TERMS OF SERVICE
Last Updated March 6, 2018
These Terms and Conditions of Use (“Terms”) apply to and govern your subscription, use of, and access to the Wholesum Food Calculator (“Wholesum”), that we provide. Throughout this Agreement, the terms “the Company,” “we,” “us,” and “our” refer to Keough Solutions LLC. By using Wholesum, you expressly agree to these Terms and any of the related policies or guidelines, including any subsequent changes or modifications to them. If you do not agree to these Terms or any changes, do not access or otherwise continue to use Wholesum.
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ABRITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
"Content" means any expression fixed in a tangible medium and includes, without limitation, ideas, text, comments, video, audio, images, graphics, designs, drawings, animations, logos, trademarks, copyrights, information, data, software, scripts, executable files, recipes, workouts, likes, activities, maps, routes, nutritional information and data, and any intellectual property therein, any of which may be created, submitted, or otherwise made accessible on or through the Site and/or Services.
"Wholesum Content" means all Content that is not user generated content.
“Services” means all services accessed through the Site;
“Site” means whlsum.com, wholesumfoodcalc.com its subdomains and/or mobile applications.
HARDWARE, SOFTWARE AND CONNECTIVITY
You are responsible for maintaining an account with the email service through which you connect to the Site and Services, as well as any other services necessary to connect to the Site and Services, and you are responsible for any fees, including internet connection, mobile data services and similar third-party fees that you incur when accessing the Site and/or Services.
USE OF SERVICES AND YOUR ACCOUNT
Who Can Use the Services? The Site and Services are not intended for and should not be used by Children under the age of 13. If you are under the age of majority in your local jurisdiction and your parent or legal guardian has not accepted these Terms, you are not permitted to access or use the Site and/or Services and you must exit the Site, cease using the Site and/or Services immediately until your parent or legal guardian has accepted these Terms. Wholesum requires that all users of the Site and/or Services adhere to these Terms. Please note that all persons who are under the age of majority in their local jurisdiction must have their parent or legal guardian accept these Terms on their behalf and take full responsibility for compliance with these Terms by all persons who access or use the Site and/or Services and for whom they are legally responsible. By accessing or using the Site and/or Services and/or permitting access to the Site and/or Services by a person below the age of majority in your local jurisdiction (each a “Permitted Minor”), and/or by clicking a box or button, or allowing a Permitted Minor to click a box or button, that states that you accept or agree to these Terms, you confirm your acknowledgment and acceptance of these Terms and you hereby guarantee that such Permitted Minor shall adhere to these Terms. If you are a Permitted Minor or otherwise under the age of majority in your local jurisdiction, you represent and warrant that your parent or legal guardian has accepted these Terms and has guaranteed your adherence to these Terms.
You are responsible for protecting the confidentiality of your Login Information, and for restricting access to your computer, device or media system platform, and you agree to accept responsibility for all activities that occur under your Account. You are not permitted to share your Account or Login information or to allow any other person to access to your Account. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Login Information or your Account, or any other security breach involving your Account or the Site and/or Services at [email protected] We are not responsible for any unauthorized access of your Account or Login Information even if you have advised us of a such. You are responsible for all activities that occur under your Account, including but not limited to purchases, whether or not such activities have been authorized by you. Wholesum strives to ensure the security of user’s data and accounts, however, we cannot guarantee that unauthorized third parties will not circumvent our security measures.
We hereby apprise you that leaving your Wholesum application or webpage open, however convenient, poses a security risk for you and/or any Permitted Minor and we strongly recommend that you logoff and exit the Account at the end of each session.
