Terms of Use

Effective Date: 9/1/2017

PLEASE READ THESE TERMS OF USE CAREFULLY.  BY ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN AND ALL TERMS, POLICIES, GUIDELINES AND DISCLOSURES INCORPORATED BY REFERENCE.  IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THE SERVICE.

These terms and conditions of use (“Terms of Use”) govern your (“you” or “user”) access to, and use of, the services, websites, information, and software applications (collectively, the “Service”) provided and owned by Riverbay Softworks LLC, (“Allergistic,” “we,” or “us”).  These Terms of Use do not alter in any way the terms or conditions of any written agreement you may have with Allergistic.  If you are using the Service on behalf of any entity, you represent and warrant that you are authorized to accept these Terms of Use on such entity’s behalf, and the terms “you” or “user” shall refer to you personally and such entity.

Allergistic reserves the right to change or modify any of the terms and conditions contained in these Terms of Use or any policy or guideline of the Service at any time and in its sole discretion.  Any changes or modifications will be effective immediately upon posting of the revisions on the Service.  Your continued use of the Service following the posting of its changes or modifications will constitute your acceptance of such changes or modifications.  Therefore, you should frequently review these Terms of Use and any applicable policies from time to time to understand the terms and conditions that apply to your use of the Service.  If you do not agree to the amended terms, you must stop using the Service.  You warrant and attest that you are at least eighteen (18) years of age.

All other questions or comments about the Service should be directed to support@riverbaysoftworks.com.

1. Nature of the Service.

Allergistic is a service utilized by health care and other physical medicine, wellness, nutrition, and fitness professionals to gather and transmit information from and to their patients and clients.  Allergistic is not a health care provider and does not screen material posted by its health care provider customers.  No professional relationship is established between Allergistic and users of the Service.

2. Registration.

In order to access most features of the Service, you will be required to register by providing information about yourself and, if you are registering on behalf of an entity, information about that entity (such as identification and contact details).  You agree that any such information you provide is accurate, complete and updated.  You are responsible for maintaining the security and confidentiality of your account password.  You are also solely responsible for all activities that occur through your user ID and password.  You agree not to access or use, or attempt to access or use, the Site or the service or any part thereof using the identity or the registration data of any person other than yourself and you agree not to provide your account password to any third party.  You agree to immediately notify Allergistic of any unauthorized use of your user ID or password.  

 

3. Payment.  

 

If you agree to make a payment through use of the software application or the Site, all charges shall be in U.S. dollars. All payments are handled through the Apple iTunes Store,

4. Privacy, HIPAA

When you accept these terms, you thereby also accept the terms of Allergistic’s Privacy Policy/Notice which describes how Allergistic collects, uses, discloses and protects personally identifiable and health information.

5. Feedback

If you provide us with any feature requests, comments, suggestions or other feedback (“Feedback”), you hereby: (i) agree that such Feedback is provided on a non-proprietary and non-confidential basis, and (ii) grant us a perpetual, non-exclusive, worldwide, fully paid-up, irrevocable license, with the right to sublicense through multiple levels of sublicensees, to incorporate, disclose, and use without limitation the Feedback for any purpose.

6. User Content

Allergistic may allow non-practitioners to post content, such as notes, profiles, photos, text messages, and videos (“User Content”).  Allergistic has the right to refuse any User Content.  You agree that Allergistic, at its sole discretion, has the right to screen, reject, or remove any User Content, or any portion thereof, posted to our servers that infringes our, or any third party intellectual property or other rights, violates these Terms of Use or our other policies, or is otherwise objectionable.  Allergistic reserves the right to disclose any such material posted to our servers as necessary to satisfy any applicable law, regulation, legal process or governmental request.

You agree not to post any of the following in your use of the Service:

a. User Content that is false, deceptive, deceitful, misleading, unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, harmful to minors, fraudulent or otherwise objectionable;
b. User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
c. User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
d. User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
e. Private or confidential information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
f. Viruses, spyware, malware, corrupted data or other harmful, disruptive or destructive files;
g. Any User Content that, in the sole judgment of Allergistic, may expose Allergistic to any harm or liability of any type; or
h. User Content that harasses, degrades, intimidates or is hateful toward an individual or group of individuals for any reason and especially on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability.

