Effective as of July 1, 2018
The GOMHEALTH.com website (the “Website”) and the GOM mobile application (the “Mobile App”) are owned and operated by GOM, Inc. The Website and the Mobile App (as those terms are defined below) are together referred to as the “Platform.”
Through the Platform, GOM, Inc offers Users certain online weight management tools and services, which include tools such as: online health and wellness coaching; behavior, lifestyle modification, and nutrition information; progress reporting; weight, food and drink and activity tracking, and others (the “Service”).
b. The term “Website” refers to GOM’s website located at https://www.gomhealth.com, all subpages and subdomains, and all content, services, and products available at or through the Website.
c. The term “Mobile App” refers to the GOM mobile application.
d. The terms “GOM,” “We,” and “Us” refer to GOM, Inc., as well as our affiliates, directors, subsidiaries, officers, and employees.
e. The terms “User,” “You” and “Your” refer to the person, company, or organization that has visited or is using the Platform and/or the Service.
f. The term “Content” refers to any and all content provided by GOM, including without limitation, text, documents, information, data, databases, directories, articles, opinions, images, photographs, graphics, trademarks, logos, software, applications, video recordings, audio recordings, sounds, designs, features, listings, links, forms, templates, tools, all printable or downloadable media and other materials that are available on the Platform.
g. “User Generated Content” refers to messages, reviews, comments and other content or created by User.
2. About the GOM Service. The GOM Service is a digital health/SAAS solution for weight management that provides Users with personalized and evidence-based lifestyle modification programs (nutrition, behavior and activity) and coaching for accountability and support.
a. NO MEDICAL ADVICE. GOM is not a medical organization, licensed heath care provider or other medical practitioner. GOM does not offer medical advice or diagnoses or engage in the practice of medicine. The Platform and Service are intended only to assist Users with efforts to manage and/or lose weight and maintain a healthy lifestyle and are not intended in any way as a substitute for professional medical advice, diagnosis or treatment. The Service is not intended to be, and does not constitute, a substitute for professional medical advice, diagnosis or treatment and is offered for informational purposes only. The information and reports generated by us should not be interpreted as a substitute for physician consultation, evaluation or treatment. You should always seek the advice of a licensed physician or other qualified healthcare provider with any questions regarding your medical condition or the use (or frequency) of any medication or medical device. Never disregard professional medical advice or delay seeking it because of something you have read in connection with our services. GOM does not represent or warrant that the Service or any particular feature of it is safe, appropriate or effective for you.
b. No Guarantee of Results. GOM makes no guarantee with regard to any amount of weight loss the User may achieve or the rate at which any such loss may occur.
c. GOM Non-Discrimination Policy. GOM does not discriminate on the basis of race, creed, color, ethnicity, national origin, religion, sex, sexual orientation, gender expression, age, height, weight, physical or mental ability, veteran status, military obligations, or marital status.
3. Use of the Platform and Service. By using or accessing the Platform or Service, you agree to be legally bound and to abide by the terms this Agreement. If you do not abide by these terms at any time, GOM reserves the right to cancel or terminate your subscription and/or access in our sole and absolute discretion and without prior notice. You understand that if you do not abide by the terms of this Agreement, we may immediately deactivate or delete your account and all related information and/or files in or related to your account.
a. User Account Security. In order to access or use the Platform or Service, you will create a personalized account which includes a unique username and a password. You understand that only you may use your unique user name and password. You, and you alone, are responsible for maintaining the security of your account, and you are fully, including financially, responsible for all activities that occur under the account and any other actions taken in connection with the account. You agree to notify GOM immediately of any unauthorized use of account, or any other breaches of security. We will not be responsible for any liabilities, losses, or damages arising out of the unauthorized use of your computer, mobile device, or other computing device and/or account.
c. No Reliance on User-Generated Content. User-Generated Content posted on the Website is provided for informational purposes only, with no assurance that the User-Generated Content is true, correct, or accurate. User-Generated Content is not a substitute for professional advice or a solicitation to offer advice regarding specific facts.
d. Compliance with Laws. You represent and warrant that: (i) you have the authority to, and are of legal age in your jurisdiction to, bind yourself to this Agreement; (ii) your use of the Service will be solely for purposes that are permitted by this Agreement; (iii) your use of the Service will not infringe or misappropriate the intellectual property rights of any third party; and (iv) your use of the Service will comply with all local, state and federal laws, rules, and regulations, and with all other GOM policies.
