By agreeing to these terms and/or by using the Zen Ventures, LLC d/b/a Manifest ('MANIFEST') application or website, USER agrees to bound by all terms and requirements of this agreement. The terms of this Agreement govern USER's use of the MANIFEST software, applications, and products, as defined herein. If USER has executed the PARTICIPANT SERVICES AGREEMENT, it is herein fully incorporated into this agreement. This Agreement revokes or amends all previous written and oral Agreements entered into by USER and MANIFEST prior to the date of execution, with the exception of the PARTICIPANT SERVICES AGREEMENT.
1. RECITALS AND DEFINITIONS
1.1 MANIFEST is the trade name for Zen Ventures, LLC an Arizona Limited Liability Company, and is located at . MANIFEST may be contacted at firstname.lastname@example.org or by mail at 6920 East 1st Ave. Scottsdale, AZ 85251.
1.2 The MANIFEST WEBSITE or WEBSITE includes, but is not limited to, the services, software, and applications created, provided, and sold by MANIFEST.
1.3 The MANIFEST APP or APP is a proprietary software application developed by or for the exclusive use of MANIFEST, its employees, PARTICIPANTs, and USERs.
1.4 A PARTICIPANT is an individual in a contractual relationship with MANIFEST (as defined in 1.1 - 1.3, above), who is utilizing the WEBSITE or APP.
1.5 A USER is an individual who has downloaded or is otherwise using the MANIFEST APP or MANIFEST WEBSITE, whether or not she or he in a PARTICIPANT. All PARTICIPANTS are USERS for purposes of this Agreement.
1.6 A FACILITATOR is a nationally certified, accredited, or otherwise educated professional providing exercise and nutritional guidance employed by MANIFEST.
1.7 A FACILITY MANGER is a professional that manages FACILITATORS at a particular location, or FACILITY, employed by MANIFEST.
1.8 An EXECUTIVE USER is a professional that has some management responsibilities with MANIFEST itself, employed by MANIFEST.
1.9 An ADMINISTRATOR is a professional with software or database experience providing technical guidance and employed by MANIFEST.
2. USER RESPONSIBILITIES
2.1 USER agrees to not reveal USER'S ACCOUNT access credentials to anyone else. USER is solely responsible for maintaining the confidentiality and security of USER'S ACCOUNT and for all activities that occur on or through USER'S ACCOUNT. USER agrees to immediately notify MANIFEST of any security breach of USER'S ACCOUNT. USER agrees that MANIFEST, its members, employees, licensors, and agents shall not be responsible for any losses arising out of the unauthorized use of USER'S ACCOUNT.
2.2 USER agrees to provide accurate information, including medical test results obtained by USER from a certified medical professional, including but not limited to blood testing results for HDL, LDL, total cholesterol, triglycerides, glucose, and A1C.
2.3 USER agrees not to copy, distribute, or disclose any part of the WEBSITE or APP in any medium; probe, scan, or test the vulnerability of any system or network; breach or otherwise circumvent any security or authentication measures; interfere with or disrupt any user, host, or network, for example: don't send a virus, overload, spam, or mail-bomb any part of the WEBSITE or APP; plant malware or otherwise use the WEBSITE or APP to distribute malware; send unsolicited communications, promotions, advertisements, or spam; send altered, deceptive or false source-identifying information, including 'spoofing' or 'phishing'; publish anything that is fraudulent, misleading, or infringes another's rights; impersonate or misrepresent USER'S affiliation with any person or entity; sell, trade, resell, transfer or otherwise exploit for any unauthorized commercial purpose the WEBSITE or APP; violate the law in any way, violate the privacy of others, or defame others (for example, sending illegal or defamatory emails using the WEBSITE or APP).
2.4 USER agrees and represents that he or she is over the age of 13, and therefore can form a binding contract with MANIFEST.
2.5 USER agrees that the WEBSITE or APP, including but not limited to that which is described in paragraphs 1.2 and 1.3 of these TERMS, contains proprietary information and material that is owned by MANIFEST and/or its licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. USER agrees that USER will not use such proprietary information or materials in any way whatsoever except for use of the WEBSITE or APP in compliance with these TERMS. No portion of the WEBSITE or APP may be reproduced in any form or by any means, except as expressly permitted in these terms. USER agrees not to modify, rent, lease, loan, sell, distribute, or create derivate works based on the WEBSITE or APP in any manner, and USER shall not exploit the WEBSITE or APP in any unauthorized way whatsoever, including, but not limited to, by trespass or burdening network capacity.
