TERMS OF SERVICE
These terms and conditions (“Terms”) apply to any website, including www.mydiamondlife.co, (“Sites”) and any web-based, mobile device or tablet application (“Applications”) owned or operated by Zillion Group, Inc. and/or its wholly owned subsidiary Lean Labs, Inc. d/b/a The Diamond Life (collectively, “Zillion”) that links to these Terms, and any related software, content, programs, services, materials or offerings (collectively, the “Services”).
We also create private customized versions of the Services for specified clients. These private, contract-built sites, applications, and related software, content, programs, services, materials or offerings are included in the term “Services.”
By using or accessing the Services, you are agreeing to be bound by these Terms and you represent and warrant that you that you are at least 18 years of age and you are not located in, do not reside in, and will not access or use the Services in the European Union. If you do not agree with any of these Terms, or if you are or are legally unable to agree to these Terms, you are prohibited from using or accessing the Services. All references to “we,” “our,” and “us” in these Terms refer to Zillion.
We may periodically change these Terms without prior notice, so please check back from time to time. Your continued use of the Services after changes are posted constitutes your continued agreement to the then-current Terms.
If you receive access to the Services through your employer or another sponsoring entity (“Corporate Sponsor”), such that your Corporate Sponsor pays fees directly to us, you may be referred to herein as a (“Corporate User”).
- User Registration.
In order to access our fitness, weight loss and nutritional information services through our mobile device, tablet or web-based Applications, you must first register with us by creating a user account (a “User Account”). In order to create a User Account, you must select a user name and password and, for certain functionality, you may also be required to provide additional information as indicated at the time of registration as further described in Section 5. All of this information comprises your “User Account Information”.
You represent that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and that you are not listed on any U.S. Government list of prohibited or restricted parties.
We may revise the Services at any time, in our sole discretion, by posting descriptions of such revised Services on our website. We may discontinue the Services and/or your access to the Services at any time. Full use of the Services is dependent upon your use of adequate internet access, software and hardware. You are responsible for securing such access, software and equipment, and your failure to do so could affect your access to, and the functioning of, the Services.
- License Grant and Scope.
Subject to and conditioned upon your strict compliance with these Terms, we hereby grant you a non-exclusive, non-transferable, non-sublicensable, limited license during the term hereof to access, download, install and use the Services solely for your personal, non-commercial use. Notwithstanding anything to the contrary in these Terms, with respect to Corporate users, the license granted in this Section shall immediately terminate upon termination of our agreement with your Corporate Sponsor.
- Use Restrictions.
You may use the Services only for purposes that are legal, proper and in accordance with these Terms. By way of example, and not as a limitation, you agree that when using the Services, you will not:
- copy, modify, translate, adapt or otherwise create derivative or improvements, whether or not patentable, of the Services or any part thereof;
- combine the Services or any part thereof with, or incorporate the Services or any part thereof in, any other programs;
- reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Services or any part thereof;
- remove, delete, alter or obscure any trademark, copyright, patent or other intellectual property or proprietary rights notices provided on or with the Services, including any copy thereof;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Services, or any features or functionality of the Services, to any third party for any reason;
- use the Services in violation of any law, regulation or rule;
- remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection or security features in the Services; or
- use the Services for purposes of competitive analysis of the Applications or Services, the development of a competing application, website product or service or any other purpose that is to our commercial disadvantage.
- Monitoring, Audit and Expectations of Privacy
In addition to any monitoring of your use of the Services to ensure your compliance with this Agreement, we also may, in our sole discretion, audit your use of the Services within twelve (12) months after the end of the Term to ensure you have ceased use of the Services. You shall fully cooperate with our personnel conducting such audits. We shall only examine information directly related to your use of the Services.
- Collection and Use of Information.
You acknowledge that when you access the Services, we may use automatic means (including, for example, cookies and web beacons) to collect information about you and about your use of the Services. You also may be required to provide certain information about yourself, including your personal health information and other similar personal information, as a condition to downloading, installing or using the Services or certain of their features or functionality, and the Services may provide you with opportunities to share information about yourself with others. By downloading, installing, using and providing information to or through the Services, you consent to all actions taken by us with respect to your information in compliance with our applicable policies and applicable law. You specifically acknowledge and agree that some or all of your information, including personally identifiable information (PII) or Protected Health Information (PHI) may be shared with third parties for purposes of billing, operations, or improvement of the Services. Your information will not be shared for marketing or advertising purposes. You specifically acknowledge and agree that we may record some conversations between you and staff or support team members for quality assurance and product improvement purposes.