5. Charges and Fees. As a subscriber to our Service, you agree as follows:
a. Charges. You agree to pay, using a valid credit card, the charges set forth on our Platform, along with applicable taxes, and other necessary charges and fees. GOM reserves the right to amend its pricing at any time upon notice communicated to you via the Platform or other electronic notification, such as email. We will automatically charge your credit card or other account at the start of your selected billing period (i.e. monthly, quarterly, annually), unless you terminate or cancel your subscription before the relevant billing period begins. Each time you access or use the Platform or Service you reaffirm your agreement that we may charge your credit card. In the event we are unable to charge your account, we reserve the right to terminate your access to the Service. You agree that all fees and charges assessed by us are nonrefundable.
b. Subscription Data. For purposes of your use or access of our Platform or Service, including identification and billing, you agree to provide us with true, accurate and complete information as required by the subscription or sign up process (“Subscription Data”), including your legal name, address, telephone number, email address and applicable billing information (e.g., credit card number and expiration date). You acknowledge and agree that we may share your Subscription Data with third parties for the purpose of verifying the information you provide, communicating with you, and billing your credit card or otherwise charging your account. You shall maintain and promptly update the Subscription Data to keep it accurate. If you provide any information that is untrue, inaccurate, or incomplete, or we have reasonable grounds to suspect that such is the case, we reserve the right to suspend or terminate your user account or subscription and refuse any and all current or future use by you of our Service. You are obligated to check to ensure that your Subscription Data is current and accurate, and, if not, to correct or update your Subscription Data including your billing information with us by logging onto your account.
6. Use and Conduct Restrictions. You are allowed to use the Service only in accordance with the following Use Restrictions and Conduct Restrictions.
a. Prohibited Content. You agree that you will not under any circumstances transmit any Content (including software, text, images, or other information) that
i. is unlawful or promotes unlawful activity;
ii. defames, harasses, abuses, threatens, or incites violence towards any individual or group;
iii. is pornographic, discriminatory, or otherwise victimizes or intimidates an individual or group on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
iv. is spam, is machine- or randomly-generated, constitutes unauthorized or unsolicited advertising, chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
v. contains or installs any viruses, worms, malware, Trojan horses, or other content that is designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party;
vi. infringes on any proprietary right of any party, including patent, trademark, trade secret, copyright, right of publicity, or other rights;
vii. impersonates any person or entity, including any of our employees or representatives; or
viii. violates the privacy of any third party.
b. Users Must Be Over Age 18. You represent that you are over the age of 18. GOM does not target our Content to children or teenagers under 18, and we do not permit any Users under 18 to use our Service. If we learn of any User under the age of 18, we will terminate that User’s account immediately.
c. No Liability for User Interactions; GOM May Monitor Interactions. Any liability, loss or damage that occurs as a result of any User interactions, including, without limitation, Job Postings, that you input or receive through your use of the Service is solely your responsibility. At our discretion, we, or technology we employ, may monitor and/or record your interactions with the Service.
7. User-Generated Content. You own your content, but you allow us certain rights to it, so that we can display and share the content you post. We have the right to remove content if we need to.
a. Responsibility for User-Generated Content. You may create content, written or otherwise, while using the Service (“User-Generated Content”). You are solely responsible for the content of, and any harm resulting from, any User-Generated Content that you post, upload, link to or otherwise make available via the Service, regardless of the form of that content. Any liability, loss or damage that occurs as a result of the use of any User-Generated Content that you make available or access through your use of the Service is solely your responsibility. We are not responsible for any public display or misuse of your User-Generated Content.
b. Right to Post. You represent and warrant that you have the right to post all User-Generated Content you submit. Specifically, you warrant that you have fully complied with any third party licenses relating to User-Generated Content and have taken all steps necessary to pass through to end users any required terms.
d. Ownership of User-Generated Content. Except for Content that originates from GOM, we do not claim ownership of any Content that is transmitted, stored, or processed in your account. You retain all ownership of, control of, and responsibility for User-Generated Content you post. You may control access to your User-Generated Content through settings in your user account.
e. License Grant. Solely to allow GOM to use Content you upload to the Service reasonably without violating any rights you have in it, you grant us the following rights: by posting any Content via the Platform, you expressly grant GOM and our successors a worldwide, sublicensable, fully-paid and royalty-free, and non-exclusive license to use, reproduce, display, modify, adapt, distribute, and perform the Content in connection with GOM’s business purpose. This license does not grant GOM the right to sell User-Generated Content or otherwise distribute it outside of our Website. This license will terminate at the time when the Content is removed from the Website.
