Last Updated: April 5, 2017
iTOVi, LLC (“iTOVi,” “we” or “us”) provides products and services, including, but not limited to, the iTOVi Nutrition Tracker hardware (the “Hardware”), mobile application (the “App”), related website (the “Site”), the iTOVi Content (as defined below) and the software embedded in the Hardware (collectively, the “Services”). Subject to your acceptance of and adherence to these Terms of Services (the “Terms”), iTOVi grants you a limited, non-exclusive license to utilize the Services on the terms set forth herein. These Terms apply to your access and use of any part of the Services. If you do not wish to be bound by these Terms, do not use any part of the Services. The terms “you” and “user” shall refer to all individuals and entities that access the Services.
- Who May Use the Service
You must be at least 18 years old to use the Services. By using any part of the Services, you agree and acknowledge that you have the right, authority and capacity to enter into these Terms and to abide by all of the terms and conditions of these Terms.
- THE SERVICES ARE NOT A SUBSTITUTE FOR MEDICAL ADVICE
YOU ACKNOWLEDGE THAT THE HARDWARE IS NOT A MEDICAL DEVICE AND THAT THE SERVICES ARE NOT INTENDED FOR USE IN THE DIAGNOSIS, CURE, MITIGATION, TREATMENT OR PREVENTION OF DISEASE OR OTHER CONDITION. The Services are provided for informational purposes only and are not intended to replace your relationship with your physician or other medical provider. We are not a licensed medical care provider and have no expertise in diagnosing, examining, or treating medical conditions of any kind, or in determining the effect of any specific exercise or nutritional supplement on a medical condition. Consult your doctor for proper prevention, diagnosis, and treatment of any medical condition and DO NOT DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE IN RELIANCE ON THE SERVICES. If you think you may have a medical emergency, call your physician or 911 immediately. If you feel discomfort or pain, immediately stop the activity causing such discomfort or pain. Use of the Services should not replace your good judgment and common sense. iTOVi has the right, but not the obligation, to monitor all conduct on and content submitted to the Services.
Use of the Services should not replace your good judgment and common sense. iTOVi has the right, but not the obligation, to monitor all conduct on and content submitted to the Services.
Please read these Terms of Service (“Terms”, “Terms of Service”) carefully before using the iTOVi scanner (“Scanner”) and accessing the information, data, and tools provided thereby (the “Service”) operated by iTOVi, LLC (the “Company”). Your access to and use of the Scanner and Service is conditioned on your acceptance of and compliance with these Terms.
Information contained on or made available through the Scanner and the Service is not intended to and does not constitute medical advice, pharmaceutical advice, or recommendations of any kind, under any circumstance. You should consult with a medical professional before using any dietary supplements or over the counter products.
All information and tools generated or contained in the Scanner or related to the Service are provided without any representations or warranties, express or implied, as to their suitability, completeness, currentness, accuracy, and/or appropriateness. THE SCANNER AND SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND WITH “ALL FAULTS”, AND THE COMPANY DISCLAIMS ANY WARRANTIES, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The Company does not represent or warrant that the Scanner and Services will be error-free, or that defects do not exist.
You agree to indemnify, defend and hold the Company and our partners, members, associates, agents, attorneys, employees, subcontractors, successors, assigns, and affiliates (collectively, “Affiliated Parties”) harmless from any liability, loss, claim and expense related to (a) your use, distribution and/or reliance of the Scanner, the Service and any related tools, information and/or materials derived therefrom. Such indemnity includes reasonably attorney’s fees of the Company and Affiliated Parties associated with the liability, loss, claim or expense.
The content, organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to the Scanner and the Service are protected under applicable copyrights, trademarks and other proprietary (including but not limited to intellectual property) rights and are solely owned by the Company. The copying, redistribution, use or publication by you of any such matters or any part of the Scanner or Service, except as allowed herein, is strictly prohibited. You do not acquire ownership rights to any article, document, tool, or other materials viewed and accessed through the Scanner or Service.
You are granted a non-exclusive, non-transferable, revocable license to access and use the Scanner and Service solely in accordance with this Agreement.
Our Scanner and/or Service may contain links or information related to third-party products or services that are not owned or controlled by the Company. The Company has no control over, and assumes no responsibility for, the goods, products, policies, practices, services or representations of third-parties. You acknowledge and agree that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, or in connection with, the use of or reliance on any such third-party goods, products, policies, practices, services or representations.
You agree that the Company may share your personal information and data, obtained from your use of the Scanner or Service, with third parties.
We may terminate or suspend access to our Service immediately, without prior notice or liability, for any reason whatsoever, including without limitation if you breach the Terms. All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
This agreement shall be treated as though it were executed and performed in Salt Lake City, Utah. Except to the extent governed by the United States Trademark Act of 1946 (Lanham Act, 15 U.S.C. Section 1051 et seq.) or other federal law, this Agreement shall be interpreted under the laws of the State of Utah, without regard to the application of conflicts of law principles. Any judicial action related to the Scanner, Services, or this Agreement shall be brought exclusively in the state courts of the State of Utah or in the federal courts of the United States which are located in Salt Lake County, Utah.
The Company’s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Scanner and Service, and supersede and replace any prior agreements. We reserve the right, at our sole discretion, to modify or replace these Terms at any time.
- License to Use the Services; Ownership
iTOVi grants you a limited, non-exclusive, non-transferable, non-sublicensable license to (1) access and view the iTOVi Content, (2) access and use the Services, and (3) use the software that is embedded in the Hardware as authorized in these Terms. This license is provided solely for your personal use and enjoyment of the Services as permitted in these Terms. For purposes of these Terms, “iTOVi Content” includes any text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services to you. The Services and the underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. You agree not to remove, change or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the iTOVi Services.
You will not use, copy, adapt, modify, reverse engineer, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the iTOVi Content, the Services or any portion thereof, except as expressly permitted in these Terms or on the official iTOVi website, http://www.itovi.com/. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by iTOVi or its licensors, except for the licenses and rights expressly granted in these Terms. Nothing in these Terms conveys to you any ownership, intellectual property rights or other proprietary interest in or relating to the iTOVi Content, the Services or any other iTOVi products or services, or any modifications or derivative works of any of the foregoing. Except as expressly set forth herein, iTOVi reserves all right, title and interest, including all intellectual property and other rights, in and to the iTOVi Content and the Services and all other iTOVi products and services.
We welcome your comments, feedback, suggestions, and other communications regarding the Services (collectively, “Feedback”). While you are not obligated to provide Feedback, in the event that you provide Feedback, you hereby grant to iTOVi a worldwide, non-exclusive, transferable, assignable, sub-licensable, perpetual, irrevocable, royalty-free license to copy, distribute, create derivative works of, publicly display and perform and otherwise exploit such Feedback and to use, make, have made, sell, offer for sale, import and export products and services based on such Feedback. For this reason, we ask that you not send iTOVi any Feedback that you do not wish to license to us as set forth above.
The Services feature product and service names, slogans, custom graphics, icons, logos and service names that are registered trademarks, unregistered trademarks, trade names or service marks of parties other than iTOVi (“Third Party IP”). All Third Party IP is the property of its respective owner. iTOVi is not affiliated with, sponsored by, or in any relationship with the owners of Third Party IP, and iTOVi does not own, license, or have any other rights in Third Party IP. Your use of the Services neither grants nor should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Third Party IP without the prior written consent of the owner of such Third Party IP.
To use certain functionality of the Services, you must register for an account (Account”) by providing your full name, billing and shipping address, valid payment information, email address and password.
If you breach any of the terms of these Terms, all licenses granted by iTOVi, including permission to use the Services, will terminate automatically. Additionally, iTOVi may suspend, disable, or delete your Account and/or suspend or terminate your access to the Services (or any part of the foregoing) with or without notice to you, for any or no reason. If iTOVi deletes your Account for any suspected breach of these Terms by you, you are prohibited from re-registering for the Services under a different name, a different email address, or with a different mobile telephone number. In the event of Account deletion for any reason, iTOVi may, but is not obligated to, delete any of your Account information and content. iTOVi shall not be responsible for the deletion of (or failure to delete) such Content.
You may cease use of the Services at any time, however, you understand that we may not automatically delete your Account information at such time, but expressly reserve the right to do so. If you want iTOVi to delete your Account and your address book information, please email us with such request at firstname.lastname@example.org.
All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of this Agreement by iTOVi or you, including without limitation Sections 6 through 15 inclusively.
- PURCHASES; RETURNS
When you place an order through the Store, you agree that: (i) any credit card information supplied by you is true and complete; and (ii) you will pay the applicable price listed, as well as any shipping and handling charges and applicable taxes. Hardware and Services purchased by you are for personal or gift use and not for commercial use. Should collection become necessary, you agree to pay all costs of collection including an additional collection of 30% of the total amount due. Additionally, you agree to pay all court costs and attorneys’ fees should legal action become necessary.
iTOVi can withdraw Hardware and Services and any other products from the Store at any time and for any reason. Prices listed through the Store, unless otherwise noted, are stated in U.S. dollars and do not include any shipping and handling charges or applicable taxes, which charges and taxes will be communicated to you before you place an order and you are responsible for paying such charges and taxes to iTOVi. You agree to indemnify and hold iTOVi harmless from and against any liabilities, interest, penalties or fees assessed against iTOVi arising from your failure to pay any such taxes. All Hardware and Services prices are subject to change at any time.