2.6 USER agrees that any information submitted as feedback or ideas about the WEBSITE or APP, including improvements, is done without financial gain or other recognition. MANIFEST is free to use the information or share it with others. MANIFEST may use a similar idea improvement, developed by MANIFEST employees or obtained from another source.
2.9 USER agrees and acknowledges that participation in the WEBSITE or APP is voluntary. USER understands and acknowledges that MANIFEST makes no guarantee of any specific result(s).
3. MANIFEST RESPONSIBILITIES
3.1 The WEBSITE and APP are services that help USER manage USER'S participation in MANIFEST'S services on USER'S computing device(s), including participating in MANIFEST'S phases.
3.2 When USER adds USER'S account information to the WEBSITE or APP, USER authorizes MANIFEST to securely access USER'S ACCOUNT using an identity management service provider. USER'S passwords are never stored on MANIFEST'S server. MANIFEST reserves the right to change the identity management service provider at any time for any reason.
3.3 MANIFEST agrees that USER retains ownership of any intellectual property rights that USER holds in USER'S information. These TERMS do not give MANIFEST any rights to USER'S intellectual property except for the rights MANIFEST needs to provide the WEBSITE or APP to USER, as explained in these TERMS. USER is responsible and liable for anything USER copies, shares, uploads, downloads, attaches, sends, receives, records or otherwise does while using the WEBSITE or APP, and USER represents that USER'S information is actually USER'S information or that USER has all necessary rights to use USER'S information on or through the WEBSITE or APP.
4.1 MANIFEST and USER
4.1.1 Use of the APP requires USER to download a client software package. To use the APP, USER must have a device that is compatible, so MANIFEST cannot guarantee that the APP will work on USER'S device.
4.1.2 MANIFEST grants USER a limited, nonexclusive, nontransferable, revocable license to use the WEBSITE or APP, solely to access the WEBSITE or APP. USER'S license to use the WEBSITE or APP is automatically revoked if USER violates these TERMS.
4.1.3 USER may not copy, modify, distribute, sell, or lease any part of the WEBSITE or APP or included software, nor may USER reverse engineer or attempt to extract the source code of that software (unless laws prohibit those restrictions or USER has MANIFEST'S written permission to delete the copyright and other proprietary rights notices on the WEBSITE or APP).
4.2 USER and APPLE
4.2.1 USER acknowledges and agrees these TERMS are solely between USER and MANIFEST, not APPLE, and that APPLE has no responsibility for the WEBSITE or APP or the content sent or received using the WEBSITE or APP. USER'S use of the WEBSITE or APP must comply with the APP STORE TERMS OF SERVICE. USER acknowledges that APPLE has no obligation whatsoever to furnish any maintenance and support of MANIFEST services.
4.2.2 If the APP fails to conform to any applicable warranty, USER may notify APPLE, and APPLE will refund the purchase price of the APP to USER; to the maximum extent permitted by applicable law, APPLE will have no other warranty obligation whatsoever with respect to MANIFEST, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these TERMS and any law applicable to MANIFEST as provider of the software.
4.2.3 USER acknowledges that APPLE is not responsible for addressing any claims of USER or any third party relating to the WEBSITE or APP or USER'S possession and/or use of the WEBSITE or APP, including, but not limited to: (i) product liability claims; (ii) any claim that the WEBSITE or APP fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these TERMS and any law applicable to MANIFEST as provider of the software.
4.2.4 USER acknowledges that, in the event of any third party claim that the WEBSITE or APP, or USER'S possession and use of the WEBSITE or APP, infringes that third party's intellectual property rights, MANIFEST, not APPLE, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these TERMS.