Accessing your Account. Each time that you and/or a Permitted Minor log into and access an Account, you represent and warrant that:
Updates and Discontinuance of Site or Services. You acknowledge and agree that the Site and Services are under continual development and may include public patches and/or updates, which are generally available to all users, or private patches and/or updates which are available to a smaller number of users for testing and feedback before being made generally available. You further acknowledge and agree that you may be required to accept public patches and updates to the Site and/or Services from time to time in order to continue to access the Site and/or Services and your related Account. You acknowledge and agree that Wholesum may update, modify, patch and/or discontinue any aspect of the Site and/or Services, by remotely installing updates and patches or otherwise, without your consent or approval and with or without prior, or any, notice to you and that the Terms apply to those updates and modifications. We do not have any obligation to provide updates or modifications or to continue to provide particular Services.
You acknowledge that it may be necessary for you to update or upgrade third party software, hardware and devices from time to time in order to continue to access and use the Site and/or Services and your related Account(s). Wholesum reserves the right to modify or increase the system specifications necessary to access and use the Site and/or Services at any time and without notice and you are responsible for purchasing any necessary additional technology, systems or services in order to continue to access and use the Site and/or Services and/or your related Account in the event of any change in the system specifications. Wholesum reserves the right, at any time and without notice or liability to you, to update, modify and/or reset certain parameters of the Site and/or Services any of which may impact the status, progress or achievements of items or features under your control or associated with your Account.
Account Monitoring and Suspension. Wholesum may monitor, terminate or suspend your Account or our Services at any time. Wholesum may immediately, and without prior notice, terminate your ability to access the Site and/or Services or portions thereof for any reason including, without limitation: (i) if you or any Permitted Minor violate or otherwise fail to strictly comply with any term or provision of these Terms, (ii) if we have determined that your use has created or potentially created risk or legal exposure for Wholesum, or (iii) in response to requests by law enforcement or other government agencies. Upon termination for any reason, you must cease use of your Account, cease accessing the Site and Services and promptly destroy all electronic and other copies of all Content, including all related documentation. You acknowledge and agree that any termination or suspension of your Account may be made by us in our sole discretion and that we shall not be liable to you or any third-party for any termination or suspension of your Account, your access to the Site or Services or for the removal of any of the materials uploaded or contributed by you to the Site.
Consent to Receive Communications. You consent to receive electronic communications from Wholesum either in the form of email sent to you at the email address listed on your Account or by communications posted on the Site. You acknowledge and agree that any electronic communication in the form of such email or posting on the Site shall satisfy any legal requirement that such communication be in writing. Upon registering an Account, you may receive email communications regarding the operations of our Services. You cannot opt out of receiving these communications while you continue to use our Services. You may also receive promotional emails while you use our Services. You can opt out of these emails at any time by using the unsubscribe feature located in the footer of such email.
Data Collection and Ownership. Wholesum may collect data which is anonymous and associated with your computer, mobile device, and/or media system platform and which includes, but is not limited to, your city, actions you take within and outside the Services, your hardware/software/firmware, the browser you use, the date and time of your use of the Services, your in-media time, activities, purchases, and in full compliance with Privacy laws, and on an aggregated and anonymous basis, your entries, data and notes, recipes, and profile ("Usage Data"). You agree that your contribution to the Usage Data will be owned by Wholesum without providing compensation to you or any other person and without any liability whatsoever.
If you choose to subscribe to our Services, these are the payment and billing terms that apply. Paid services and billing will auto-renew unless you cancel. You may cancel at any time but no refunds will be issued after renewal charges have been applied.
Payment Terms. We offer a subscription to the Services (the “Subscription”) for a fee. By subscribing for the Services, you agree to our Terms, and any additional terms and conditions that are provided here. The Subscription provides you access to certain features and functionality (including, for example, our mobile app, recipe integration, and meal plans). By signing up for and using the Subscription, you agree to pay any fees or other incurred charges that apply. When you sign up for a Subscription, you must designate and provide information about your preferred payment method (“Payment Method”). This information must be complete and accurate, and you are responsible for keeping it up to date. You hereby expressly authorize us to collect from your Payment Method the appropriate fees charged for the Subscription. You can choose to pay for the Subscription on a monthly or annual basis. All fees due for the Subscription are payable in advance, and will be billed automatically to the Payment Method at the start of the monthly or annual Subscription period, as applicable. Unless otherwise stated, the Subscription will auto-renew until you elect to cancel your access to the Subscription. When you provide any payment account information to Wholesum, you represent to Wholesum that you are the authorized user of that payment account.