By posting User Content, you grant Allergistic and its affiliates a perpetual, irrevocable, worldwide, royalty-free, freely transferable and sub-licensable (through unlimited levels of sublicense) non-exclusive right to create derivative works of, use, reproduce, modify, transmit, publish, display and distribute, such User Content and derivative works for purposes of sharing the information with those chosen by you.  You represent and warrant that: (a) you own and control all of the rights to the User Content that you post or you otherwise have the right to post such User Content and to grant the rights granted herein; (b) the User Content is accurate and not misleading; and (c) distribution of the User Content you supply in accordance with your direction does not violate these Terms of Use and will not violate any rights of or cause injury to any person or entity.  You hereby waive any moral rights you may have in such User Content under the laws of any jurisdiction.  We may (but are not obligated to) display your User Content, including your username and your actual name (according to the preferences you select). 

You should save all of your User Content through alternate storage solutions inasmuch as Allergistic does not warrant the security or reliability of its Services and Allergistic has the right to suspend or terminate the Service at any time without preserving your User Content.

7. Consent to Receive Emails and Notice

As long as you maintain an account, you may not “opt out” of receiving account-related emails from Allergistic.  You are also hereby advised that there are security risks associated with receiving protected health information (PHI) via email and by approving these Terms of Use you agree to take those risks, to receive such emails, and to indemnify Allergistic and your Allergistic healthcare provider for any associated breach of protected health information.  The parties hereto may give legal notice by means of electronic mail, which electronic mail shall be considered delivered when sent.  The notice address of Allergistic shall be support@riverbaysoftworks.com (or such other address as is provided by Allergistic to you via email at your Notice address) and your address for the receipt of notices pursuant to these Terms of Use shall be the current email address listed by you in your account profile.  You also agree, unless you opt out, to receive marketing emails related to the Service.

8. Intellectual Property and Limited License

Ownership of content uploaded to the site by health care and other practitioners is controlled by a separate Practitioner Terms of Use entered into between those practitioners and Allergistic.  Except for User Content and Healthcare Professional Content (as defined in the Practitioner Terms of Use) the Allergistic logo, all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, the “Materials”) are the property of Allergistic and are protected by U.S. and international copyright, trademark laws, patent, and other intellectual property laws.

You are granted a limited, non-sublicensable license to access and use the Service and the Materials.  Such license is subject to these Terms of Use and does not include or authorize: (a) any resale or commercial (non-personal) use of the Service or the Materials therein; (b) the distribution, public performance or public display of any of the Materials; (c) any modification or derivative use of the Service or the Materials, or any portion thereof; (d) any use of automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from the Service; (e) the download (other than page caching) of any portion of the Service, the Materials, or any information contained therein, except as expressly permitted; (f) any attempt to gain unauthorized access to Allergistic’s computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Service or the Site; (g) the collection or harvesting of any personally identifiable information, including, but not limited to, company names, domain names or account names, from the Service, or the use of communication systems provided by the Service for any commercial solicitation purposes; (h) the use of any portion of the Service as a destination linked from any unsolicited bulk messages or unsolicited commercial messages; or (i) any use of the Service or the Materials other than for their intended purpose.  Any use of the Service or the Materials other than as specifically authorized herein, without the prior written permission of Allergistic, is strictly prohibited and will terminate the license granted herein.  Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes.  Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise.  This license is revocable at any time.

Allergistic hereby grants you a limited, non-exclusive right to create a text hyperlink to the Service, provided such link does not portray Allergistic, or any of its products and services (including the Service), in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable.  This limited right may be revoked at any time.


You may not frame or utilize framing techniques to enclose any Allergistic trademark, logo or other proprietary information, without Allergistic’s express written consent.  Except as noted above, you are not conveyed any right or license by implication, estoppel or otherwise, in or under any patent, trademark, copyright or any other proprietary right of Allergistic or any third party.

9. Copyright Policy

Allergistic respects the intellectual property rights of others and expects users of the Services to do the same.  We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us.  If you believe that your copyrighted materials have been copied in a way that constitutes copyright infringement, please provide us with the following information: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) your contact information, including your address, telephone number, and an email address; (v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

We reserve the right to remove content alleged to be infringing without prior notice and at our sole discretion.  In appropriate circumstances, Allergistic will also terminate a user’s account if the user is determined to be a repeat infringer.