4.2.5 USER and MANIFEST acknowledge and agree that [APPLE or APP MARKETPLACE], and APPLE'S subsidiaries, are third party beneficiaries of these TERMS as relates to USER'S license of the WEBSITE or APP, and that, upon USER'S acceptance of the terms and conditions of these TERMS, APPLE will have the right to enforce these TERMS as relates to USER'S license of the WEBSITE or APP against USER as a third party beneficiary of the software.
4.3.1 MANIFEST may issue upgraded versions of the WEBSITE or APP. USER agrees that these TERMS will apply to all such upgrades.
4.3.2 Any third-party code that may be incorporated in the WEBSITE or APP is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code.
4.3.3 The foregoing license grant is not a sale of the WEBSITE or APP or a copy of the WEBSITE or APP, and MANIFEST and MANIFEST'S partners and suppliers retain all rights and interest in the WEBSITE or APP. Any attempt by USER to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these TERMS, is void. We reserve all rights not expressly granted under these TERMS.
4.3.4 MANIFEST is constantly changing and improving the WEBSITE or APP. MANIFEST may add or remove features, and while MANIFEST will do its best to give USER advance notice about any major changes, USER understands and acknowledges that MANIFEST may stop, suspend, or change the WEBSITE or APP at any time without prior notice. MANIFEST may also remove content from the WEBSITE or APP at MANIFEST'S discretion.
5.1 Data MANIFEST Collects
5.1.1 MANIFEST collects, and associates with USER'S ACCOUNT, information like USER'S name, contact information, payment information, fitness goals, medical test information, food and beverage intake, physical activity, and messaging between USER and FACILITATORS. All information is provided to MANIFEST from USER through the WEBSITE or APP, and is not subject to HIPPA restrictions.
5.1.2 MANIFEST does not manage USER'S access to USER'S ACCOUNT. A third party identity management service provider controls access to USER'S ACCOUNT, including but not limited to managing usernames and passwords, and allowing USER to access USER'S ACCOUNT with other service providers (for example logging in with a USER'S Facebook account). In no event shall MANIFEST nor the third party identity management service provider be liable for special, indirect, punitive, exemplary, or consequential damages, including without limitation lost profits, revenues or savings, or loss of data, arising out of or relating to loss of access to USER'S ACCOUNT, even if MANIFEST or the third party identity management service provider has been advised of the possibility of such damages in advance.
5.1.3 When USER uses MANIFEST'S services, MANIFEST stores, processes, and transmits USER'S files (including information like USER'S medical test results, structured data, and messages) and information related to them (such as document creation dates for an uploaded medical test).
5.1.4 MANIFEST collects information from and about the devices USER uses to access the services. This includes information like IP addresses, the type of browser and device USER uses, and identifiers associated with USER'S device(s). USER'S device(s) (depending on their settings) may also transmit location information to the services.
5.1.5 MANIFEST uses technologies like cookies and pixel tags to provide, improve, protect, and promote MANIFEST'S services. For example, cookies help MANIFEST remember USER'S username for USER'S next visit, understand how USER is interacting with MANIFEST'S services, and improve MANIFEST'S services based on that information. USER can set USER'S browser to not accept cookies, but this may limit USER'S ability to use the services.
5.1.6 MANIFEST may utilize the location services of USER'S device(s) to determine a USER'S general location for marketing purposes. Otherwise, MANIFEST does not currently utilize the location services of USER'S device(s).
5.2 Who MANIFEST Shares Information With
5.2.1 MANIFEST may share information as discussed below, but MANIFEST will not sell information to advertisers or other third-parties.
5.2.3 A FACILITATOR may access the information of a particular USER who is associated with a particular FACILITY when the FACILITATOR is associated with the particular FACILITY.
5.2.4 FACILITY MANAGERS may access the information of any USER who is associated with a particular FACILITY when the FACILITY MANAGER is associated with the particular FACILITY. The FACILITY MANAGER may also access aggregated data related to USERS or FACILITATORS associated with the particular FACILITY.
5.2.5 EXECUTIVE USERS may access the information of any USER, FACILITATOR, or FACILITY MANAGER. The EXECUTIVE USER may also access aggregated data related to USERS, FACILITATORS, FACILITY MANAGERS, or FACILITIES.
5.2.6 ADMINISTRATORS may access any information related to MANIFEST services or USERS when necessary to perform maintenance on or improvement of MANIFEST'S services.