Termination and Cancellation of the Subscription. If you do not pay the fees due for your Subscription, we may make reasonable efforts to notify you and resolve the issue; however, we reserve the right to disable or terminate your access to Wholesum with or without notice to you.
You may cancel your Subscription at any time through your Account settings. The cancellation of a Subscription will go into effect at the end of your current billing cycle, and you will have the same level of access through the remainder of such billing cycle. For example, if you are billed on a monthly basis and cancel during a given month, you will be charged for the entirety of that month and maintain access through the end of that month. There are no refunds for termination or cancellation of your Subscription. Wholesum reserves the right, but without any obligation, to review its no refund policy upon request and on a case by case basis.
Fee Changes. To the maximum extent permitted by applicable laws, we may change the fee we charge for the Subscription at any time. We will give you reasonable notice of any such pricing changes by posting the new prices on or through the Site and/or Services and/or by sending you an email notification. If you do not wish to pay the new fee, you can cancel prior to the change going into effect.
Refunds, Renewal and Cancellation. When you sign up for a recurring subscription, or other ongoing Services, you have the right to cancel the recurring arrangement at any time. The period for any auto-renewal or recurring arrangement will be the same as the period you originally ordered unless otherwise disclosed to you at the time of purchase. The charges made in connection with any auto-renewal or recurring arrangements will also be at the same rates as were in effect at the time of your original order unless we give you prior notice of any change to such charges before such charges are made for any subsequent renewal period. If you cancel an auto-renewal or recurring arrangement, you will not be entitled to a refund and the cancellation will be effective at the end of the then current recurring period unless you request an earlier termination date in writing.
Promotional Accounts. You acknowledge that we may, but are not obligated to, offer certain accounts on a trial and/or promotional basis (a "Trial Account"). You further acknowledge and agree that we may limit the number and usage of such accounts in our sole and absolute discretion. If you have acquired a Trial Account, you agree that we may solicit your Feedback concerning your use of the Site and/or Services and your user experience. Trial Accounts may have limited access to the Site and/or Services. In order to obtain full access to the Site and/or Services, you may be required to purchase and/or subscribe to certain Services.
CONTENT OWNERSHIP AND USE
Trademarks, Logos and Wholesum’s Branding. The trademarks, logos, signs, symbols, images and brands (“Marks”) displayed on the Site are the property of Wholesum and/or our partners and third-party licensors. You are prohibited from using any Marks for any purpose including, but not limited to, use as metatags on other pages or sites on the Internet without the written permission of Wholesum or such third party which may own the Marks, which permission may be withheld in the sole discretion of the owner of the relevant Marks. All Content available on or through the Site and/or Services is protected by copyright and/or other intellectual property laws. You are prohibited from modifying, copying, distributing, transmitting, displaying, publishing, selling, licensing, creating derivative works or using any Content for commercial and/or public purposes.
Suggestions and Feedback. You agree that any and all creative ideas, concepts, notes, drawings, suggestions, feedback or other information that you may provide to Wholesum, whether solicited or unsolicited, as a user or otherwise, ("Feedback") will be owned by Wholesum, without providing compensation to you or any other person and without any liability whatsoever, including all intellectual property rights therein and you hereby irrevocably assign all intellectual property rights throughout the world and in perpetuity in and to the Feedback to Wholesum and waive all moral rights you may have therein. Upon request from Wholesum and at Wholesum’s expense, you will fully cooperate and assist with, execute and deliver all further documents to enable Wholesum to document, acquire, apply for, prosecute, perfect or enforce any intellectual property rights in the Feedback. If for any reason Wholesum is unable to secure any necessary documentation from you to effect the foregoing further assurances, then you irrevocably designate and appoint Wholesum and its duly authorized officers and agents as agent and attorney in fact, to act for and on your behalf for the purpose of documenting, acquiring, applying for, prosecuting, perfecting or enforcing such intellectual property rights in the Feedback.