8. Third Party Content. There may be content from third parties on the Website, such as blog posts written by other users or links to other websites. Because we cannot control that content, we are not responsible for that content or for the websites that content may link to.
a. Access To Third Party Content. By using the Service, you will be able to access Content belonging to or originating from third parties (“Third Party Content”). Your use of the Service is consent for GOM to present this Content to you. You acknowledge all responsibility for, and assume all risk for, your use of Third Party Content.
b. No Responsibility For Third Party Content. As part of the Service, GOM may provide you with convenient links to third party website(s) as well as other forms of Third Party Content. These links are provided as a courtesy to Service subscribers. We have no control over third party websites or content or the promotions, materials, information, goods or services available on them. By linking to such content, we do not represent or imply that we adopt or endorse, nor are we responsible for, the accuracy or reliability of any opinion, advice, or statement made by parties other than GOM. We are not responsible for any Third Party Content accessed through our Website. If you decide to leave the Website and access Third Party Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any such content.
c. No Authorization To Use Third Party Content. This Agreement does not authorize you to distribute, publicly display, publicly perform, make available, alter, or otherwise use any Third Party Content except as permitted by GOM’s terms and conditions.
9. Copyright Infringement and DMCA Policy. If you believe that material located on or linked to by GOM violates your copyright, please notify GOM in accordance with our Digital Millennium Copyright Act Policy.
a. Termination of Repeat Infringer Accounts. GOM respects the intellectual property rights of others and requests that our Users do the same. Pursuant to 17 U.S.C. 512(i) of the United States Copyright Act, we will terminate a User’s access to and use of the Website if, under appropriate circumstances, the user is determined to be a repeat infringer of the copyrights or other intellectual property rights of GOM or others. We may terminate access for participants or users who are found repeatedly to provide or post protected third party content without necessary rights and permissions.
b. DMCA Take-Down Notices. If you are a copyright owner or an agent of a copyright owner and believe, in good faith, that any materials provided on the Service infringe upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (see 17 U.S.C 512) (“DMCA”) by sending a properly formatted take-down notice in writing to GOM’s at firstname.lastname@example.org.
c. Response To DMCA Take-Down Notices. If GOM takes action in response to an infringement notice, it will make a good faith attempt to contact the party that made such content available by means of the most recent email address, if any, provided by that party to GOM. Any DMCA infringement notice may be forwarded to the party that made the content available or to third parties such as ChillingEffects.org.
d. Counter-Notices. If you believe that your User-Generated Content that has been removed from the Website is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content you submitted to the Website, you may send a properly formatted counter-notice to GOM using the contact information set forth above.
e. Response to DMCA Counter-Notices. If a counter-notice is received by GOM, GOM may send a copy of the counter-notice to the original complaining party informing such person that it may reinstate the removed content in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content will be reinstated on the Website in 10 to 14 business days after receipt of the counter-notice.
10. Intellectual Property Notice. GOM retains all ownership of our intellectual property, including our copyrights, patents, and trademarks.
a. No Transfer. GOM retains ownership of all intellectual property rights of any kind related to the Platform and Service, including applicable copyrights, patents, trademarks and other proprietary rights. Other trademarks, service marks, graphics and logos used in connection with the Website and the Service may be the trademarks of other third parties. This Agreement does not transfer from us to you any GOM or third party intellectual property, and all right, title, and interest in and to such property will remain (as between the parties) solely with us. We reserve all rights that are not expressly granted to you under this Agreement.
b. Any trademarks that appear, are displayed, or are used on the Website or as part of the Service are that are registered or common law trademarks or service marks of GOM, Inc. may not be copied, downloaded, reproduced, used, modified, or distributed in any way without prior written permission from GOM, except as an integral part of any authorized copy of the Content.
11. Email Communications. We use email and electronic means to stay in touch with our users.
b. Legal Notice To GOM Must Be In Writing. Communications made through email or the Service’s private messaging system will not constitute legal notice to GOM or any of our officers, employees, agents or representatives in any situation where notice to GOM is required by contract or any law or regulation. Legal notice to GOM must be sent in writing by Certified Mail, Return Receipt Requested to GOM, P.O. Box 1253, Madison, NJ 07940.