10. Trademarks

“Allergistic”, the Allergistic logo and any other product or service name or slogan displayed in or on the Service are trademarks of Allergistic and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Allergistic or the applicable trademark holder.  You may not use any metatags or any other “hidden text” utilizing “Allergistic” or any other name, trademark or product or service name of Allergistic without our prior written permission.  In addition, the look and feel of the Service, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Allergistic and may not be copied, imitated or used, in whole or in part, without our prior written permission.  All other trademarks, registered trademarks, product names and Allergistic names or logos displayed in, on, or through the Service are the property of their respective owners.

11. Disclaimers and Acknowledgements Regarding Use of Site Information

THE SERVICE IS NOT A SUBSTITUTE FOR, AND DOES NOT PROVIDE, MEDICAL ADVICE. THE SERVICE IS PROVIDED FOR PERSONAL EDUCATIONAL, INFORMATIONAL, CONVENIENCE AND ENTERTAINMENT PURPOSES ONLY AND IS NOT TO BE USED FOR THE DIRECTION OF CARE OF INDIVIDUAL PATIENTS UNLESS OTHERWISE EXPLICITLY SPECIFIED.  THE SERVICE IS GENERAL IN NATURE AND IS NOT INTENDED FOR ANY PARTICULAR PURPOSE, INCLUDING, IN ANY WAY, TO BE A SUBSTITUTE FOR A MEDICAL EXAM OR PROFESSIONAL MEDICAL ADVICE, MEDICAL OPINION, DIAGNOSIS OR TREATMENT, SYMPTOM ASSESSMENT, HEALTH COUNSELING OR MEDICAL OPINION FOR END USERS.  THE PURPOSE OF THE SERVICE IS LIMITED TO PROVIDING END USERS WITH ACCESS ONLY TO HEALTH INFORMATION AND OTHER INFORMATION STORED BY SUCH END USERS.  ALWAYS SEEK THE ADVICE OF APPROPRIATELY QUALIFIED AND REGULATED HEALTH PROVIDERS WITH ANY QUESTIONS YOU MAY HAVE WITH REGARD TO A SPECIFIC MEDICAL CONDITION FOR WHICH YOU ARE CONCERNED. IT IS IMPORTANT NOT TO DISREGARD OR DELAY SEEKING CONSULTATIVE ADVICE BECAUSE OF SOMETHING YOU HAVE READ OR VIEWED WHILE USING THE SERVICE.  RELIANCE ON ANY INFORMATION PROVIDED BY THE SERVICE IS SOLELY AT YOUR OWN RISK AND YOU ASSUME FULL RESPONSIBILITY FOR THE USE OF THE INFORMATION.

 

THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED.  ALLERGISTIC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE INFORMATION, CONTENT OR MATERIALS OF THE SERVICE.  ALLERGISTIC DOES NOT REPRESENT OR WARRANT THAT MATERIALS, INCLUDING THE INFORMATION AVAILABLE IN OR ON THE SERVICE, ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE.  ALLERGISTIC DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR ITS SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  ALLERGISTIC IS NOT RESPONSIBLE FOR ERRORS OR OMISSIONS IN ANY INFORMATION OR MATERIALS CONTAINED IN OR ON THE SERVICE OR ACCESSED THROUGH THE SERVICE.  WHILE ALLERGISTIC ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE SERVICE SAFE, ALLERGISTIC CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR ITS SERVER(S), OR ANY CONTENT OR MATERIALS OF THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND NEUTRALIZE VIRUSES, SPYWARE, MALWARE, AND OTHER HARMFUL OR OTHERWISE UNDESIRABLE COMPONENTS FROM ANY DOWNLOAD.

Allergistic reserves the right to change any and all of its content contained in or on the Service at any time without notice.

12. Limitation of Liability

IN NO EVENT SHALL ALLERGISTIC OR ANY OF ITS CORPORATE AFFILIATES, INDEPENDENT CONTRACTORS, SERVICE PROVIDERS OR CONSULTANTS, OR ANY OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES AND AGENTS, BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO OR CONNECTED WITH ANY USE OF THE SERVICE OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION ANY DAMAGES, LOSS OR INJURY CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM ALLERGISTIC, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO ALLERGISTIC’S RECORDS, PROGRAMS OR SERVICES.  THE AGGREGATE LIABILITY OF ALLERGISTIC, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING IN ANY MANNER TO THE USE OF THE SERVICE, SHALL NOT EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO ALLERGISTIC.COM FOR ACCESS TO OR USE OF THE SERVICE.

IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 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.”

