Terms of Service
Last updated May 1, 2017
1. Scope of Terms & Conditions
Please read these Terms & Conditions of Service (“Terms & Conditions”) carefully. Unless otherwise indicated, these Terms & Conditions apply to your (i) use of and/or access to the eatwithava.com website and/or other websites (collectively “Website”) which are owned or operated by Pocket Coach, Inc. or its affiliates (collectively, “AVA”, “we,” “us” or “our”), including any portions thereof available only to subscribers; and (ii) your use of and/or access to any content or information and other online or SMS/mobile-enabled technology, digital tools and other sevices, programs and products provided by us (together with the Website, collectively, the “Services”). For purposes of these Terms & Conditions, “affiliates” shall mean any entity or person, directly or indirectly, owning a controlling interest in, owned by, or under common ownership control with, AVA. The term “Services” shall refer to both the Basic Services and Premium Services (hereinafter defined).
2. Agreement and Acknowledgement
1. User Agreement: By using the Website or Services, you agree to these Terms & Conditions and agree to be legally bound and to abide by the abide by the terms, conditions, and notices contained or referenced herein, just as if you had signed them.
2. Modification of Terms: AVA may change these Terms at any time and without prior notice. All such changes to these Terms will be posted on the Website, and by using the Website or Services after the posting of any changes you agree to accept any changes. If at any time you choose not to accept these Terms, do not access the Website or otherwise use any Services. If AVA determines in its sole discretion that you have in any way breached these Terms, AVA reserves the right to block your access, delete your account (if any), and/or otherwise block any and all current or future use of the Website or the other Services by you.
3. Modification of Services: In our sole discretion and without prior notice or liability, we may discontinue, modify or alter any aspect of the Services provided to you, including, but not limited to, (i) restricting the time the Services are available, (ii) restricting the amount of use permitted, (iii) restricting or terminating any user’s right to use the Services and (iv) changing any feature or functionality provided by the Services. You agree that any termination or cancellation of your access to, or use of, the Services may be effected without prior notice. 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 Services.
4. Mobile Services
1. When you opt-in to AVA mobile SMS Services, we will send you an SMS message to confirm your signup.
2. You can cancel the SMS Service at any time. Just text "STOP" to 48799. After you send the SMS message "STOP" to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. If you want to join again, just sign up as you did the first time and we will start sending SMS messages to you again.
3. If at any time you forget what keywords are supported, just text "HELP" to 48799. After you send the SMS message "HELP" to us, we will respond with instructions on how to contact us about any questions you may have.
4. We are able to deliver messages to the following mobile phone carriers: Major carriers: AT&T, Verizon Wireless, Sprint, T-Mobile, U.S. Cellular, Alltel, Boost, Mobile, Nextel, and Virgin Mobile. Minor carriers: Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of East Central IL (ECIT), Cellular One of Northeast Pennsylvania, Cincinnati Bell Wireless, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Simmetry (TMP Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless, and West Central (WCC or 5 Star Wireless).
5. As always, message and data rates may apply for any messages sent to you from us and to us from you. You may receive up to 10 messages daily. If you have any questions about your text plan or data plan, it is best to contact your wireless provider. For all questions about the services provided by this short code, you can send an email to email@example.com
5. No Medical Advice: All information and opinions offered in connection with AVA, or otherwise contained on the Website or provided via the Services, are presented solely for informational purposes and are not intended to replace the services of a doctor or other qualified medical professional. You should not use any such information or opinions for diagnosing, treating, curing or preventing any medical or health condition. No such information or opinions are intended to constitute, nor should they be considered to be, medical advice or to serve as a substitute for professional medical advice. The use of any such information or opinions is solely at your own risk.
If you think you may have a medical emergency, call your doctor or your local emergency number immediately.
AVA Services are not recommended for everyone, and before using AVA Services or any other nutritional or dietary regimen, you should consult with your qualified healthcare provider in order to assess any potential benefits or risks to you with consideration of your personal medical situation. Do not undertake AVA Services if you are under the age of 18 or are pregnant, breastfeeding or actively trying to become pregnant, without a parent or physician consent. Should you experience any adverse reactions while using AVA Services, contact your health care provider immediately.
As all information presented in connection with AVA Services, or otherwise contained on the Website or provided via the Services, is only of a general character, no individual results or health effects can be guaranteed, predicted or foreseen. No statements made in connection with AVA Services, or otherwise contained on the Website or provided via the Services, have been evaluated by the U.S. Food and Drug Administration or any other domestic or foreign government agency for their accuracy.
6. Minors: All users who register to use the Services must be 18 years of age or older. AVA does not collect personally identifiable information from any person it actually knows is a child under the age of 18.
3. Basic and Premium Services
Our Services consist of a limited version (“Basic Service”) and premium products with differing functionality based on the subscription level (“Premium Service”). Premium Service typically requires a fee, which is either paid (i) by the user (“Personal Premium Service”) or (ii) by a third party on behalf of the user (“Business Premium Service”). If you are not a Premium Service user, you may be precluded from using certain portions, components, content, features, or resources of our Services. We reserve the right to eliminate or modify any or all of the functionality of the Basic Service at any time without any prior notice to you.
Whether or not you use the Basic Service or the Premium Service, you are responsible for all charges and fees associated with connecting to and using the Website and/or SMS service, including without limitation all telephone access lines (including mobile data and data roaming charges, when applicable), telephone and/or internet service provider fees, telephone and computer equipment, sales taxes and any other fees and charges necessary to access our Website and/or SMS service.
4. FEES, RENEWAL, CANCELLATIONS & REFUND POLICIES
If you are a subscriber to our Premium Service, you further agree as follows:
a. Agreement to Pay.
(i) Personal Premium Service. If you are a Personal Premium Service User, you will be responsible for the fixed and periodic charges and fees (including prepayment plan fees for multiple periods or recurring monthly fees) you selected at the time of subscription. Applicable taxes, and other charges and fees incurred in order to access the Premium Services may also apply.
(ii) Business Premium Service. Business Premium Services are generally purchased by our third party commercial customers (“Business Customers”) for a specified period, and a Business Customer generally provides you with a unique activation code that allows you to access certain Premium Service features purchased by such Business Customer for a specified period. In such instance, your access to Premium Service has been paid for by our Business Customer, and you will be able to use Business Premium Service features until the expiration of a specified term agreed between AVA and such Business Customer.
b. Auto-Renewal. Unless your Premium Services have been paid for by a Business Customer, your Premium Service membership will automatically be extended for successive renewal periods of the same duration selected at the time of your purchase, at the then-current non-promotional subscription rate. Until you cancel, we will charge or debit your payment method at the beginning of your subscription. Your non-cancellation of the Premium Services or continued use of the paid subscription features of the Premium Service will reaffirm that we are authorized to charge you. If your credit or debit account has been closed or your payment method is otherwise invalid, your subscription may not renew and your subscription will be automatically downgraded to the Basic Service effective as of the end of your current billing cycle. The renewal charge will generally 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. If (i) you purchased a multiple-period prepayment plan or (ii) you were eligible for a promotional rate but are no long eligible for that rate, then your subscription will be offered to renew your subscription at our then-current non-promotional subscription rates at the start of the renewal period. If you wish to renew and we are currently offering promotional rates at such time, you must renew your subscription prior to the termination of your current plan. If you fail to renew your subscription for any Premium Services before its scheduled expiration date, then the then-current non-promotional subscription rate will apply.
c. Cancellation of Personal Premium Service Subscription. You can cancel your subscription for our Premium Services at any time by contacting Customer Support at firstname.lastname@example.org or at AVA, 300 TradeCenter, Suite 6750, Woburn MA 01801, Attn: Customer Support, or by such other means as we may provide from time to time. We will attempt to process all cancellation requests within 72 hours after we receive your request. We reserve the right to collect fees, surcharges, or costs incurred before your cancellation takes effect. If you terminate your paid subscription for Premium Service, your subscription will remain active until the end of your then-current subscription period.
d. Refund Policy.