5.2.7 MANIFEST may disclose USER information to third parties if MANIFEST determines that such disclosure is reasonably necessary to (a) comply with the law; (b) protect any person from death or serious bodily injury; (c) prevent fraud or abuse of MANIFEST or MANIFEST'S users; or (d) protect MANIFEST'S property rights.
5.3 How MANIFEST Protects USERS Information
5.3.1 MANIFEST has a team dedicated to keeping USER information secure and testing for vulnerabilities. MANIFEST also continues to work on features to keep USER information safe.
5.3.2 MANIFEST will retain information USER stores on MANIFEST'S services for as long as MANIFEST needs it to provide USER the services. If USER discontinues use of MANIFEST'S services, MANIFEST will retain this information, but will deactivate PATRICIPANT'S ACCOUNT. MANIFEST will utilize this information to improve MANIFEST'S services, evaluate FACILITATORS and FACILITY MANAGERS, and to advertise new services or renewal of services to USERS.
5.4 Where USER Data is Stored
5.4.1 To provide USER with the services, MANIFEST may store, process and transmit information in the United States. Information may also be stored locally on the USER'S device(s) used to access the Services.
5.4.2 Currently, MANIFEST does not provide access to international USERS. Accordingly, international laws regarding privacy of information are not applicable to MANIFEST'S services.
6.1 USER agrees to the definition of USER in paragraph 1.4 above.
6.2 Notwithstanding any other provision of these TERMS, MANIFEST and its licensors reserve the right to change, suspend, remove, or disable access to MANIFEST products, services, software, or other materials comprising a part of the WEBSITE or APP at any time without notice. In no event will MANIFEST be liable for making these changes. MANIFEST may also impose limits on the use of USER'S access to certain features or portions of the WEBSITE or APP, in any case and without notice or liability.
6.3 All copyrights in and to MANIFEST (including the compilation of content, postings linked to other internet resources, and descriptions of those resources) and related software are owned by MANIFEST and/or its licensors, who reserve all rights in law and equity. THE USE OF THE WEBSITE OR APP OR ANY PART OF THE WEBSITE OR APP, EXCEPT FOR USE OF THE WEBSITE OR APP AS PERMITTED IN THIS AGREEMENT, IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS AND MAY SUBJECT USER TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT INFRINGEMENT.
6.4 MANIFEST, the MANIFEST logo, and other MANIFEST trademarks, service marks, graphics, and logos used in connection with the WEBSITE or APP are trademarks or registered trademarks of MANIFEST. Other trademarks, service marks, graphics, and logos used in connection with the WEBSITE or APP may be the trademarks of their respective owners. USER acknowledges that USER is granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks.
6.5 All other intellectual property rights of the WEBSITE or APP (including utility patents, design patents, and trade secrets) and related software are owned by MANIFEST and/or its licensors, who reserve all rights in law and equity. THE USE OF THE WEBSITE OR APP OR ANY PART OF THE WEBSITE OR APP, EXCEPT FOR USE OF THE WEBSITE OR APP AS PERMITTED IN THIS AGREEMENT, IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS AND MAY SUBJECT ME TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES, FOR PATENT INFRINGEMENT OR TRADE SECRET VIOLATIONS.
6.6 USER acknowledges that MANIFEST makes no guaranties, warranties, or other endorsements regarding the WEBSITE or APP. The WEBSITE or APP is provided on an 'as-is' and 'as available' basis. Use of the WEBSITE or APP is at USER'S own risk. To the maximum extent permitted by applicable law, the WEBSITE or APP are provided without warranties of any kind, whether expressed or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Without limiting the foregoing, MANIFEST and its licensors, do not warrant that the content is accurate, reliable or correct; that the WEBSITE or APP will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the WEBSITE or APP are free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the WEBSITE or APP is downloaded at USER'S own risk and USER will be solely responsible for any damage to USER'S computer system or mobile device or loss of data that results from such download or use of the WEBSITE or APP.