13. INDEMNITY

ALLERGISTIC HAS NO KNOWLEDGE OF YOUR MEDICAL CONDITIONS, AND MAKES NO IMPLIED OR EXPRESS WARRANTIES THAT USE OF VIDEOS OR ANY OTHER INFORMATION PROVIDED BY ALLERGISTIC WILL IMPROVE YOUR HEALTH OR FITNESS.  ALLERGISTIC DOES NOT AND CANNOT PRACTICE MEDICINE OR OTHER HEALING ARTS, AND THE TOOLS IT PROVIDES ARE NOT INTENDED TO BE USED BY YOU WITHOUT ACTIVE INVOLVEMENT OF LICENSED HEALTH CARE PROVIDER.

YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS ALLERGISTIC, ITS CORPORATE AFFILIATES, INDEPENDENT CONTRACTORS, SERVICE PROVIDERS AND CONSULTANTS, AND EACH OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES AND AGENTS, FROM AND AGAINST ANY CLAIMS, DAMAGES, COSTS, LIABILITIES AND EXPENSES (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THE SERVICE OR THE MATERIALS, INCLUDING WITHOUT LIMITATION ANY ACTUAL OR THREATENED SUIT, DEMAND OR CLAIM ARISING OUT OF OR RELATING TO THE USER CUSTOMER CONTENT, THE INFORMATION SUPPLIED BY ALLERGISTIC, THE CONDUCT OF YOUR HEALTH CARE PROVIDER, YOUR CONDUCT, YOUR VIOLATION OF THESE TERMS OF USE OR YOUR VIOLATION OF THE RIGHTS OF ANY THIRD PARTY.

14. Arbitration

You and Allergistic agree that except as otherwise specifically provided in this paragraph, any controversy or claim arising out of or relating in any way to these Terms of Use or the breach thereof, or arising out of or relating to the Service shall be resolved exclusively by arbitration administered by the American Arbitration Association (the “AAA”) in accordance with its Commercial Arbitration Rules and, in the case of consumer disputes, with the AAA’s Supplementary Procedures for Consumer Related Disputes (collectively, the “AAA Rules”), and that judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.  Notwithstanding the foregoing, to the extent that either party has in any manner infringed upon or violated or threatened to infringe upon or violate the other party’s patent, copyright, trademark or trade secret rights, then the parties acknowledge that arbitration is not an adequate remedy at law and that without waiving any remedy under these Terms of Use, injunctive or other appropriate relief may be sought from any court specified in the next Section (Applicable Law and Venue).  The place of arbitration and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules.  To the fullest extent permitted by applicable law, no arbitration or claim shall be joined to any other arbitration or claim, and no class arbitration proceedings shall be permitted.  In no event shall any claim, action or proceeding related in any way to the Service be instituted more than two (2) years after the cause of action arose.  In the event that any term of this Section (Arbitration) is held by a court or arbitrator to be in conflict with a mandatory provision of applicable law, such conflicting term shall be modified to comply with such provision and the remainder of this Section shall not be affected.

15. Applicable Law and Venue

These Terms of Use and your use of the Service shall be governed by and construed in accordance with the laws of the United States of America and the State of Washington applicable to agreements made and to be entirely performed within the State of Washington (even if your use is outside of the State of Washington), without resort to its conflict of law provisions.  You agree that with respect to any disputes or claims not subject to arbitration (as set forth above), any action at law or in equity arising out of or relating to the Service or these Terms of Use shall be filed only in the state and federal courts located in King County, Washington and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts.

16. Severability

If any of these Terms of Use should be determined to be invalid, illegal or unenforceable for any reason by any court of competent jurisdiction then such term shall be enforced only to the extent it is enforceable and the remaining terms shall survive and remain in full force and effect and continue to be binding and enforceable.

 

17. Non-assignment

 

Neither party may assign this Agreement without the written consent of the other and any attempt to do so shall be void, except that this Agreement may be assigned as part of a merger or acquisition of substantially all of the assets or stock of the assigning party.

18. Relationship.

You agree that no joint venture, partnership, employment, or agency relationship exists between you and Allergistic.

19. Waiver.

No waiver of any term, provision or condition of these Terms of Use, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof.  No waiver shall be binding unless executed in writing by the party making the waiver.

20. Force Majeure.

If the performance of any part of these Terms of Use by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.

21. Entire Agreement.

These Terms of Use, together with the Privacy Policy, constitutes the complete and exclusive statement of the agreement between the parties with respect to the use of the Service and any acts or omissions of Allergistic, and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties.