PLEASE READ THE FOLLOWING TERMS AND CONDITIONS RELATING TO YOUR USE OF OUR WEBSITE, APPS AND OUR FEE-BASED PRODUCTS AND OFFERINGS CAREFULLY.
By using our Website (as defined below), Mostly Plants mobile applications (the “Apps”) and/or one of our fee-based products or offerings (collectively, our “Fee-Based Products”), you agree to the terms and conditions set forth in this Subscription Agreement (this “Agreement”). We reserve the right, in our sole discretion, to change, modify, add or remove provisions of this Agreement at any time. You should check this Agreement periodically for changes. By using this Website, the Apps or our Fee-Based Products after we post any changes to this Agreement or otherwise notify you of such changes, you agree to accept those changes, whether or not you have reviewed them. If you do not agree to this Agreement, you should not use our Website, the Apps and/or our Fee-Based Products and you should arrange to cancel your registered user account or subscription with us, as applicable.
1. Scope of Agreement
Unless we indicate otherwise, this Agreement applies to your use of the websites which are owned or operated by MostlyPlants LLC. (“MostlyPlants.com,” “we,” “us,” or “our”) and our affiliates (collectively, “Mostly Plants”), including, without limitation, this website and any other website that we may own or operate currently or in the future (collectively, our “Website”), the Apps, including any software upgrades that may replace or supplement the original Apps, and all of the Fee-Based Products that we may offer currently or in the future. For purposes of this Agreement, “affiliates” shall mean any entity or person, directly or indirectly, owning a controlling interest in, owned by, or under common ownership control with, MostlyPlants.com, including, without limitation, Mostly Plants LLC. (“Mostly Plants LLC”) and its subsidiaries.
2. Your Use of this Website, the Apps and Our Fee-Based Products
Unless otherwise specified, we grant you a non-exclusive, non-transferable, limited right to access, use and display this Website and the material provided hereon, the Apps, and the Fee-Based Products that you subscribed to, for your personal, noncommercial use, provided that you comply fully with the provisions of this Agreement. You agree not to assign, transfer or sublicense your rights as a registered user of, or subscriber to, this Website, the Apps and/or our Fee-Based Products. You understand that only you may use your user account and password, and that your subscription to our Fee-Based Products is only valid for your personal, noncommercial use and may not be shared with others. You agree to be financially responsible for all usage or activity of Fee-Based Products subscribed to by you. To subscribe to our Fee-Based Products, you represent that you are a United States citizen or resident with a valid United States mailing address.
By using this Website, the Apps and/or our Fee-Based Products, you agree to be legally bound and to abide by this Agreement, just as if you had signed this Agreement. If you do not comply with this Agreement at any time, we reserve the right to cancel or terminate your password, user account, and/or access to this Website (or any part thereof), the Apps and/or our Fee-Based Products. In our sole discretion and without prior notice or liability, we may discontinue, modify or alter any aspect of the Website, the Apps or our Fee-Based Products, including, but not limited to, (i) restricting the time the Website, the Apps and/or a Fee-Based Product is available, (ii) restricting the amount of use permitted, and (iii) restricting or terminating any user’s right to use the Website., the Apps and/or any of our Fee-Based Products. You agree that any termination or cancellation of your access to, or use of, the Website, the Apps and/or our Fee-Based Products may be effected without prior notice. If you do not abide by the terms of this Agreement, except as we may otherwise provide from time to time, you agree that we may immediately deactivate or delete your user account and all related information and/or files in your user account and/or bar any further access to such information and/or files, our Website (or part thereof), the Apps and/or our Fee-Based Products. Further, you agree that we shall not be liable to you or any third-party for any termination or cancellation of your access to, or use of, our Website, the Apps and/or our Fee-Based Products, except for a refund of any fees or charges prepaid by you with respect to our Fee-Based Products in accordance with paragraph 4 of this Agreement. You acknowledge that your only right with respect to any dissatisfaction with any modification or discontinuation of service made by us pursuant to this provision or this Agreement, or any policies or practices by us in providing this Website, the Apps or our Fee-Based Products, including without limitation any change in content or any change in the amount or type of fees or charges associated with the Fee-Based Products, is to cancel or terminate your subscription or registered user account, as applicable. From time to time, we may supplement this Agreement with additional terms and conditions pertaining to specific content, activities or events (“Additional Terms”). Such Additional Terms may be placed on the Website to be viewed in connection with the specific content, activities, features or events and shall be identified as such. You understand and agree that such Additional Terms are hereby incorporated by reference into this Agreement.