ACCEPTANCE AND FULFILLMENT
All orders are subject to acceptance by ITOVi. After you place an order, you will receive an email from iTOVi confirming that iTOVi has received it. Acceptance of your order will occur upon your receipt of another email from iTOVi containing a shipping, tracking and courier information. If an order is on back order, we’ll send you an email indicating that this is the case, followed by another email when the items in question are in stock containing shipping, tracking and courier information. iTOVi reserves the right to restrict the quantities of your order or not to accept your order for any or no reason.
SHIPPING AND DELIVERY
iTOVi will pack the Hardware in accordance with its standard practices. You can choose the method of shipment and timing of delivery for Hardware ordered, and will be charged shipping and handling charges accordingly. Title to the Hardware (except to the extent that the Hardware consist of Software) and risk of loss will pass to you upon iTOVi’s delivery of the Hardware to the carrier. You acknowledge that all scheduled shipment dates are estimates only. iTOVi will make reasonable efforts to meet the scheduled shipment dates, but in no event will iTOVi be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery.
LIMITED HARDWARE WARRANTY
iTOVi warrants to the original purchaser that your Hardware shall be free from defects in materials and workmanship under normal use for a period of one (1) year from the date of purchase. In the event of valid claim of a hardware defect within the warranty period, iTOVi will, at its option, either (1) repair the Hardware at no charge, using new or refurbished replacement parts, or (2) replace the Hardware with new or refurbished Hardware. In the event of a hardware defect, the foregoing is your sole and exclusive remedy. For full details please refer to our Limited Product Warranty.
RETURN POLICY; DISPUTES
If you are unsatisfied with any Product purchased from the Store for any reason, you have 16 days from the date of shipment of your iTOVi Hardware to notify iTOVi in writing that you wish to cancel your Account. In order to be eligible for a full refund, you must obtain a return merchandise authorization (RMA) number. No returns will be accepted without a valid RMA number. Additionally, all components of the Hardware must be received within 30 days of this cancellation notice. Only a partial refund will be given for missing components. Shipping and insurance costs are not to be included in a refund of the Hardware.
In the event that any disputes arise with respect to the Hardware, the Services, or any payments or returns, you agree that you will deal directly with iTOVi with respect to such disputes and that you will not circumvent iTOVi by working directly with your credit card provider. You agree to pay $50 to iTOVi for each dispute that you initiate directly with your credit card provider that results in a chargeback to iTOVi.
COMPATIBILITY AND AVAILABILITY OF THE SERVICES
Effective use of the Services requires a compatible mobile device or other electronic instrument, and Internet access. You acknowledge that you have verified the compatibility of the Hardware you are purchasing with other required equipment (e.g., ensuring that your mobile device and/or operating system is compatible with the Hardware). You are solely responsible for determining the compatibility of the Hardware with other equipment, and you accept that lack of compatibility is not a valid claim under the warranty provided with your Hardware. You acknowledge and agree that system requirements may be changed from time to time by iTovi without prior notice or consent and that your mobile carrier’s standard charges, data rates and other fees may apply. Further, you agree to always use the most recent version of the Services made available by iTOVi.
The Services may contain information on worldwide products and services, not all of which are available in every geographic location. A reference to a product or service on the Site does not imply that such product or service is or will be available in your location. The Hardware as well as any other products referred to on the Site may be subject to different regulatory requirements depending on the country of use. Consequently, visitors may be notified that certain sections of the Site are intended only for certain kinds of expert users or only for audiences in certain countries. You should not construe anything on the Site as a promotion or advertisement for any product or for the use of any product that is not authorized by the laws and regulations of your country of residence.
- Consent to Communication
By using the Services, you agree that we may communicate with you electronically regarding administrative, security and other issues relating to your use of the Services. Communication will be made primarily through use of Short Message Service Text Messages to the mobile phone number used to register your Account. We may also contact you using email (if you have provided your email address) as well on Facebook (if you have linked your Account with your Facebook account). You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. You are responsible for any messaging or data fees you may be charged by your wireless carrier. To withdraw your consent from receiving electronic notice, please notify us at email@example.com.