(i) Refund after the Initial Sign-up. Provided you are not in breach of these Terms & Condition, we offer a full refund for those who sign up for a Personal Premium Service and cancel within the first thirty (30) days of your initial purchase (i.e., the first time we charge you). However, because we believe that you will not have had a chance to fully evaluate the benefits we offer through our Premium Services, we require that you schedule at least one (1) call with your Coach (hereinafter defined) before you seek a refund. Provided that you have had at least one call with your Coach (hereinafter defined) before you cancel your Personal Premium Services, we will issue a full refund and your account will revert to Basic Services.
(ii) Exceptions. If you choose to cancel your subscription beyond the first 30-day time period, or if you cancel your subscription within the first 30-day time period but fail to schedule a call with our Coach, then any amounts paid prior to your cancellation will not be refunded. Following cancellation, your Premium Services will expire at the end of the applicable period, and your account will revert to Basic Services.
e. Membership through Business Customers. For Business Premium Services users, the Business Customer paying for your Business Premium Service subscription controls such an account (which may be different from your personal account) and may terminate your access to AVA Premium Services. You agree that we will not be liable to you or any third-party for any termination or cancellation of your access to, or use of, our Premium Services that were originally provided to you by such Business Customer. If your had Business Premium Service subscriptions paid through a Business Customer but you are no longer eligible to receive such benefit from the Business Customer, it is also possible that your Business Premium Service account will terminate, and you will have to sign up for a new account.
f. Modifications. We reserve the right to revise the terms of the fee charge, cancellation and refund policies, upon reasonable advance notice communicated to you through a posting on the Website and/or SMS or such other means as we may deem appropriate from time to time (including electronic mail or conventional mail). Any changes made will apply to all memberships created or renewed after the date such change was implemented.
BY ENGAGING WITH AVA, YOU ARE PARTICIPATING VOLUNTARILY AND YOU ASSUME FULL RESPONSIBILITY FOR YOUR HEALTH AND ANY AND ALL RISK OF LOSS, PROPERTY DAMAGE OR PERSONAL INJURY, INCLUDING DEATH, THAT MAY BE SUSTAINED BY YOU AS A RESULT OF SUCH PARTICIPATION. BY CONTINUING TO MAKE USE OF AVA SERVICES, YOU HEREBY RELEASE, WAIVE, DISCHARGE AND COVENANT NOT TO SUE AVA (AND ANY SUCCESSORS-IN-INTEREST THERETO) AND ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS AND AGENTS (COLLECTIVELY, “RELEASEES”) FROM ALL LIABILITY TO YOU AND YOUR PERSONAL REPRESENTATIVES, ASSIGNS, HEIRS AND NEXT OF KIN FOR ANY LOSS OR DAMAGE, AND ANY CLAIM OR DEMAND THEREFOR ON ACCOUNT OF INJURY TO PERSON (INCLUDING DEATH) OR PROPERTY, WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE WHILE YOU ARE PARTICIPATING IN ANY AVA SERVICES.
6. User Provided Content
1. Materials: Any information or material submitted or sent to AVA or otherwise via the Services will be deemed not to be confidential or secret. By submitting or sending information or other material to AVA or otherwise via the Services you represent and warrant that the information is original to you and that no other party has any rights to such information or material. All submitted content may be edited for any purpose.
2. Links: You may be able to link to third parties’ websites (“Links”) from the Services. AVA is not responsible for the content, availability, advertising, products or any other material contained on any third party website, or any additional links contained therein. These Links do not imply any endorsement by, or association with, AVA. In no event shall AVA be liable, directly or indirectly, to anyone for any loss or damage arising from or occasioned by the creation or use of the Links or the information or material accessed through such Links. AVA reserves the exclusive right, at its sole discretion, to add, change, decline or remove, without notice, any Links. All title and intellectual property rights in and to the content of the Links is the property of the respective content owner and may be protected by applicable intellectual property laws.
