These Terms and Conditions of Use ("Terms") apply to your access and use of the Calorie Wiz application and the website, content, products, and services (the "Services"), operated and owned by Arcturus Innovations Inc. (“Arcturus”) in connection with Calorie Wiz (the “Application”). Please read them carefully.
1. ACCEPTING THESE TERMS
If you access or use the Services, it means you agree to be bound by all of the terms below. Please read all of the terms. If you do not agree to all of the terms below, please do not use the Services.
YOU AGREE TO ACCESS AND USE THE SERVICES AT YOUR OWN RISK. PLEASE CAREFULLY REVIEW THE SECTION ENTITLED “LIMITATION OF LIABILITY”, PRIOR TO ACCESSING THE SERVICES.
CALORIE WIZ AND THE SERVICES DO NOT PROVIDE, AND ARE NOT A REPLACEMENT FOR MEDICAL ADVICE. PLEASE CONSULT A DOCTOR OR OTHER MEDICAL PROFESSIONALS BEFORE USING THE SERVICES AS PART OF ANY DIET OR EXERCISE ROUTINE.
2. CHANGES TO THESE TERMS
Arcturus may revise these Terms at any time without notice by updating this posting. By use of the Services, you agree to be bound by any such revisions and should therefore periodically review these Terms to determine the current Terms to which you are bound.
Subject to your compliance with the Terms, we grant you a limited, revocable, nonexclusive, non-assignable, and non-sublicensable license to (a) access Calorie Wiz on your personal device(s) solely in connection with use of the Services, and (b) access and use any content, information and related materials that may be available through the Services. You agree that you will not license, distribute, and make derivative works, display, sell, or “frame” any part of the Application or Services. The Services and the rights herein are, and shall remain the property of Arcturus. Use of the Services does not convey or grant you any ownership rights other than the limited license granted above.
All copyright, trademarks, design rights, patents and other intellectual property rights (registered and unregistered) in and on the Services and the Application belong to Arcturus and/or its partners or applicable third parties.
4. USE OF THE SERVICES
You are required to register for and maintain an active personal user services account (“Account”) prior to using the Services. You must be 18 years of age, or the age of legal majority in your jurisdiction. You may be required to submit certain Personal Data (as defined in Section 9), and when applicable, an acceptable valid payment method (which may consist of payment mechanisms built into your mobile device operating system, such as Apple Pay®). You agree to maintain accurate, complete and up to date Account. Failure to maintain an accurate, complete, and up to date Account may result in an inability to access or use the Services. You may not provide false information or create an account for anyone other than yourself.
You agree to maintain the security and secrecy of your Account username and password at all times. You are responsible for all use and activity on your Account. You may not authorize third parties to use your Account. You agree to comply with all applicable laws when using the Services and you may only use the Services for lawful purposes.
5. MOBILE APPLICATION USE
Arcturus provides the Application to access the Services via a mobile device. Arcturus does not guarantee that the Application or Services, or any portion thereof, will function on any particular hardware or devices. We hereby grant to you a non-exclusive, non-transferable, revocable license to use an object code copy of the Application for one Account on any mobile device owned or leased, solely by you, for your personal use. For greater clarity, “mobile device” includes a smartphone, a smartwatch, and a tablet device.
You acknowledge that Arcturus may from time to time issue upgraded versions of the Application. If enabled on your mobile devices, the Application may be upgraded automatically. If automatic upgrades are disabled, you agree and acknowledge that you will upgrade to the newest version as soon as possible to enable the proper functioning and security of the Application and Services. You acknowledge that Arcturus shall not be held liable for any losses or damages that may result from your failure to upgrade the Application to the latest version in a timely manner or for any losses or damages that may result from any upgrade. You agree that these Terms will apply to all such upgrades and future upgradeable versions.
Through the use of the Application and Services, you acknowledge and grant Arcturus the right to access your location using GPS, Wi-Fi, and other location information on your mobile device to provide location data as necessary for the Services outlined in these Terms. You agree that Arcturus may use this location data in an anonymized fashion for the purpose of operating, analyzing, and improving the Services. Please see Section 10, “Privacy”, for more on data use and privacy.
You are responsible for obtaining and maintaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from a wireless enabled device. By creating an Account, you agree to permit the receiving of information via text messages (SMS) or other appropriate instant communication protocols, such as email communication, as part of the normal operation and use of the Services.
You acknowledge and agree that you are fully responsible for the payment of any charges or fees imposed by your wireless carrier for such communications and for your use of the Application and Services.
6. HYPERLINKS AND THIRD PARTY CONTENT
Arcturus makes no claim or representation, and accepts no responsibility for, third party websites accessible by hyperlink from the Services or websites linking to the Services. When you leave the Services, you should be aware that these Terms and our policies no longer govern.