You agree to indemnify and hold harmless iTOVi, its subsidiaries, affiliates, related parties, officers, directors, employees, agents, suppliers, independent contractors, advertisers, partners and co-branders from any loss, damages, or costs, including without limitation reasonable attorneys’ fees, litigation costs, or court costs, whether or not resulting from any third party or other claim, action, or demand resulting from your use of or access to the Services or the equipment or other goods delivered to you by iTOVi hereunder, your violation of any third party proprietary or other rights, or your breach of these Terms.
- Disclaimer of Warranties; Limitation of Liability
EXCEPT FOR THE LIMITED PRODUCT WARRANTY ON THE HARDWARE DESCRIBED ABOVE AND AT WWW.ITOVI.COM/RETURNS, ITOVI PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPRESSLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. In addition, we make no warranty that the Services will meet your requirements or be available at any time or from any particular location, secure, or error-free, that defects will be corrected, or that the Services are free of viruses or other potentially harmful components. We make no warranty regarding the quality, accuracy, timeliness, completeness or reliability of any iTOVi Content. You acknowledge and agree that if you rely on any iTOVi Content or the iTOVi Services, you do so solely at your own risk.
NEITHER ITOVI, ITS SUPPLIERS OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ITOVI HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL ITOVI’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICE EXCEED THE LESSER OF EITHER (A) THE AMOUNTS YOU HAVE PAID TO ITOVI FOR USE OF THE ITOVI SERVICE, OR (B) IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO ITOVI, ONE HUNDRED DOLLARS ($100.00).
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ITOVI AND YOU.
In some jurisdictions, it is not permitted to limit certain types of liability and therefore such limitations to the extent they exclude such liability may not apply to you. IN SUCH JURISDICTIONS, ITOVI’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
- Dispute Resolution, Arbitration and Class Action Waiver
This Section 11 includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully. You may opt out of the arbitration agreement by following the opt out procedure described below.
Informal Process First
You agree that in the event of any dispute between you and iTOVi, you will first contact iTOVi and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.
After the informal dispute resolution process any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of the Services or any of iTOVi’s other services and/or products, including the Services, or relating in any way to the communications between you and iTOVi or any other user of the Services, will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to you and iTOVi. However, this arbitration agreement does not (a) govern any Claim by iTOVi for infringement of its intellectual property or access to the Services that is unauthorized or exceeds authorization granted in these Terms or (b) bar you from making use of applicable small claims court procedures in appropriate cases.
Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration. Instead, the dispute is resolve by a neutral arbitrator. Court review of an arbitration award is limited. Except to the extent the parties agree otherwise, arbitrators can award the same damages and relief that a court can award. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and iTOVi are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision will survive any termination of these Terms.
If you wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, you must send a letter requesting arbitration and describing your claim to iTOVi, LLC, 480 North 1500 West, Orem, UT 84057. The arbitration will be administered by the American Arbitration Association (AAA) under its rules including, if you are an individual, the AAA’s Supplementary Procedures for Consumer-Related Disputes. If you are not an individual or have used the Services on behalf of an entity, the AAA’s Supplementary Procedures for Consumer-Related Disputes will not be used. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879.
The number of arbitrators will be one. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The arbitration will be conducted in the English language. Utah law will apply. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. If you are an individual and have not accessed or used the Services on behalf of an entity, we will reimburse those fees for claims totaling less than $10,000, unless the arbitrator determines the claims are frivolous, and we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence will not apply to the “Class Action Waiver” section below.
If you do not want to arbitrate disputes with iTOVi and you are an individual, you may opt out of this arbitration agreement by sending an email to firstname.lastname@example.org within thirty (30) days of the first of the date you access or use the Services.
Class Action Waiver
Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). You expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration.
If this class action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, will be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If for any reason a claim proceeds in court rather than in arbitration, you and iTOVi each waive any right to a jury trial.
- Modification of the Terms
- Additional Terms for iTOVi for iOS
These Terms are the complete and exclusive agreement between you and iTOVi with respect to the subject matter of these Terms, and they supersede all prior or contemporaneous, oral or written, proposals, understandings, representations, conditions, warranties, and all other communications between you and iTOVi with respect to the subject matter of these terms. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by iTOVi without restriction. These Terms may not be explained or supplemented by any prior course of dealings or trade by custom or usage. These Terms shall be governed by the laws of the State of Utah, notwithstanding any principles of conflicts of law. The section headings used herein are for convenience only and will not affect the interpretation of these Terms. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of these Terms will be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. No agency, partnership, joint venture, or employment relationship is created as a result of the Terms and neither party has any authority of any kind to bind the other in any respect.
Any questions, complaints or claims with respect to the Services should be directed to:
480 North 1500 West
Orem, UT 84057