3. Charges and Fees for Fee-Based Products
Certain portions, components, content and features of this Website and the Apps are only available to individuals who purchase a subscription to one of our Fee-Based Products. As a subscriber to one of our Fee-Based Products, you agree as follows:
A. You agree to pay, using a valid credit card (or other form of payment which we may accept from time to time), the fixed and periodic charges and fees (including prepayment plan fees for multiple periods) set forth on this Website and in the Apps (such as the fixed Sign Up Fee and the recurring Monthly Fee), applicable taxes, and other charges and fees incurred in order to access our Fee-Based Products. We reserve the right to increase charges and fees, or to institute new charges or fees at any time, upon reasonable advance notice communicated to you through a posting on this Website, the Apps or such other means as we may deem appropriate from time to time (including electronic mail or conventional mail). We will automatically charge your credit card or other account at the start of the standard or multiple-period prepayment plan billing period and at the start of each renewal period, unless you terminate or cancel your subscription before the relevant renewal period begins. Except in the case of a multiple-period prepayment plan, a recurring billing long term commitment plan or if you were eligible for a discounted rate but are no longer eligible for that rate, the renewal charge will be the same as the prior period’s charge, unless we notify you in advance at the time of sign up or prior to the beginning of the renewal period as described above. Each time you use our Fee-Based Products you reaffirm your agreement that we may charge your credit card (or other form of payment, if applicable). In the event we cannot charge your account, we reserve the right to terminate your access to our Fee-Based Products. If you purchased a multiple- period prepayment plan, a recurring billing long term commitment plan or you were eligible for a discounted rate but are no long eligible for that rate, your subscription will automatically be renewed at our standard subscription rates and for our standard period (usually monthly) at the start of the renewal period.
B. In addition to the fees and charges set forth above, you are responsible for all charges and fees associated with connecting to and using our Website, the Apps and our Fee-Based Products, including without limitation all telephone access lines (including long-distance charges, when applicable), internet service provider fees, telephone and computer equipment, sales taxes and any other fees and charges necessary to access our Fee-Based Products.
C. For purposes of your use of our Fee-Based Products including identification and billing, you agree to provide us with true, accurate and complete information as required by the subscription or sign up process to our Fee-Based Products (“Subscription Data”), including your legal name, address, telephone number, email address and applicable billing information (e.g., credit card number and expiration date), and to allow us to share your Subscription Data with third parties for the purpose of verifying the information you provide and billing your credit card or otherwise charging your account. You agree to maintain and promptly update the Subscription Data and any other information you provide to us to keep it accurate. Without limiting any other provision of this Agreement, if you provide any information that is untrue, inaccurate, or incomplete, or we have reasonable grounds to suspect that such is the case, we reserve the right to suspend or terminate your user account or subscription and refuse any and all current or future use by you of our Website (or any portion thereof), the Apps or any of our Fee-Based Products. You are obligated to check the “Account Settings” feature of our Website or the Apps to determine whether your Subscription Data is current and accurate, and, if not, to correct or update your Subscription Data including your billing information. You agree not to register or subscribe for more than one account, create an account on behalf of someone else, or create a false or misleading identity on this Website or in the Apps.
If your registration or subscription is revoked for any reason, you agree not to register or subscribe again with our Website or in the Apps using another user name or through any other means. If we have reason to suspect, in our sole discretion, that your account has previously been terminated, we reserve the right to terminate any new accounts you have registered without any notice to you, or to exercise any other remedies available to us under this Subscription Agreement or by law.