You represent and warrant that you own or have the right to all information, ideas, feedback, suggestions, materials, photos, and other content (“Submissions”) that you post to or submit through the Services, and you hereby grant us a non-exclusive, transferable, sublicensable, worldwide, irrevocable, royalty-free license to use, copy, modify, translate, create derivative works from, and distribute such Submissions. You further represent and warrant that you will not upload, post, email or otherwise transmit or make available any materials that (a) are unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (b) infringe upon any patent, trademark, trade secret, copyright, right of privacy or publicity or other proprietary rights of any party; and/or (c) 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.
Your right to use and/or access the Services depends on your compliance with the standards and conduct guidelines set forth above. If you fail to adhere to these standards and guidelines, or any part of these Terms, we may terminate, in our sole discretion, your use of, or access to the Services, regardless of whether our agreement with your Corporate Sponsor remains in effect.
We may from time to time in our sole discretion develop and provide updates to the Services, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Updates may also modify or delete in their entirety certain features and functionality of the Services. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of the Services. You may be required to download and install Updates as a condition to your continued use of and access to the Services.
- Intellectual Property Rights.
Except Third Party Materials (defined below), all content and functionality of the Services, including text, modules, videos, graphics, logos, icons, and images and the selection and arrangement thereof, in addition to any underlying concepts, know-how, tools, frameworks, software, algorithms, models, and industry perspectives, is the exclusive property of either us or our licensors and, to the extent applicable, is protected by U.S. and international copyright laws. The trademarks, service marks, designs, and logos (collectively, the “Trademarks”) displayed in connection with Services are the registered and unregistered Trademarks of us and our licensors. We retain all right, title and interest in and to all usage data, statistical data or aggregated and anonymized data collected, extracted or derived from the Services.
You shall promptly notify us if you become aware of any infringement of our intellectual property with respect to the Services, and you agree to fully cooperate with us, at our sole expense, in any legal action taken by us against a third party with respect to such infringement.
FOR CORPORATE USERS ONLY: All applicable fees for access to and use of the Services will be paid by your Corporate Sponsor pursuant to a separate agreement between your Corporate Sponsor and us. We may offer you additional products or services that may require you to pay a fee to us and any additional services and fees will be subject to a separate agreement between you and us.
FOR ALL NON-CORPORATE USERS: You agree to pay, and you hereby authorize our third party payment processor to charge you using your selected payment method, all subscription fees-set forth at https://mydiamond.co/signup or listed in our then current fee schedule, which we may update or revise from time-to-time, in our sole discretion. Subscriptions are payable 100% in advance or on a monthly in advance basis commencing on the day you sign up for the Services and continuing every 30 days thereafter. Fees shall be due regardless of whether you use the Services. You are responsible for providing complete and accurate billing and contact information to us. Please note that your subscription will renew automatically unless you cancel prior to renewal by providing written notice to our support team.
- Term and Termination
FOR CORPORATE USES ONLY: These Terms and your access to the Services will terminate if the agreement between us and your Corporate Sponsor is terminated or expires or in the event you are no longer eligible to use the Services under the terms of your Corporate Sponsor’s agreement.
FOR NON CORPORATE USERS: Please see Section 9 for information on how to cancel your subscription to the Services. Upon termination of these Terms for any reason, you shall remit to us all outstanding fees owed by you to us, and you shall not be entitled to any refund of fees (including any partial refund), except as may be required by applicable law.
- Third Party Materials.
The Services may display, include or make available third-party content (including your Submissions, Submissions by other users, data, information, applications and other products, services and/or materials) (“Third Party Materials”). You acknowledge and agree that we are not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. We do not assume and will not have any liability or responsibility to you or any Third Party for any Third Party Materials.
- CONSULT WITH YOUR DOCTOR.
THE SERVICES PROVIDE WEIGHT LOSS MANAGEMENT AND RELATED INFORMATION AND CONTENT INTENDED ONLY TO ASSIST USERS IN THEIR PERSONAL WEIGHT LOSS AND WELLNESS IMPROVEMENT EFFORTS. WE ARE NOT A MEDICAL PROVIDER AND NEITHER WE, NOR OUR STAFF, THROUGH THE SERVICES OR OTHERWISE, PROVIDE MEDICAL ADVICE, TREATMENT OR DIAGNOSIS. NOTHING CONTAINED IN THE SERVICES SHOULD BE CONSTRUED AS MEDICAL ADVICE, TREATMENT OR DIAGNOSIS. USE OF THE SERVICES 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, EXERCISE REGIMEN OR RELATED WELLNESS MEASURES OR INITIATIVES, INCLUDING WITHOUT LIMITATION THE USE OF THE SERVICES.
- Disclaimer of Warranties.