Limited End User License. Subject to your strict compliance with these Terms, Wholesum hereby grants you a limited, revocable, non-exclusive, personal, non-transferable license, without the right to sublicense, to access and use the (i) Site, and (ii) Services which you have downloaded, installed, purchased or subscribed for, as applicable, on a single computer, mobile device or media platform ("License"). You shall not acquire any ownership rights in the Wholesum Content or in any of the Services or the Site. Except as expressly permitted under these Terms you will have no rights to, either directly or indirectly, own, use, loan, sell, rent, lease, license, sublicense, assign, copy, translate, transmit, modify, adapt, enhance, improve, create any derivative works from the Site, and/or Services, disclose any part or feature of the Site, and/or Services that Wholesum has not publicly disclosed, or to display, distribute, publicly perform or any other way exploit, the Site, Services or the Wholesum Content in whole or in part. You acknowledge and agree that we may modify, suspend or remove any Content or features of the Site, and/or Services at any time. You hereby acknowledge and agree that the information made available to you under the License is Wholesum’s exclusive property and is of essential value to Wholesum and you shall not aggregate and/or republish, in whole or in part, any of the information.
End-User License Term. The term of your License commences on the date of your acceptance of these Terms and shall end on the earlier date of your or Wholesum’s suspension or termination of your Account. Your License shall terminate immediately, automatically and without notice if you attempt to circumvent any technical protection measures used in connection with the Site and/or Services or you otherwise breach these Terms.
INTELLECTUAL PROPERTY RIGHTS
Wholesum’s Intellectual Property. Wholesum’s trademarks, service marks, names, logos and domain names (collectively, our "IP"), and the look and feel of the Site are our property. All right and title in and to the IP is and will remain the property of Wholesum and your access to the Site and use of the Services is subject to the Terms, including the License.
In using our IP, you must not:
THIRD PARTY LINKS AND SERVICES
The Site may contain links to websites and other resources operated by third parties other than Wholesum. Such links are provided solely as a convenience to you. Wholesum does not control such websites, and is not responsible for the content, products, services or information offered by any third parties. The inclusion of links to such websites on the Site does not imply any endorsement of any website or the content, products or services offered, advertised, endorsed or promoted by any third party, or of any company or person. If you decide to access any third-party websites or acquire any third-party products or services, you do so entirely at your own risk, and you may be subject to the terms and conditions and the privacy policies imposed by such third parties.
Third Party Services and Logins. Some of the Services may be accessible, or give you the ability to use the Services, on or through a website, service or device not controlled by Wholesum. For example, you may download, install or access the Services through a mobile or web-based online market place or have the option to use the Services online on servers not owned or controlled by Wholesum, or Wholesum may make the Services available through servers that are not owned or controlled by Wholesum. Wholesum takes no responsibility for your access to or use of the Services through or on any third-party device or service not controlled by Wholesum and in which Wholesum otherwise has no control over how such services are offered, administered or operated. Any such use of services not controlled by Wholesum is at your own risk and may subject you to additional or different terms and conditions imposed by the third party that owns and controls such services.
Third Party Content. Our Services may contain links to other Linked Sites that are not owned or controlled by us and we are not responsible for the content of any Linked Sites. The presence on the Site of a link to any other Linked Site does not imply that we endorse or accept any responsibility for the content or use of such Linked Site.