6.7 USER acknowledges that these TERMS are the sole and entire agreement between USER and MANIFEST, and there is no agreement, either oral or in writing, which modifies the terms of these TERMS, with the exception of the USER SERVICES AGREEMENT as noted above. No statement, promise, or inducements made by MANIFEST, any of its members, employees, licensors, or agents that is not expressly contained in this written TERMS shall be valid or binding. Any enlargement, modification, or alteration of these TERMS is binding only if executed in writing and signed by USER and a MANIFEST managing member.
6.8 USER agrees that USER cannot assign any of USER'S rights under these TERMS absent the express, written consent of MANIFEST.
6.9 USER agrees that USER has been provided the opportunity to have independent counsel review these TERMS prior to USER'S agreement to same.
7. INDEMNITY, WAIVER, AND ASSUMPTION OF RISK
7.1 USER agrees to defend, indemnify and hold harmless MANIFEST and its subsidiaries, agents, licensors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) USER'S use of and access to the WEBSITE or APP, including any data or content transmitted or received by USER; (ii) USER's violation of any term of these TERMS; (iii) USER'S violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (iv) USER'S violation of any applicable law, rule or regulation; (v) any claim or damages that arise as a result of any of USER'S information that is submitted via USER'S ACCOUNT; or (vi) any other party's access and use of the WEBSITE or APP with USER'S unique username, password or other appropriate security code.
7.2 USER agrees that USER is willingly and voluntarily using the WEBSITE or APP. USER agrees to WAIVE, RELEASE, DISCHARGE, AND HOLD HARMLESS MANIFEST AND ITS AGENTS, OFFICERS, PRINCIPALS, EMPLOYEES, AND VOLUNTEERS OF ANY AND ALL LIABILITIES, CLAIMS, DEMANDS, ACTIONS OR CAUSES OF ACTION, OR DAMAGES OF ANY KIND RELATED TO, ARISING FROM, OR IN CONNECTION WITH USER'S USE OF THE WEBSITE OR APP, INCLUDING THOSE ALLEGEDLY ATTRIBUTED TO THE NEGLIGENT ACTS OR OMISSIONS OF THE ABOVE-IDENTIFIED PARTIES.
7.3 The WEBSITE or APP is controlled and operated from facilities in the United States. MANIFEST makes no representations that the WEBSITE or APP is appropriate or available for use in other locations. Those who access or use the WEBSITE or APP from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations
7.4 These TERMS shall be binding on USER and USER'S successor, representative, heirs, executors, assigns, or transferees. If any portion of this Agreement is deemed invalid, USER understands that the remainder of the Agreement shall remain in full force and effect.
8. CHANGES TO THESE TERMS
8.1 MANIFEST may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to USER via email notice, written or hard copy notice, or through posting of such notice on the WEBSITE or APP, as determined by MANIFEST in MANIFEST'S sole discretion.
8.2 MANIFEST reserves the right to determine the form and means of providing notifications to USERS, provided that USER may opt out of certain means of notification. MANIFEST is not responsible for any automatic filtering USER or USER'S network provider may apply to email notifications MANIFEST sends to the email address USER provides MANIFEST.
8.3 MANIFEST may, in its sole discretion, modify or update these TERMS from time to time, and so USER should review this page periodically. When MANIFEST changes the TERMS in a material manner, MANIFEST will update the Ôlast modified' date at the bottom of this page. USER'S continued use of the WEBSITE or APP after any such change constitutes USER'S acceptance of the new TERMS OF SERVICE. If USER does not agree to any of these terms or any future TERMS OF SERVICE, do not use or access (or continue to access) the WEBSITE or APP.
9.1 The provisions of these TERMS shall be governed and interpreted in accordance with the laws of the State of Arizona, without reference to conflicts of laws principles.
9.2 Any controversy or claim arising out of or relating to these TERMS or breach thereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association at Maricopa County, Arizona or another venue agreed to by the parties, and judgment upon the award entered by the arbitrator(s) may be entered in any court having jurisdiction thereof; provided, notwithstanding such rules, only one arbitrator shall preside at such arbitration.
9.3 If a party to these TERMS shall default under or breach any term or condition of these TERMS, such party agrees to pay on demand all costs and expenses of the non-breaching party in connection with said default or breach by the breaching party, including all attorneys' fees, costs and expenses incurred by the non-breaching party in enforcing any term or provision of these TERMS.