the right, but are not obligated, to monitor, delete, move, or edit messages or materials, including without limitation advertisements, profiles, public postings and messages, that we, in our sole discretion, deem to violate these Terms or any applicable content guidelines, or to be otherwise unacceptable. You shall remain solely responsible for the content of profiles, public postings, messages and other materials you may upload to the Service or users of the Service. We cannot guarantee, and assume no responsibility for verifying, the accuracy of the information provided by other users of the Service.
6. NON-COMMERCIAL USE
Our Site is for personal use only and may not be used in connection with any commercial purposes. Organizations, companies, and/or businesses should not use the Service or our Site for any purpose. Illegal and/or unauthorized uses of the our Site, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of or linking to our Site may be investigated, and appropriate legal action will be taken, including without limitation, civil, criminal, and injunctive redress. Use of our Site is with our permission, which may be revoked at any time, for any reason, in our sole discretion.
7. THIRD PARTY CONTENT
In your use of our Service, you may access content from third parties (“Third Party Content”), either via our Service or through links to third party web sites. You also agree to receive periodic information and promotions or additional product offerings from Kimkins, vendors or affiliated companies. You have the right to opt-out of any or all mailing lists either by manually unsubscribing or notifying us via email or US postal mail. You agree that you must evaluate, and bear all risks associated with, Third Party Content, including without limitation, profiles of other users of our Service.
8. PROPRIETARY RIGHTS
A. You agree that all content and materials available on our Site are protected by either our rights, or the rights of our licensors, of publicity, copyright, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. Except for that information which is in the public domain or for which you have been given express written permission by us, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from materials or content available on our Site. Notwithstanding the above, you may use the content on our Site in the course of your normal, personal, non-commercial use of our Service.
B. You agree not to systematically retrieve data or other content or any materials from our Site to create or compile, directly or indirectly, a collection, compilation, database, directory or the like, whether by manual methods, through the use of “bots” or otherwise. You agree not to use of any of our trademarks as metatags on other web sites. You agree not to display any of our Site in a frame (or any of our content via in-line links) without our express written permission, which may be requested by contacting us at email@example.com. You may, however, establish ordinary links to the homepage of our Site without our written permission.
9. USER NAME AND PASSWORD
You will select a user name and password when completing the registration process. We may refuse to grant you a User name/Nickname that impersonates someone else, is protected by trademark or proprietary law, or is vulgar or otherwise offensive, as determined by us in our sole discretion. You are solely and fully responsible for maintaining the confidentiality of your user name and password, and are solely and fully responsible for all activities that occur under your user name and password. You agree to: (a) immediately notify us of any unauthorized use of your user name and password or any other breach of security and (b) ensure that you log off from your account at the end of each session. We will not be liable for any loss or damage arising from your failure to comply with this Section 9.
You agree that we, in our sole discretion, may terminate your access to our Service for any reason, including, without limitation, your breach of these Terms. You agree that any termination of your access to our Service may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete any of your accounts and all related information and files in such accounts and/or bar any further access to such files or our Service. Further, you agree that we will not be liable to you or any third party for any costs or damages of any kind for or resulting from any termination of your access to our Service. You may terminate your access to the Service at any time via our Site or by sending us written or email notice of termination. You will not be entitled to any refund of unused subscription fees upon termination of your access to our Service for any reason whatsoever.
11. DISCONTINUANCE OF SERVICE
We reserve the right at any time to modify temporarily or permanently, any portion of our Service with or without prior notice. You agree that we will not be liable to you or to any third party for any modification of our Service.
12. BLOCKING OF IP ADDRESSES
In order to protect the integrity of the Service, we reserve the right at any time in our sole discretion to block users from certain IP addresses from accessing our Site.
13. REPRESENTATIONS AND WARRANTIES
You hereby represent and warrant to us that: (a) that you have the full power and authority to enter into and perform under these Terms, (b) your use our Service will not infringe the copyright, trademark, right of publicity or any other legal right of any third party, (c) you will comply with all applicable laws in using our Service and in engaging in all other activities arising from, relating to or connected with these Terms, including, without limitation, contacting other users of our Service and (d) you own or otherwise have all rights necessary to license the content you submit and that the posting and use of your content by us will not infringe or violate the rights of any third party.
14. DISCLAIMER OF WARRANTIES
YOU AGREE THAT:
A. IF YOU USE OUR SERVICE, YOU DO SO AT YOUR OWN AND SOLE RISK. OUR SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
B. WE DO NOT WARRANT THAT (A) OUR SERVICE WILL MEET YOUR REQUIREMENTS, (B) OUR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) ANY INFORMATION THAT YOU MAY OBTAIN ON OUR SERVICE WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH OUR SERVICE WILL MEET YOUR EXPECTATIONS, (E) ANY INFORMATION YOU PROVIDE OR WE COLLECT WILL NOT BE DISCLOSED TO THIRD PARTIES OR (F) ANY ERRORS IN ANY DATA OR SOFTWARE WILL BE CORRECTED. WE ARE NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, FAILURE OF EMAIL/CHAT OR PLAYERS ON ACCOUNT OF TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY WEBSITE OR COMBINATION THEREOF, INCLUDING INJURY OR DAMAGE TO USERS OR TO ANY OTHER PERSON’S COMPUTER RELATED TO OR RESULTING FROM PARTICIPATING OR DOWNLOADING MATERIALS IN CONNECTION WITH THE SITE AND/OR IN CONNECTION WITH THE SERVICE. UNDER NO CIRCUMSTANCES WILL WE OR ANY OF OUR AFFILIATES, ADVERTISERS, PROMOTERS OR DISTRIBUTION PARTNERS BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM ANYONE’S USE OF THE SITE OR THE SERVICE, ANY CONTENT POSTED ON OUR SITE OR TRANSMITTED TO USERS, OR ANY INTERACTIONS BETWEEN USERS OF THE SITE, WHETHER ONLINE OR OFFLINE.