Third Party Products. Some of our Services may be accessed on third-party devices and other products (“Third Party Products”). While we may recommend, promote, or market the products of certain partners, we have no responsibility for your acquisition or use of any Third-Party Products, and we do not guarantee that Third-Party Products will function with the Services or will be error-free. We hereby disclaim liability for all Third-Party Products, including any Third-Party Products offered by our partners.
The Site may be available through certain mobile devices. You acknowledge and agree that Wholesum is not responsible for ensuring that your mobile device’s software is compatible with the Site or that you can use or access the Site and/or the Services through your mobile device. If you are accessing our Services through applications, you should check with your carrier to understand what data and messaging rates will apply. In addition, the terms and conditions of the app store from which you are downloading any app will also apply.
Mobile Application License. We hereby grant you a personal, non-exclusive, non-transferable, non-sub-licensable, revocable license to use our applications downloaded directly from a legitimate marketplace, solely in object code format and solely for lawful purposes. With respect to any open source or third-party code that may be incorporated in the applications, such open source code is covered by the applicable open source or third-party end user license agreement, if any, authorizing use of such code.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, ALL CONTENT AND SERVICES ON THE SITE OR OBTAINED FROM A WEBSITE TO WHICH THE SITE IS LINKED (A “LINKED SITE”), ARE PROVIDED TO YOU “AS IS” AND "AS AVAILABLE" WITHOUT ANY WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY, SUITABILITY OR ACCURACY. WHOLESUM DOES NOT ENDORSE AND IS NOT RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT MADE OR ACCESSED THROUGH THE SITE, SERVICES OR A LINKED SITE BY ANY PARTY, OR THE CAPABILITIES OR RELIABILITY OF ANY PRODUCT OR SERVICE OBTAINED FROM A LINKED SITE. EXCEPT AS REQUIRED UNDER APPLICABLE CONSUMER PROTECTION LAW, UNDER NO CIRCUMSTANCE WILL WHOLESUM BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A USER’S RELIANCE ON CONTENT OBTAINED THROUGH THE SITE, SERVICES OR A LINKED SITE, OR A USER’S RELIANCE ON ANY PRODUCT OR SERVICE OBTAINED FROM A LINKED SITE. IT IS THE RESPONSIBILITY OF THE USER TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SITE, SERVICES OR OBTAINED FROM A LINKED SITE. PLEASE SEEK SOME JURISDICTIONS MAY NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES AND THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU TO THE EXTENT DISCLAIMED.
WHOLESUM DOES NOT WARRANT, ENDORSE, GUARANTEE, PROVIDE ANY CONDITIONS OR REPRESENTATIONS, OR ASSUME ANY RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY ANY THIRD PARTY THROUGH ANY WEBSITE THAT CAN BE REACHED FROM A LINK ON THE SITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING ON THE SITE, AND WHOLESUM SHALL NOT BE A PARTY TO ANY TRANSACTION THAT YOU MAY ENTER INTO WITH ANY SUCH THIRD PARTY.
LIMITATION OF LIABILITY
THE CONTENT, SERVICES, AND/OR SERVICES PUBLISHED ON THE SITE OR A LINKED SITE, OR INCLUDED IN THE CONTENT OR SERVICES, MAY INCLUDE INACCURACIES OR ERRORS, AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, WHOLESUM SPECIFICALLY DISCLAIMS ANY LIABILITY FOR SUCH INACCURACIES OR ERRORS. CHANGES ARE PERIODICALLY MADE TO THE CONTENT ON THE SITE OR LINKED SITES OR CONTAINED IN THE SERVICES. WHOLESUM MAY, BUT IS NOT OBLIGED TO, MAKE IMPROVEMENTS OR CHANGES TO THE SITE AND/OR SERVICES AT ANY TIME.
YOU AGREE THAT WHOLESUM AND ANY OF ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS WILL NOT BE LIABLE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, EQUITY OR UNDER ANY OTHER LEGAL THEORY, FOR ANY PERSONAL INJURY, LOSS, ACCIDENT OR DEATH OR ANY DIRECT, INDIRECT, PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, COST OF PROCURING SUBSTITUTE SERVICE OR LOST OPPORTUNITY) ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SITE AND/OR SERVICES OR A LINKED SITE, OR FOR ANY DELAY OR INABILITY TO USE THE SITE AND/OR SERVICES OR A LINKED SITE, EVEN IF WHOLESUM IS MADE AWARE OF THE POSSIBILITY OF SUCH INJURY, LOSS, ACCIDENT, DEATH OR DAMAGES. THIS LIMITATION ON LIABILITY INCLUDES, BUT IS NOT LIMITED TO, THE TRANSMISSION OF ANY VIRUSES, MALWARE OR MALICIOUS SOFTWARE WHICH MAY INFECT A USER’S EQUIPMENT OR DEVICES, FAILURE OF THE SERVICES TO BE COMPATIBLE WITH YOUR HARDWARE OR SOFTWARE, FAILURE OF MECHANICAL OR ELECTRONIC EQUIPMENT OR COMMUNICATION OR INTERCONNECT LINES OR FIBER, OR OTHER CONNECTIVITY PROBLEMS (e.g., YOU CANNOT ACCESS YOUR INTERNET SERVICE PROVIDER), UNAUTHORIZED ACCESS, THEFT, LOSS OF DATA, LOSS OF CONTENT, OPERATOR ERRORS, STRIKES OR OTHER LABOUR PROBLEMS OR ANY FORCE MAJEURE EVENT. WHOLESUM CANNOT AND DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED, ERROR FREE OR SECURE ACCESS TO THE SITE, OR SERVICES. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL WHOLESUM BE LIABLE TO YOU FOR ANY AMOUNT THAT EXCEEDS THE AGGREGATE OF ALL AMOUNTS PAID BY YOU TO WHOLESUM.
APPLICABLE LAWS MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. HOWEVER, EVEN IF THIS IS THE CASE, IN NO EVENT SHALL THE TOTAL LIABILITY OF WHOLESUM FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION AND COSTS AND EXPENSES (INCLUDING LEGAL FEES) WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), EQUITY OR UNDER ANY OTHER LEGAL THEORY, RELATED TO YOUR USE OF, OR THE INABILITY TO USE, THE SITE AND/OR SERVICES EXCEED THE AGGREGATE OF ALL AMOUNTS PAID BY YOU TO WHOLESUM.
YOU HEREBY AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS WHOLESUM AND ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS, ADMINISTRATORS AND ASSIGNS (THE "INDEMNIFIED PARTIES") FROM AND AGAINST ALL LIABILITIES, CLAIMS, ACTIONS, CAUSES OF ACTION, COSTS AND EXPENSES (INCLUDING LEGAL EXPENSES ON A FULL INDEMNITY BASIS AND ANY OTHER FEES AND EXPENSES INCURRED FOR INVESTIGATING OR DEFENDING ANY ACTION OR THREATENED ACTION, AS WELL AS SETTLEMENT COSTS) WHICH ANY OF THE INDEMNIFIED PARTIES MAY SUFFER OR INCUR IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RESULTING FROM: (I) YOUR AND/OR A PERMITTED MINOR’S VIOLATION OF ANY OF THESE TERMS, (II) YOUR AND/OR A PERMITTED MINOR’S USE OR MISUSE OF THE SITE AND/OR SERVICES, INCLUDING BUT NOT LIMITED TO YOUR AND/OR A PERMITTED MINOR'S PERSONAL INJURY OR DEATH, (III) YOUR AND/OR A PERMITTED MINOR’S USE OR MISUSE OF ANY LINKED SITES, (IV) YOUR AND/OR ANY PERMITTED MINOR’S VIOLATION OF ANY LAW OR THIRD PARTY'S RIGHTS.