3. Promotions: From time to time, AVA may offer contests, promotions or games (collectively, “Games”) as part of the Services, which Games may require the completion of registration forms. Upon submission, all registrations become the exclusive property of AVA. Participation in any Game shall be subject to the rules published by AVA with regard thereto, and you agree to release AVA and its affiliates, agents, advertisers, sponsors and promotional partners from all liability arising from participation in any Game located on, or accessed through, the Services. Some Games may offer prizes to participants; all such prizes are subject to the rules of such Game. AVA reserves the right to cancel, terminate or alter any Game or the rules thereof at any time without prior notice.
4. Commercial Transactions: Certain products may be offered for sale on or via the Website. In the event you wish to purchase any of these products, you will be asked by the Website or an authorized third party to supply certain information, including without limitation, your full name, address, telephone number and credit card information. You agree to provide the Website or such third party with the foregoing information as well as any other mandatory information that is accurate, complete and current, and to comply with the terms and conditions of any agreement that you may enter into governing your purchase. You shall be responsible for all charges incurred through your account as well as for paying all applicable taxes. All purchases of products on or via the Services must be made by adults 18 years of age or older.
7. Consent to receive electronic communications from AVA and business customers
b. Service Announcements. In using the Services, you may receive periodic electronic communications from AVA regarding the Services, such as new product offers and other information regarding the Website and/or SMS Services, which are part of the Services and which you cannot opt out of receiving, except for SMS notifications which can be managed as described in Section 2. d. Mobile Services
c. Promotional Communications. You may also receive periodic promotions and other offers or materials AVA believes might be of interest to you. You can opt-out of receiving these promotional messages at any time by (a) following the unsubscribe instructions contained in each message; or (b) changing the messaging preferences in your account.
e. Withdrawing Your Consent. If you later decide that you do not want to receive future Communications electronically, please send an email to email@example.com or a letter to AVA, 300 TradeCenter, Suite 6750, Woburn, MA 01801. Your withdrawal of consent shall be effective within a reasonable time after we receive your withdrawal notice described above. Your withdrawal of consent will not affect the legal validity or enforceability of the Terms provided to, and electronically signed by, you prior to the effective date of your withdrawal. If you withdraw your consent to receive Communications electronically, we may terminate your account and/or access to the Service (or any part thereof).
8. Intellectual Property Rights
“AVA,” “Pocket Coach, Inc,” and all logos, page headers, custom graphics and icons on the Services are trademarks and/or service marks owned by AVA. All other trademarks, product names and company names and logos appearing on the Services are the property of their respective owners.
The Services contain information, data, software, photographs, graphics, videos, text, images, typefaces, sounds and other material (collectively “Content”) that are protected by copyrights, trademarks or other proprietary rights, and these rights are valid and protected in all forms, media and technologies existing now or developed in the future. All Content is copyrighted as a collective work under the United States copyright laws, and AVA owns a copyright in the selection, coordination, arrangement and enhancement of such Content.
You may not modify, remove, delete, augment, add to, publish, transmit, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Content, in whole or in part. All rights to such Content are reserved to their respective copyright owners. Permission is granted to electronically copy and print in hard copy portions of the Website and/or the Services solely for non-commercial, personal purposes. Except as provided in the preceding sentence or as permitted by the fair use privilege under United States copyright laws, you may not upload, post, reproduce or distribute in any way Content protected by copyright, or other proprietary right, without obtaining permission of the owner of the copyright or other proprietary right. Any other use of the Content, including reproduction for purposes other than as noted above, modification, distribution, replication, commercial or other use, without AVA’s prior written permission, is strictly prohibited. If you violate any of these terms, your permission to use the Content will automatically terminate and you must immediately destroy any copies you have of any portion of the Content.
- Copyright Notice and Takedown Procedures: If you are a copyright owner or an agent thereof and believe that any content on the Services infringes upon your copyrights, you may submit a notification to our Copyright Agent with the following information in writing:
- 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 copyrighted work claimed to have been infringed, or, if multiple copyrighted 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 AVA to locate the material (e.g., by providing a URL);
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an email address;
- A statement 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 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.