If there is any content on the Services created by you or other third parties, we do not review, verify, or authenticate it. Any content on the Services created by you or other third parties may include inaccuracies or false information. We do not make any representations, warranties, or guarantees relating to the quality, suitability, truth, accuracy, or completeness of any user-generated or third party content contained in the Services. You acknowledge sole responsibility for, and assume all risk arising from your use of or reliance on any such content.
7. NO REPRESENTATIONS OR WARRANTIES
Arcturus makes no representations or warranties that the Services, including the application, are free of defects, viruses, or other harmful components. Arcturus shall not be responsible for any damages or loss that may result from the hacking or infiltration of the Services. You have the sole responsibility for adequate protection and backup of data and/or equipment used in connection with the Services. You agree to hold Arcturus harmless from, and you covenant not to sue Arcturus for, any claims based on the use of the Services, including claims for lost data, work delays, or lost profits resulting from use of the services provided. Arcturus disclaims all representations and warranties of any kind, express or implied, or statutory, not expressly set out in these terms, including without limitation implied warranties of merchantability, fitness for a particular purpose, and non-infringement. In addition, Arcturus makes no representation, warranties, or guarantee regarding the reliability, timeliness, quality, suitability, or availability of the Services, or that the Services will be uninterrupted or error-free. Arcturus does not guarantee the quality, suitability, or safety of the information provided to you. You agree to assume the risk arising out of your use of the Services. This risk remains solely with you, to the maximum extent permitted under applicable law.
8. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL ARCTURUS, ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE, OR ANY OTHER DAMAGE WHATSOEVER IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, EVEN IF ARCTURUAS HAS BEEN ADVISED OF THE POSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES; ARCTURUS’ LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. ARCTURUS SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF YOUR USE OF OR RELINACE ON THE SERVICES OR YOU INABILITY TO ACCESS OR USE THE SERVICES. ARCTURUS SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND ARCTURUS’ REASONABLE CONTROL.
CALORIE WIZ IS NOT A REPLACEMENT FOR MEDICAL ADVICE. A DOCTOR OR OTHER MEDICAL PROFESSIONALS SHOULD BE CONSULTED BEFORE STARTING OR CONTINUING WITH ANY DIETING OR EXERCISE ROUTINE. CALORIE WIZ AND THE SERVICES ARE MEANT ONLY AS A PERSONAL TOOL FOR LOGGING AND PLANNING YOUR MEALS AND FOOD INTAKE. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE APPLICATION AND SERVICES IS DONE SO AT YOUR OWN RISK.
ARCTURUS SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES ARISING OUT OF, OR RELATING TO, ANY OF THE FOLLWING, REGARDLESS OF WHETHER FOUND IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE: (a) PHYSICAL OR EMOTIONAL PAIN, SUFFERING OR DAMAGE, OR LOSS DUE TO THE USE OR MISUSE OF THE SERVICES, AND (b) MONETARY, GENERAL, OR ANY OTHER CLAIM RELATING TO USE OR MISUSE OF THE SERVICES.
IN NO EVENT SHALL ARCTURUS’ LIABLITY TO YOU, OR ANY PARTY CLAIMING ON YOUR BEHALF FOR DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID US IN SERVICE DURING THE LAST SIX (6) MONTHS OR, IF GREATER, ONE HUNDRED DOLLARS ($100). YOU AGREE THAT ANY INSURANCE UNDER WHICH YOU ARE INSURED, WHICH MAY BE AVAILABLE TO ADDRESS ANY DAMAGES ARISING OUT OF OR RELATING TO USE OF THE SERVICES, SHALL BE THE PRIMARY SOURCE OF INSURANCE TO ADDRESS ANY SUCH DAMAGES. YOU UNDERSTAND AND AGREE THAT ANY INSURANCE UNDER WHICH WE ARE INSURED SHALL NOT BE THE PRIMARY SOURCE OF INSURANCE TO ADDRESS ANY DAMAGE, AND MAY ONLY BE ACCESSED AT OUR SOLE DISCRETION, OR NOT AT ALL.
THE LIMITATION OF LIABILITY DESCRIBED IN THIS SECTION SHALL APPLY FULLY AND EQUALLY TO CANIMAR INVESTMENTS INC. (“CANIMAR”), WHO MAY, IN CERTAIN CASES, EITHER DIRECTLY INDIRECTLY, ACT AS THE DISTRIBUTOR OR ACCOUNT MANAGER OF THE APPLICATION FOR SALE AND DISTRIBUTION PURPOSES.
THE LIMITATIONS AND DISCLAIMERS IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
You will indemnify and hold harmless Arcturus, Canimar, and their subsidiaries, affiliates, licensors, service providers, employees, agents, officers and directors, from and against any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in any way connected with: (a) your access to, use of, or alleged use of the Services or the services or goods obtained through your use of the Services; (b) your breach or violation of any of the Terms, representations, warranties, or agreements referenced in the Terms, or any applicable law of regulation; (c) Arcturus’ use of your information provided by you in your Account; (d) your violation of the rights of any third party, including any intellectual property right of publicity, confidentiality, or other property or privacy right; or (e) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter). In such an event, you agree to cooperate with our defense of that claim.
Your privacy is important to us. Arcturus will use all commercially reasonable efforts to ensure the privacy and security of your data and Account information. When you use the Services, Arcturus may collect personal data, including but not limited to, your email address, first and last name, height, weight, date of birth, gender, calorie intake, weight loss goals, activity routines, and body measurements (“Personal Data”). This information is only collected with your express permission.
Arcturus will process and store your Personal Data and any other Account information, which includes location information, in accordance with these Terms and in accordance with all applicable privacy laws in Ontario and where otherwise required by law.
Arcturus may use your Personal Data in order to improve and develop our Services, analyze usage, provide customer support, and for the purposes of marketing by Arcturus. Arcturus will not share your Personal Data without your express permission except as provided herein. Personal Data may be shared with affiliates and business partners, including advertisers, and your Personal Data may be disclosed in order to comply with any legal or regulatory obligation or, in the case of a dispute, in order to defend Arcturus, its affiliates and business partners, or other users’ rights and interests (“Permitted Disclosure”). In the event of a Permitted Disclosure of Personal Data, Arcturus will only disclose identifying information where necessary or otherwise where required by law to do so. Arcturus may also transfer your personal data in the event of a business transaction, such as a merger or acquisition of our business.
Data collected via HealthKit® on Apple iOS® devices will not be used by Arcturus for marketing and advertisement.
11. GOVERNING LAW AND DISPUTE RESOLUTION
You agree that the validity, operation, and performance of the Terms shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein (notwithstanding conflict of the laws rules), and both you and Arcturus expressly and irrevocably attorn to the jurisdiction of the courts of Ontario with respect to any matter or claim, suit, action, or proceeding arising under or related to the Terms.
You acknowledge and agree that you are waiving your right to participate as a plaintiff or member in any purported class action or representative proceeding. In the case of any arbitration, you further agree that unless Arcturus agrees in writing, an arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then this paragraph will be deemed void without prejudice to the remainder of this section. Except as provided in the proceeding sentence, this section (Section 11) will survive any termination of the Terms.
Arcturus reserves the right to terminate your access to use of the Services at any time without notice for any reason whatsoever. Arcturus will not be liable to you or any third party for any termination of your access to the Services.
If our relationship or these Terms terminate, it will not limit any of our other rights or remedies, and any provision of these Terms that must survive in order to give proper effect to the intent and purpose of these Terms will survive termination, including without limitation Section(s): 3, 8, 9, 10, and 11.
Certain features or parts of the Services may be subject to a subscription or user fee (“Charges”). Charges will be subject to applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise determined by Arcturus or else as required under mobile application store provider rules. All Charges are due immediately and payment will be facilitated by Arcturus using the preferred payment method designated by you in your Account, upon which you will be sent a receipt by email. You agree that Arcturus may use a secondary payment method provided by you in your Account, if available, when or if your primary payment method is determined to be expired, invalid or otherwise not able to be charged.
You agree that Arcturus may, in its sole discretion, round up or round down amounts that are payable through the Application to the nearest whole functional base unit. For example, an amount owed of $51.505 may be rounded up to $51.51, and an amount owed of $51.491 may be rounded down to $51.49.
Arcturus may give notice by means of a general notice on the Services, including by not limited to by electronic mail to your email address provided in your Account, or by written communication sent by first class mail to the home address provided in your Account. Such notice shall be deemed to be given 48 hours after mailing or posting if sent by first class mail, or 12 hours after sending it by email. You may give notice to Arcturus, with such notice deemed given when received by Arcturus at any time
16. ENTIRE AGREEMENT
These Terms constitute the entire agreement between you and Arcturus regarding the use of the Services, superseding any prior agreements between you and Arcturus relating to your use of the Services.
17. QUESTIONS & CONTACT INFORMATION
We welcome your feedback regarding our Services. If you have any questions or suggestions regarding these Terms, please contact us at firstname.lastname@example.org
“Apple Pay” and “HealthKit” are registered trademarks of Apple Inc. “iOS” is a registered trademark of Cisco Systems Inc. and is used under license to Apple Inc.