WITHOUT DEROGATING FROM OR EXCUSING YOUR OBLIGATIONS UNDER THIS SECTION WE RESERVE THE RIGHT (AT YOUR EXPENSE), BUT ARE NOT UNDER ANY OBLIGATION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER WHICH IS SUBJECT TO AN INDEMNIFICATION BY YOU EVEN IF YOU CHOOSE TO DEFEND OR SETTLE IT. YOU AGREE NOT TO SETTLE ANY MATTER THAT IS SUBJECT TO AN INDEMNIFICATION BY YOU WITHOUT FIRST OBTAINING OUR EXPRESS APPROVAL.
These Terms and your legal relationship with Wholesum, shall be governed by and construed in accordance with the laws of the State of Montana, together with the federal laws of the United States applicable therein, without regard to its conflicts of laws principles. The controlling language of these Terms is English.
DISPUTES, ARBITRATION, JURISDICTION AND VENUE
You and Wholesum agree that any dispute, claim or controversy arising out of or relating to these Terms, any policy referred to herein, or the breach, termination, enforcement, interpretation or the validity thereof, or the use of the Site, Services or Content (collectively, the “Disputes”) will be brought only on an individual basis and not in a class, consolidated or representative action. Except where prohibited, you and we agree to submit to the personal and exclusive arbitration of disputes relating to your general use of the Services under the rules of the American Arbitration Association. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
Any arbitration, to the extent necessary, will be conducted in Missoula, Montana, and you waive any right to claim that such location is an inconvenient forum. You agree not to sue us or bring arbitration in any other forum.
The arbitration will be conducted in English. A single independent and impartial arbitrator will be appointed pursuant to the rules of the American Arbitration Association. Both you and we agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens for everyone involved: the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement describing the reasons for the disposition of any claim.
You also acknowledge and understand that, with respect to any dispute with us arising out of or relating to your use of the Services:
If this arbitration provision is found to be null and void, then all disputes arising under the Terms between us will be subject to the jurisdiction of the state and federal courts located in Montana, and you and we hereby submit to the personal jurisdiction and venue of these courts.
In the event of any litigation or arbitration arising from or related to these Terms, or the Services provided, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred including staff time, court costs, attorneys’ fees, and all other related expenses incurred in such litigation or arbitration.
International Use. This Site is operated from and Wholesum is headquartered in the State of Montana, U.S. By electing to access this Site and/or Services from any jurisdiction outside of the U.S., you accept full responsibility for ensuring that your use of the Site and/or Services is in compliance with all laws applicable within that other jurisdiction. Wholesum makes no representation that materials, products and services available on or through the Site and/or Services are appropriate or available for use in jurisdictions outside of the U.S. You are not permitted to access the Site and/or Services from any jurisdiction in which the Content is illegal and/or accessing the Site and/or Services is illegal. You may not use, export or re-export any materials from this Site and/or Services in violation of any applicable laws or regulations.
Waiver and Severability. The failure of Wholesum to enforce any right or provision of these Terms will not constitute a waiver of such right or provision. In the event that any provision of these Terms is held to be invalid or unenforceable by any court of competent jurisdiction, that provision shall be enforced to the maximum extent permissible and the remaining provisions of the Terms will remain in full force and effect. All remedies of Wholesum hereunder shall be cumulative.
Assignment. You may not assign any of your rights or obligations hereunder, whether voluntarily or by operation of law except with the prior express written consent of Wholesum, which consent may be withheld by Wholesum acting in its sole discretion, and any attempted assignment in violation of the foregoing is void. Wholesum may assign any or all of its rights and obligations hereunder to an affiliate, subsidiary or a successor in title to the Site and/or the business and undertaking of Wholesum.