C. IF YOU ACCESS OR TRANSMIT ANY CONTENT THROUGH THE USE OF OUR SERVICE, YOU DO SO AT YOUR OWN DISCRETION AND YOUR SOLE RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOU IN CONNECTION WITH SUCH ACTIONS. WE ARE NOT RESPONSIBLE FOR ANY INCORRECT OR INACCURATE CONTENT POSTED ON OUR SITE OR IN CONNECTION WITH THE SERVICE, WHETHER CAUSED BY USERS OF THE SITE OR BY ANY OF THE EQUIPMENT OR PROGRAMMING ASSOCIATED WITH OR UTILIZED IN THE SERVICE. WE ARE NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SITE OR THE SERVICE. WE ASSUME NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER COMMUNICATIONS.
D. NO DATA, INFORMATION OR ADVICE OBTAINED BY YOU IN ORAL OR WRITTEN FORM FROM US OR THROUGH OR FROM OUR SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
15. LIMITS ON LIABILITY
A. YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM, RELATING TO OR CONNECTED WITH: (A) THE USE OR INABILITY TO USE OUR SERVICE, (B) THE COST OF REPLACEMENT OF ANY GOODS, SERVICES OR INFORMATION PURCHASED OR OBTAINED AS A RESULT OF ANY INFORMATION OBTAINED FROM OR TRANSACTIONS ENTERED INTO THROUGH OR FROM OUR SERVICE, (C) DISCLOSURE OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT, (D) STATEMENTS, CONDUCT OR OMISSIONS OF ANY SERVICE PROVIDERS OR OTHER THIRD PARTY ON OUR SERVICE, (E) ACTIONS OR INACTIONS OF OTHER USERS OF OUR SITE OR OUR SERVICE OR ANY OTHER THIRD PARTIES FOR ANY REASON, OR (F) ANY OTHER MATTER ARISING FROM, RELATING TO OR CONNECTED WITH OUR SERVICE OR THESE TERMS.
B. WE WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMING UNDER THESE TERMS WHERE SUCH FAILURE OR DELAY IS DUE TO CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING NATURAL CATASTROPHES, GOVERNMENTAL ACTS OR OMISSIONS, LAWS OR REGULATIONS, TERRORISM, LABOR STRIKES OR DIFFICULTIES, COMMUNICATIONS SYSTEMS BREAKDOWNS, HARDWARE OR SOFTWARE FAILURES, TRANSPORTATION STOPPAGES OR SLOWDOWNS OR THE INABILITY TO PROCURE SUPPLIES OR MATERIALS.
C. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS OF SECTIONS 14 AND 15 MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold us, and our subsidiaries, parents, affiliates, and each of our and their directors, officers, managers, members, partners, agents and employees, harmless from any claim, demand, action, damage, loss, cost or expense, including without limitation, reasonable attorneys’ fees, incurred in connection with any suit or proceeding brought against us arising out of your use of our Service or alleging facts or circumstances that could constitute a breach by you of any provision of these Terms and/or any of the representations and warranties set forth above. If you are obligated to indemnify us, we will have the right, in our sole discretion, to control any action or proceeding and determine if and how we wish to settle it.
17. COPYRIGHT POLICY
The Service contains information, which is proprietary to us, our partners and our users. We assert full copyright protection in the Service. Information posted by us, our partners or users of the Service may be protected whether or not it is identified as proprietary to us or to them. You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. Without limiting the foregoing, if you believe that your work has been copied and posted on our Site in a way that constitutes copyright infringement, please click here and send us your notice of infringement by following the instructions provided.
The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because we have no control over such sites and resources, you acknowledge and agree that we are not responsible for the availability of such external sites or resources, and do not endorse and are not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such content, goods or services available on or through any such site or resource.
19. DISPUTE RESOLUTION
All disputes arising out of or relating to these Terms or your use of our Service will be exclusively resolved in courts located in Riverside, California to enforce these Terms or prevent an infringement of a third party’s rights. Each party hereby irrevocably submits to the personal jurisdiction of such court.
You do not have the right to assign this Agreement or any of your rights to the Service to anyone. Kimkins Weight Loss has the right to assign any or all of its rights and obligations under this Agreement or to the Service to any third party. Provided such rights and obligations are assumed by such third party, Kimkins Weight Loss shall be relieved of any and all liability under this Agreement.
These Terms shall be interpreted in accordance with the laws of the State of California without reference to conflict of law principles. These Terms contain the entire understanding of the parties regarding their subject matter, and supersede all prior and contemporaneous agreements and understandings between the parties regarding their subject matter. No failure or delay by a party in exercising any right, power or privilege under these Terms shall operate as a waiver thereof. The invalidity or unenforceability of any of these Terms shall not affect the validity or enforceability of any other of these Terms, all of which shall remain in full force and effect.