Asken is a smartphone application and internet website provided by Asken Inc. (hereinafter, the “Company”) and developed exclusively to promote healthy diets and help users maintain healthy lifestyles. These Terms of Service (the “Terms”) govern your use of Asken’s mobile applications (the “Applications”), and our websites, including http://www.askendiet.com (the “Websites”). The Applications and the Websites may hereinafter be referred to collectively as the “Services.”
Additional terms posted on the Websites or the Applications, as well as clauses separately established by the Company in relation to the Services (“Separate Clauses”), are incorporated into and will form part of these Terms. If such additional terms, Separate Clauses, or other explanations of the Services stated in any related materials are contradictory with these Terms, these Terms will prevail.
You must accept these Terms to use the Services, and your first use is regarded as agreement to these Terms. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT USE THE SERVICES.
PURPOSE & AGE REQUIREMENTS
The purpose of the Services is not medical treatment. All content included in the Services, including but not limited to writing, images, voices, and motion video, are general information for helping users improve their diets and lifestyles. NOTHING IN THE SERVICES SHOULD BE CONSIDERED A SUBSTITUTE FOR MEDICAL DIAGNOSES OR THE ADVICE OF DOCTORS, PHARMACISTS, OR OTHER MEDICAL PROFESSIONALS.
In some cases, meals and exercises recommended by Asken may not be appropriate for people with certain conditions, illnesses, allergies, or for women who are pregnant. IF YOU HAVE ANY QUESTION ABOUT WHETHER YOU SHOULD USE THE SERVICES, CONSULT A DOCTOR. IF WHILE USING THE SERVICES YOU EXPERIENCE ANY MEDICAL ABNORMALITY OR DISCOMFORT, STOP USING THE SERVICES IMMEDIATLEY AND CONSULT A DOCTOR.
The Services are intended for people ages 15 years or older. People between the ages of 15 and 18 should obtain the consent of a parent or guardian before using the Services.
Any individual or corporation wishing to use the Services may register for the Services by agreeing to these Terms and providing the Company with the information required by the Company for registration (“Information for Registration”). The Company will judge whether to accept each application by a party wishing to be registered (an “Applicant”) in accordance with the relevant criterion established by the Company and will, if accepting the application, notify the Applicant that registration has been completed and the Applicant is a member of the Services (a “Member”).
An agreement concerning the use of the Services, entered into between the Company and each Member based on these Terms, (a “Use Agreement”) will be regarded as established between a Member and the Company at the time of the completion of the registration process described above, and the Member may use the Services in accordance with these Terms.
The Company may refuse to register or re-register the Applicant as a Member if:
(1) There is any falseness, error, omission, or the like in the Information for Registration provided by the Applicant;
(2) The Applicant is a minor, adult ward, person under curatorship, or person under guardianship, and has not acquired the consent of his or her legal representative, curator, or guardian to use the Services;
(3) The Company judges the Applicant to be a person or entity having formerly violated a Use Agreement or other agreement with the Company, or to be a party related to such a person or entity;
(4) The Applicant has previously been deregistered for any of the reasons described below; or
(5) The Company otherwise considers, in its sole discretion, the Applicant’s registration inappropriate.
If an Applicant is rejected, the Company will not be obligated to notify the Applicant of the reason for the rejection. If any Applicant suffers damage due to the Company’s refusal to approve an Applicant, the Company will not be liable to the Applicant for any claims, losses, expenses, injuries, or damages which arise as a result of the refusal to register the Applicant.
CHANGE IN INFORMATION FOR REGISTRATION
If any change occurs in a Member’s Information for Registration, the Member, after logging in, can edit their data directly on their individual profile page or though other methods designated by the Company, in its sole discretion.
MANAGEMENT OF E-MAIL ADDRESS AND PASSWORD
Each Member will keep and manage the e-mail address used for registration, and his or her password for use of the Services, and will not assign or lend the e-mail address or password to any third party, or allow any third party to use or change the e-mail address or password.
The Company will not be liable for any damage to a Member because of improper management or use of a Member’s e-mail address or password, including a third party’s use of the email address or password.