Force Majeure. Wholesum will not be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of events beyond the reasonable control of Wholesum, including without limiting the foregoing where the delay or failure is due to fires or fire related hazards, explosions, power outages, earthquakes, floods, spills, epidemics, acts of God, war or acts of war, acts of terrorism, riots, strikes, lockouts or other labor or contractor actions, acts of public authorities, or delays or defaults caused by common carriers, or other similar events which cannot reasonably be foreseen or provided against.
Notices. Any notices or other communications permitted or required hereunder, including but not limited to modifications to these Terms and/or any policy referred to herein, will be in writing and given by Wholesum (i) via email (in each case to the email address provided by you for your Account(s)) or (ii) by posting to the Site. Notice delivered by email will be deemed to have been received on the date on which such notice is transmitted.
Survival. The provisions of these Terms which require or contemplate performance after the expiration or termination of these Terms shall remain enforceable notwithstanding such expiration or termination.
Contact us via email at: [email protected]
Last updated March 6, 2018
What information do we collect?
There are two types of information we may collect through your access to and use of Wholesum:
“Personal Information” means information about an identifiable individual. Personal Information may include, but is not limited to, a person’s name, email address, residential address, precise geolocation information (i.e., your specific location), telephone number, payment card information, transaction history, and other billing information.
“Non-Personal Information” means information that does not identify you and cannot be used to contact you personally and may include your date of birth, age, postal code and non-precise geolocation information (e.g., your city), as well as information about your computer, mobile device, and/or media system platform and their hardware/software/firmware and including but not limited to your unique device ID, Internet Protocol (IP) address, or other persistent identifiers. Non-Personal Information also includes “Usage Data” which is anonymous data associated with your computer, mobile device, and/or media system platform, that includes, in-media time, activities, purchases, and on an aggregated and anonymous basis, your entries, data and notes, recipes, and profile.
How do we collect your information?
Wholesum will not sell or disclose your name, email address or other personal information to third parties without your explicit consent, except as specified in this policy. Wholesum may require additional information, such as billing and payment information (including billing address, telephone number, credit card information), a telephone number, and/or a physical address. Credit card information on an account may be stored and used for billing purposes.
Wholesum automatically receives and records some information from your browser when you visit the site, such as your IP address, cookies and data about which pages you visit on the site through the use of log files provided by our third-party tracking-utility partners. This information helps us analyze and understand how the site works for customers and visitors, and provide a more personalized experience for members and visitors.
Wholesum may receive or collect information (for example: email address) about a person who is not yet a registered Wholesum customer in connection with certain Wholesum features, including the free trial period.
Wholesum uses the information described in this policy to provide and improve our services, for billing and payments, for identification and authentication purposes, to contact members, and for general research and aggregate reporting.
How do we protect your information?
Personal information collected by Wholesum is stored in secure operating environments that are not open to the public. Only those employees who need access to your personal information in order to do their jobs are allowed access. While we strive to safeguard your personal information once we receive it, no transmission of data over the Internet or any other public network can be guaranteed to be 100% secure.
Do we disclose any information to outside parties?
California Online Privacy Protection Act Compliance
California Civil Code Section 1798.83 permits customers of Wholesum who are California residents to request certain information regarding its disclosure of personal information to third parties for direct marketing purposes. To make such a request, please contact us at the address listed under the heading “Contacting Us” below.
Children's Online Privacy Protection Act Compliance
Wholesum recognizes the privacy interest of children and we encourage parents and guardians to take an active role in their children’s use of our Site and/or Services. Our Site and/or Services are not intended for children under the age of 13. No one under the age of 13 may provide any information to or on the Site. We do not target our Site and/or Services to children under the age of 13. Wholesum does not knowingly collect or use any Personal Information from children under the age of 13. If we learn we have collected or received personal information from a child under 13 without verification of parental consent, we will delete that information. If you believe we might have any information from or about a child under 13, please contact us at the address listed under the heading “Contacting Us” below If you are between the age of 13 and 18, please obtain your parents' or legal guardian's permission before accessing or using any of our Site and/or Services or providing us with any Personal Information.