8. General Disclaimer
THE WEBSITE AND THE SERVICES ARE PROVIDED “AS IS,” “WHERE IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. AVA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO: (i) WARRANTIES CONCERNING AVAILABILITY, ACCURACY, APPROPRIATENESS, RELIABILITY, TIMELINESS, USEFULNESS OR OTHERWISE OF THE CONTENT ON THE WEBSITE OR THE SERVICES; AND (ii) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS DISCLAIMER APPLIES TO ANY DAMAGES OR INJURY CAUSED BY THE SERVICES, INCLUDING, WITHOUT LIMITATION, AS A RESULT OF (1) ANY ERROR, OMISSION OR DEFECT IN THE CONTENT, OR (2) ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, DEFAMATION OR UNDER ANY OTHER CAUSE OF ACTION.
AVA DOES NOT WARRANT OR GUARANTEE (1) THAT ANY PORTION OF THE SERVICES WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR ANYTHING ELSE MANIFESTING CONTAMINATING OR DESTRUCTIVE PROPERTIES, OR (2) THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
9. Limitation of Liability
IN NO EVENT WILL AVA, ITS AFFILIATED ENTITIES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, MEMBERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, SPONSORS, SUCCESSORS OR ASSIGNS (COLLECTIVELY, THE “AVA PARTIES”) BE LIABLE TO ANY PARTY FOR: (i) ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER DAMAGES ARISING IN ANY WAY OUT OF THE AVAILABILITY, USE, RELIANCE ON, OR INABILITY TO USE THE SERVICES, EVEN IF AVA OR ITS AGENTS SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE; (ii) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS OR OTHER INACCURACIES IN, OR DESTRUCTIVE PROPERTIES OF, THE SERVICES; (iii) PERSONAL INJURY OR DEATH CAUSED BY YOUR USE OR MISUSE OF THE SERVICES; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR VIA THE SERVICES; OR (v) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, PERSONAL INFORMATION OR DATA.
AS SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE LIABILITY OF EACH AVA PARTY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Notwithstanding the above, the AVA Parties’ aggregate sole liability for any reason to you, and your sole and exclusive remedy for any cause or claim whatsoever relating to the Website or the Services, shall be limited to the extent of actual damages incurred by you, not to exceed U.S. $500.
You agree to defend, indemnify and hold harmless AVA, its affiliates, officers, directors and employees from any and all claims, liabilities, costs and expenses, including attorneys’ fees, arising from or in connection with (i) your use or misuse of the Website or the Services, (ii) the distribution or transmission of any content or other materials by you or users authorized by you, or (iii) any violation of these Terms by you. v reserves the right to assume the exclusive defense and control of any matter subject to such indemnification and you hereby agree to cooperate with AVA in asserting any available defenses.
Termination and Survival of Certain Provisions
These Terms are effective until terminated by you or AVA. If you no longer agree to be bound by these Terms, you must immediately cease your use of the Website and the Services. Subject to applicable law, AVA reserves the right to suspend or deny, in its sole discretion, your access to all or any portion of the Website or the Services with or without notice. You acknowledge agree that any termination of your access to the Website or the Services may be effected without prior notice, and you further acknowledge and agree that AVA may immediately deactivate or delete your account and all related information and files in your account and bar any further access to such files or the Website or the Services. Further, you agree that AVA and its affiliated entities shall not be liable to you or any third party for any termination of your access to the Website or the Services.
This sentence and the following Sections of these Terms will survive the expiration or termination of these Terms for any reason whatsoever: No Medical Advice, Release, User Provided Content and Communications, Links, Intellectual Property Rights, General Disclaimer, Limitations of Liability, Indemnification, Termination and Survival of Certain Provisions, and General.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by AVA without restriction.
If you have any questions about these Terms or the Services, please contact firstname.lastname@example.org