D. You are entirely responsible for maintaining the confidentiality of your password and user account information. You must notify us immediately in the event of any known or suspected unauthorized use of your user account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your or anyone else’s password or credit card information. In the event of a breach of security by you, you will remain liable for any unauthorized use of your subscription until you update your Subscription Data. If your credit card expires, is canceled, is lost or is subject to use without your authorization, access the Account Settings feature of this Website to update your Subscription Data. You are entirely responsible for any and all activities which occur under your user account. You are responsible for paying any amounts billed to your credit card by a third party which were not authorized by you.
E. The fees, including the full monthly fee for any month (or portion thereof) elapsed (regardless of whether you participated in Coaching or logged onto the Website or Apps during that month), and any sign-up or starter fee, are non-refundable except as set forth below:
(1) If you are cancelling your subscription within 5 days (or such other period as required by law) of your initial purchase, we will refund the full amount of such initial purchase. (2) If your subscription is cancelled due to pregnancy or other medical reason prior to the end of a period for which you have incurred a charge, then we will refund the unused portion of such period. (3) If we terminate your subscription (as opposed to you canceling your subscription), other than due to your violation of this Agreement, prior to the end of a period for which you have incurred a charge, with the exception of any fixed upfront fee (e.g. the sign-up fee), we will refund any unused portion of such period on a pro rata basis.
If you cancel your subscription and are entitled to any refund as described in E(1) through (3) above, we reserve the right to charge a fee to cover the cost to us of any administrative or other services you may have used prior to your cancellation, to the extent permitted by law.
F. Notwithstanding anything in this Agreement to the contrary, purchases made within the Apps downloaded from the Apple® iTune store are not refundable and are subject to Apple’s iTunes Terms of Service.
4. Cancellation of Subscription
From time to time, we may have special, discounted recurring billing long term commitment plans with predetermined early terminations fee in lieu of our standard cancellation policy. If you subscribe to such a plan and you decide to cancel at any time prior to the end of the commitment plan period, you will be charged the pre-determined early termination fee as specified in the plan offer terms.
You can cancel your subscription online or by contacting Customer Service or by such other means as we may provide from time to time in our Cancellation Policy. We will attempt to process all cancellation requests within 72 hours after we receive your request. If you cancel near the end of your billing period and are inadvertently charged for the next period’s fee, contact Customer Service to have the charges reversed. If you use our Fee-Based Product during that next period, you will not be entitled to a refund. We reserve the right to collect fees, surcharges, or costs incurred before your cancellation takes effect.
5. Availability of Fee-Based Products
The availability and use of our Fee-Based Products (or any portion thereof) may be limited based on demographic, geographic, health or other criteria as we may establish from time to time. You understand and agree we may disallow you from subscribing to our Fee-Based Products or may terminate your subscription to our Fee-Based Products at any time based on these criteria. For example, pregnant women and individuals under the age of 18 may not subscribe to our Fee-Based Products.
6. Privacy and Security
7. Health Disclaimer
This Website, the Apps and our Fee-Based Products provide weight loss management and information applications and content published over the Internet and are intended only to assist users in their personal weight loss efforts. Mostly Plants is not a medical organization and our staff cannot give you medical advice or diagnosis. Nothing contained in this Website, the Apps or through the Fee-Based Products should be construed as such advice or diagnosis. The information and reports generated by us should not be interpreted as a substitute for physician consultation, evaluation, or treatment. You are urged and advised to seek the advice of a physician before beginning any weight loss effort or regimen. This Website, the Apps and the Fee-Based Products are intended for use only by healthy adult individuals and are not intended for use by minors, pregnant women, or individuals with any type of health condition. Such individuals are specifically warned to seek professional medical advice prior to initiating any form of weight loss effort or regimen.
For more information, you should review our Health Notice, which is incorporated into this Agreement by this reference.
8. Automatically Become a Registered User
As a subscriber to one of our Fee-Based Products, you automatically become a registered user of this Website, which provides you with access to certain products, offerings, features, or resources of our Website. If you cancel your subscription to our Fee-Based Products, you will remain a registered user of our Website unless you specifically request otherwise.
9. Restrictions on Use of Materials
You acknowledge that this Website, the Apps and the Fee-Based Products contain information, software, photos, video, text, graphics, music, sounds, questions, creative suggestions, messages, comments, feedback, ideas, recipes, notes, drawings, articles and other materials (collectively, “Content”) that are protected by copyrights, patents, trademarks, trade secrets and/or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Content is copyrighted under the United States copyright laws (and, if applicable, similar foreign laws), and we own a copyright in the selection, coordination, arrangement and enhancement of such Content. The Content and functionality may be covered by U.S. Patents No.’s 6,040,531; 6,436, 036; 6,663,564, 7,523,040, 7,361,143, 8,595,023, 8,382,482 and additional patents pending. All trademarks appearing on this Website and in the Apps are trademarks of their respective owners. Mostly Plants LLC is the trade name and “Mostly Plants” is the trademarks and service marks of Mostly Plants LLC. Our commercial partners, suppliers, advertisers, sponsors, licensors, contractors and other third parties may also have additional proprietary rights in the Content which they make available on this Website and in the Apps. You may not modify, publish, transmit, distribute, perform, participate in the transfer or sale, create derivative works of, or in any way exploit, any of the Content, in whole or in part. When Content is downloaded to your computer or mobile phone, you do not obtain any ownership interest in such Content. Modification of the Content or use of the Content for any other purpose, including, but not limited to, use of any Content in printed form or on any other website or networked computer environment is strictly prohibited unless you receive our prior written consent.
10. Community Standards and Conduct Guidelines
You acknowledge that all Content and all information, software, photos, video, text, graphics, music, sounds, questions, creative suggestions, messages, comments, feedback, ideas, recipes, notes, drawings, articles and other materials posted, emailed, or otherwise transmitted to or on our Mostly Plants Community which can be accessed via the Website or through the Apps, whether posted at our request or voluntarily, and whether publicly posted or privately transmitted (collectively, the “Postings”), are the sole responsibility of the person who made such Postings. This means that you are entirely responsible for all Postings that you post, email or otherwise transmit through the Mostly Plants website and/or App. We do not control the Postings posted, emailed or otherwise transmitted by others and, as such, we do not guarantee the accuracy, integrity or quality of such Postings. Although we have adopted standards and conduct guidelines for the users of Mostly Plants Community (as described below), you understand that by using the Mostly Plants Community, you may be exposed to Postings that are offensive or objectionable. Under no circumstances will we be liable in any way for any Postings (other than for Content developed by us or our affiliates), including, but not limited to, for any errors or omissions in any Postings, or for any loss or damage of any kind incurred as a result of the use of any Postings posted, emailed or otherwise transmitted to or through the Mostly Plants Community. You agree not to use the Mostly Plants Community to:
- Upload, post, email or otherwise transmit any Postings or other materials that are unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable (in our sole discretion);
- Harm minors in any way, or solicit or otherwise attempt to gain any information from a minor;
- Impersonate any person or entity, including, but not limited to, any user of this the Mostly Plants Community, a director, officer, employee, shareholder, agent or representative of Mostly Plants or our affiliates, or any other person or entity, or falsely state or otherwise misrepresent your affiliation with Mostly Plants, our affiliates or any other person or entity;
- Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Postings or other materials transmitted to or through the Mostly Plants Community;
- Upload, post, email or otherwise transmit any Postings or other materials that you do not have a right to upload, post, email or otherwise transmit under any law or under contractual or fiduciary relationships (such as insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- Upload, post, email or otherwise transmit any Postings or other materials that infringe upon any patent, trademark, trade secret, copyright, right of privacy or publicity or other proprietary rights of any party; Copyrighted information may include content from another website or our subscriber-only areas, a recipe from a book, images and intellectual property, recipes or activities and exclusive details about our food plan;
- Upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of commercial solicitation;
- Upload, post, email or otherwise transmit any Postings or other materials that contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- Disrupt the normal flow of dialogue, or otherwise act in a manner that negatively affects or otherwise diminishes the quality of another user’s experience on the Mostly Plants Community;
- Interfere with or disrupt the Mostly Plants Community or servers or networks connected to the Mostly Plants Community or the Apps, or disobey any requirements, procedures, policies or regulations of networks connected to the Mostly Plants Community and/or the Mostly Plants Apps;
- Intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, any regulations having the force of law;
- “Stalk” or otherwise harass another user of the Mostly Plants Community; or
- Solicit, collect or post personal data or attempt to solicit, collect or post personal data about other users of the Mostly Plants Community, including user names or passwords; or
- Access or attempt to access another user’s account without his or her consent.
Your privilege to use and/or access the Website and Apps (including the Mostly Plants Community) and contribute to discussions on the Mostly Plants Community depends on your compliance with the standards and conduct guidelines set forth above. We may revoke your privileges to use all or a portion of the Mostly Plants Community and/or take any other appropriate measures to enforce these standards and conduct guidelines if violations are brought to our attention. Further, if you fail to adhere to our standards and conduct guidelines, or any part of this Subscription Agreement, we may terminate, in our sole discretion, your use of, or participation in the Mostly Plants Community. We reserve the right to monitor some, all, or no areas of the Mostly Plants Community for adherence to the standards and conduct guidelines set forth above or for any other purpose. You acknowledge that by providing you with the ability to distribute Postings in the Mostly Plants Community, we are acting as a passive conduit for such distribution and we are not undertaking any obligation or liability relating to any Postings or activities, nor do we endorse any such Postings. Although we reserve the right to remove, without notice, any Posting for any reason, we have no obligation to review the Mostly Plants Community prior to the posting or to delete Postings that you may find objectionable or offensive. We are not responsible for maintaining a copy of any material we remove from the Mostly Plants Community, and we are not liable for any loss you incur in the event that Content you post or transmit to the Mostly Plants Community is removed.
12. Parental or Guardian Permission
Some of the Content on this Website and in the Apps may not be appropriate for children. CHILDREN UNDER THE AGE OF 18 ARE NOT PERMITTED TO USE THIS WEBSITE AND THE APPS.
This Agreement applies only to this Website and the Apps, and not to the websites of any other person or entity. We may provide, or third parties may provide, links to other worldwide websites or 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 websites or resources. You further acknowledge and agree that, under no circumstances, will we be held responsible or liable, directly or indirectly, for any loss or damage that is caused or alleged to have been caused to you in connection with your use of, or reliance on, any content, advertisements, products or other resources available on any other website (regardless of whether we directly or indirectly link to such content, advertisements, products or other resources). You should direct any concerns with respect to any other website to that website’s administrator or webmaster.
14. Third Party Products and Services
You may order services, merchandise or other products through our Website or Apps from other parties (collectively, the “Third Party Sellers”). All matters concerning the services, merchandise and other products desired from the Third Party Sellers, including, but not limited to, purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between you and the Third Party Sellers. We make no warranties or representations whatsoever with regard to any services, merchandise and other products provided by the Third Party Sellers. You will not consider us (and we will not be construed as) a party to such transactions, whether or not we may have received some form of revenue or other remuneration in connection with such transactions, and we will not be liable for any costs or damages arising out of, either directly or indirectly, you or any other person involved or related to the transactions.
15. Copyright Complaints
We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and in our sole discretion, terminate the rights of any user to use our Website or Apps (or any part thereof) who infringes the intellectual property rights of others. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that your work has been copied in a way that constitutes copyright infringement or are aware of someone doing so, please contact us and include the following information:
- a physical or electronic signature of the owner of the copyright or a person authorized to act on behalf of the owner;
- identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on this Website or in the Apps are covered by a single notification, a representative list of such works);
- identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow us to locate the material on our Website or Apps;
- your name, mailing address, telephone number and email address;
- a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
- a statement by you that the information in your notification is accurate, and that you attest under penalty of perjury, that you are the copyright owner or that you are authorized to act on the copyright owner’s behalf.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices with respect to this Website should be sent to our designated agent for notice of claims of copyright infringement: General Counsel, MostlyPlants LLC., 1630 30th Street Ste. A #494 Boulder, CO 80301.