THE SERVICES ARE PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE, ON OUR OWN BEHALF AND ON BEHALF OF OUR LICENSORS AND SERVICE PROVIDERS, INCLUDING MOBILE PLATFORM PROVIDERS, EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPLETENESS, ACCURACY, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION OF THE FOREGOING, WE PROVIDE NO WARRANTY OR UNDERTAKING, AND MAKE NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER APPLICATIONS, SOFTWARE, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, BE ERROR FREE, ARE SECURE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
- Limitation of Liability.
IN NO EVENT WILL WE OR ANY OF OUR LICENSORS OR SERVICE PROVIDERS, INCLUDING MOBILE PLATFORM PROVIDERS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SERVICES, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THE SERVICES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL OUR AND OUR LICENSORS’ AND SERVICE PROVIDERS’, INCLUDING APPLICABLE MOBILE PLATFORM PROVIDERS, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THE SERVICES, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY YOU TO US PURSUANT TO THESE TERMS OR FOR THE SERVICES. WITHOUT LIMITING THE FOREGOING, WE HAVE NO RESPONSIBILITY FOR ANY TRAINING PROGRAMS, CONSULTATIONS OR INFORMATION THAT YOU LEARN ABOUT THROUGH USE OF THE SERVICES AND YOU AGREE THAT YOUR USE OF THE APPLICATION AND SERVICES IS ENTIRELY AT YOUR OWN RISK. WHEN USING THE SERVICES, YOU REMAIN RESPONSIBLE FOR EXERCISING GOOD JUDGMENT AND COMMON SENSE.
YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS SET FORTH IN THIS SECTION 14 FORM A FUNDAMENTAL PART OF THIS AGREEMENT AND THESE LIMITATIONS SHALL APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
You agree to indemnify, defend and hold harmless us, our affiliates, and our and their officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to your use or misuse of the Services or your Submissions. Furthermore, you agree that we assume no responsibility for the Submissions or any other content you submit, use or make available through the Services. We reserve the right to assume control of the defense of any third party claim that is subject to your indemnification, in which case you will cooperate with us in asserting any available defenses.
- Export Regulation.
The Services may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Services or make the Services accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Services available outside the US.
- Infringement Claims.
If you are an intellectual property rights owner or an agent thereof and believe that any content posted on or through the Services infringes upon your intellectual property rights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing the following information in writing (see 17 U.S.C. §512(c)(3) for further detail):
• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• Identification of the work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site;
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
• Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
• A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner, its agent, or the law; and
• A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Such information should be sent to email@example.com. You acknowledge that if you fail to comply with all of the requirements set forth above, your DMCA notice may not be valid.
If you have had your content removed under the above take-down procedure and believe that the content is not infringing, you may send a counter-notice containing the following information to firstname.lastname@example.org:
• Your physical or electronic signature;
• Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
• A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
• Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Washington, D.C., and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by us, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at our sole discretion.
- PLEASE CAREFULLY READ THE FOLLOWING SECTION, WHICH REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS YOU MAY HAVE WITH US, AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK REMEDIES FROM US. You agree that all disputes, claims, actions or causes of actions between you and us arising from or relating to these Terms or the Services (“Disputes”) shall be subject to the arbitration procedure described below.
- You and we agree all Disputes shall be resolved through final and binding arbitration, except as expressly set forth otherwise in these Terms. You can decline this agreement to arbitrate by contacting email@example.com within 30 days of first using the Services, stating your full name and that you decline to accept this arbitration agreement. The American Arbitration Association (“AAA”) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will take place in Norwalk, Connecticut or such other location to which we agree in writing. The AAA rules will govern payment of arbitration fees.
- You may only resolve Disputes with use on an individual basis, and you may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions and consolidation with other arbitrations are not permitted for any Disputes or for any other reason related to the Services
- These Terms are governed by and construed in accordance with the internal laws of the State of Connecticut without giving effect to any choice or conflict of law provision. In the event that the agreement to arbitrate set forth in this Section is found not to apply to you (or as otherwise expressly set forth in these Terms), any legal suit, action or proceeding arising out of or related to the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of Connecticut in each case located in Fairfield County, Connecticut, and each party irrevocably submits to the exclusive jurisdiction of such courts. you waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. you and we each agree to waive our respective right to a jury trial.
- Regardless of any law to the contrary, any Dispute must be filed within one (1) year after such Dispute arose, or else that Dispute will be barred forever.
- These Terms are intended to supplement any other agreement or terms between us that may otherwise be applicable to the Services. In the event of any conflict or inconsistency between these Terms and any other agreement or terms, these Terms will take precedence and supersede any such other conflicting or inconsistent terms or agreements to the extent relating to the Services.
- A failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect.
Please contact us at firstname.lastname@example.org if you have any questions about Terms of Service.
EFFECTIVE AS OF APRIL 8, 2020