12. Cancellation. Upon cancellation or termination of your subscription, we may immediately deactivate your user account and all related information and/or files in your user account and/or bar any further access to such information and/or files, our Platform and the Service. If you cancel before the end of your current paid up billing cycle, your cancellation will take effect immediately and you will not be charged again. We reserve the right to collect fees, surcharges, or costs incurred before your cancellation takes effect, and such collected amounts are nonrefundable.
13. Provisions that Survive Termination. All provisions of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
14. Disclaimer of Warranties. We provide our services and tools on an “as is” basis, and we make no promises or guarantees about the Service. Please read this section carefully; you should understand what to expect.
a. GOM provides the Platform and the Service “as is,” without warranty of any kind. Without limiting the foregoing, GOM expressly disclaims all warranties, whether express, implied or statutory, regarding the Platform and the Service including, without limitation, any warranty of merchantability, fitness for a particular purpose, title, security, accuracy and non-infringement.
b. Specifically, GOM makes no representation or warranty that the information we provide or that is provided through the Platform or the Service is accurate, reliable or correct; that the Service will meet your requirements; that the Service will be available at any particular time or location, that the Service will function in an uninterrupted manner or be secure; that any defects or errors will be corrected; or that the Service is free of viruses or other harmful components. You assume full responsibility and risk of loss resulting from your use of information, content or other material obtained from the Service. Some jurisdictions limit or do not permit disclaimers of warranty, so this provision may not apply to you.
15. Limitation of Liability. We will not be liable for damages or losses arising from your use of the Service or under this Agreement. Please read this section carefully; it limits our obligations to you.
To the extent permitted by applicable law, in no event will GOM be liable to you for any direct damages, such as loss of profits, use, or data, or for any incidental, indirect, special, consequential or exemplary damages, however arising, that result from (i) the use, disclosure, or display of your User-Generated Content; (ii) your use or inability to use the Service; (iii) the termination of the Service, (iv) the Service generally or the software or systems that make the Service available; or (v) any other interactions with GOM or any other User of the Service, whether based on warranty, contract, tort (including negligence) or any other legal theory, and whether or not GOM has been informed of the possibility of such damage, and even if a remedy set forth in this Agreement is found to have failed of its essential purpose. GOM will have no liability for any failure or delay due to matters that are either within or beyond our reasonable control. Some jurisdictions limit or do not permit disclaimers of liability, so certain of these provisions may not apply to you.
17. Release and Indemnification.
a. You agree to indemnify and hold harmless GOM from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Website and the Service, including but not limited to your violation of this Agreement.
b. If you have a dispute with one or more Users, you release GOM from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
a. Governing Law. Except to the extent applicable law provides otherwise, this Agreement between you and GOM and any access to or use of the Website or the Service are governed by the federal laws of the United States of America and the laws of the State of New Jersey, without regard to conflict of law provisions. You and GOM agree to submit to the exclusive jurisdiction and venue of the courts located in the State of New Jersey and County of Middlesex, except as provided below in this Agreement.
b. Severability. If any part of this Agreement is held invalid or unenforceable, that portion of the Agreement will be construed to reflect the parties’ original intent. The remaining portions will remain in full force and effect. Any failure on the part of GOM to enforce any provision of this Agreement will not be considered a waiver of our right to enforce such provision. Our rights under this Agreement will survive any termination of this Agreement.
c. Limitation of Term of Action. You agree that any cause of action related to or arising out of your relationship with GOM must commence within ONE year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
d. Arbitration. Should a dispute arise between you and GOM, we would like to provide you with a neutral and cost-effective means of resolving the dispute quickly. Therefore, for any claim (except for claims for injunctive or equitable relief or claims regarding intellectual property rights) under this Agreement, either party may elect to resolve any dispute arising under this Agreement through binding non-appearance-based arbitration. The party electing arbitration must initiate it through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration will be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions; (b) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
f. International Law. Company makes no representation that the Service is appropriate or available for use in locations outside the United States and accessing the Service is prohibited from territories where such Service is illegal. If you access the Service from other locations, you do so at your own risk and are responsible for compliance with local laws.
g. Section Headings and Summaries Non-Binding. Throughout this Agreement, each section includes titles and brief summaries of the following terms and conditions. These section titles and brief summaries are not legally binding.