16. Disclaimers of Warranties
PLEASE NOTE THE FOLLOWING IMPORTANT DISCLAIMERS OF WARRANTIES: THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS (INCLUDING, WITHOUT LIMITATION, THE FEE-BASED PRODUCTS) ON THIS WEBSITE AND THE APPS ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY OR NON-INFRINGEMENT. NEITHER MOSTLY PLANTS LLC, MOSTLYPLANTS.COM, ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT THAT THIS WEBSITE OR THE APPS, OR ANY FUNCTION CONTAINED IN THIS WEBSITE OR THE APPS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS WEBSITE OR THE APPS, OR THE SERVERS THAT MAKE THIS WEBSITE AND THE APPS AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY PRODUCT, OFFERING, CONTENT AND MATERIAL (INCLUDING, WITHOUT LIMITATION, THE FEE-BASED PRODUCTS) DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THIS WEBSITE OR THE APPS IS DONE AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, PHONE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH PRODUCT, OFFERING, CONTENT OR MATERIAL (INCLUDING, WITHOUT LIMITATION, THE FEE-BASED PRODUCTS). NEITHER MOSTLYPLANTS.COM, ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS (INCLUDING, WITHOUT LIMITATION, THE FEE-BASED PRODUCTS) IN THIS WEBSITE OR THE APPS IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU FROM OUR PERSONNEL OR THROUGH THIS WEBSITE OR THE APPS SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT.
17. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE AND OUR AFFILIATES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR RESULTING FROM, (A) THE USE OR THE INABILITY TO USE THIS WEBSITE OR THE APPS (INCLUDING, WITHOUT LIMITATION, THE FEE- BASED PRODUCTS); (B) THE USE OF ANY CONTENT OR OTHER MATERIAL (INCLUDING, WITHOUT LIMITATION, THE FEE-BASED PRODUCTS) ON THE APPS OR ON THIS WEBSITE OR ANY WEBSITE OR WEBSITES LINKED TO THIS WEBSITE, (C) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THIS WEBSITE (INCLUDING, WITHOUT LIMITATION, THE FEE-BASED PRODUCTS) OR THE APPS; (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR WEBSITE OR THE APPS (INCLUDING, WITHOUT LIMITATION, THE FEE-BASED PRODUCTS); OR (F) ANY OTHER MATTER RELATING TO THIS WEBSITE OR THE APPS. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THIS WEBSITE AND THE APPS. IF YOU ARE DISSATISFIED WITH ANY PORTION OF OUR WEBSITE OR APPS, OR WITH ANY OF PROVISION OF THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS THE DISCONTINUATION OF YOUR USE OF THIS WEBSITE AND APPS. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
You agree to indemnify, hold harmless and, at our option, defend us and our affiliates, and our and their officers, directors, employees, stockholders, agents and representatives from any and all third party claims, liability, damages and/or costs (including, but not limited to, reasonable attorneys fees and expenses) arising from your improper use of this Website, the Mostly Plants Apps or our products or offerings (including, without limitation, the Fee-Based Products), your violation of this Agreement, or your infringement, or the infringement or use by any other user of your account, of any intellectual property or other right of any person or entity.
19. Governing Law and Choice of Forum
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to your use of this Website or the Apps (including, without limitation, the Fee-Based Products) or this Agreement shall be filed only in the state or federal courts located in Delaware and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
20. Miscellaneous Terms
In any action against us arising from the use of this Website or the Apps (including, without limitation, the Fee-Based Products), the prevailing party shall be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney’s fees.
If any provision of these terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. This Agreement, together with the Terms & Conditions (if applicable) and any Additional Terms, are the entire agreement between you and us relating to the subject matter herein.
This Agreement may be modified only by our posting of changes to this Agreement on this Website or the Apps, or by written agreement of both parties. Each time you access this Website or the Apps, you will be deemed to have accepted any such changes.
We may assign our rights and obligations under this Agreement. This Agreement will inure to the benefit of our successors, assigns and licensees. The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision of this Agreement, or to exercise any right under this Agreement, will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.
(Last modified on November 2, 2018)