CHARGES AND MANNER OF PAYMENT
Members will pay a flat monthly fee for use of the Services which are designated as “premium” or other such category of Services where fees are charged. Unless otherwise identified by the Company, the Company shall not assess charges or fees for the base Services. Each Member will pay the charges required for use of the Services in such a manner and in accordance with such a classification as are designated by the Company.
In using the Services, a Member will not do any of the following:
(1) Act in violation of any law or regulation;
(2) Attempt to defraud or in any way threaten the Company, another user of the Services, or other third party;
(3) Infringe any Intellectual Property Right, publicity right, privacy right, or any other right or interest of the Company, another user of the Services, or other third party;
(4) Transmit to the Company or other users of the Services any information which:
• The Member knows or has reason to know is false or misleading;
• Includes any violent, cruel, discriminatory, or obscene expression;
• Includes any computer viruses, spam, or other harmful computer programs;
• Includes any expression infringing the honor or credibility of the Company, another user of the Services, or other third party;
• Could further or assist the inappropriate use of drugs or alcohol, or further or assist in a suicide or self-injury;
• Could further or assist the spread of spam, chain mail, or any other similar communication;
• May cause feelings of discomfort, disgust, or distrust in other persons; or
• Is romantic or sexual in nature or designed to attract others for romantic or sexual purposes.
(5) Commit any act which may overload any of the Company’s networks or computer systems, or interfere with or threaten to interfere with the operation of the Services;
(6) Illegally access or attempt to illegally access any of the Company’s networks or computer systems;
(7) Pretend to be or in any way impersonate another party;
(8) Use the e-mail address or password of another user of the Services;
(9) Advertise or solicit business on the Services without advance approval of the Company;
(10) Collect the information of other users of the Services;
(11) Act causing disadvantage, damage, or feelings of discomfort to the Company, another user of the Services, or another third party;
(12) Discriminate against, defame, or damage the credibility of the Company, another user of the Services, or a third party;
(13) Directly or indirectly cause or make easier any of the foregoing acts; or
(14) Act in any other way the Company judges, in its sole discretion, as inappropriate.
SUSPENSION OF PROVISION OF SERVICES
The Company may, without giving prior notice to Members, fully or partially suspend the provision of the Services if:
(1) The Company needs to inspect or perform maintenance of the Company’s networks or computer systems relating to the Services;
(2) A computer, communication line, server, or other service or piece of equipment stops functioning because of circumstances outside the Company’s control;
(3) It becomes impossible to operate the Services due to an act of God, riot, insurrection, demonstration, order or disposition of the public power, default of a trade connection, enactment/amendment/abolishment of an applicable law or regulations, earthquake, lightning, fire, typhoon, flood, power failure or other force majeure; or
(4) The Company otherwise judges the suspension of the Services necessary.
The Company will not be liable to Members for any damage due to a measure taken by the Company based on this Section.
INTELLECTUAL PROPERTY, MEMBER CONTENT
All copyrights, patent rights, utility model rights, design rights, trademark rights, and other intellectual property rights, including rights for acquisition thereof or application for registration thereof (collectively, the “Company’s Intellectual Property”) concerning the Websites or the Services belong to the Company. Neither a Member’s use of the Services nor anything in these Terms shall be construed as granting to Members any rights to or interests in the Company’s Intellectual Property.
Each Member represents and warrants to the Company, with respect to any content contributed or posted by Members using the Services — including but not limited to written content, picture images, voice contents, and motion video that the Member contributes, transmits, or otherwise uses in relation to the Services (“Contributed Content”) — that the Member has the right to do so, and such Contributed Content does not infringe any third party’s right.
By uploading, submitting, or storing Contributed Content to or through the Services, each Member grants to the Company a worldwide, non-exclusive, free, sublicensable and assignable license to use, host, store, reproduce, modify, create derivative works of (such as those resulting from translations, adaptations, or other changes so that the Contributed Content works better with the Services), communicate, publish, publicly perform, publicly display, and distribute the Contributed Content. In addition, each Member will grant to other Members a non-exclusive license to use, host, store, reproduce, modify, create derivative works of, communicate, publish, publicly perform, publicly display, and distribute the Contributed Content. These licenses continue even if a Member stops using the Services.
The Company may delete a Member’s Contributed Content, deregister a Member, terminate the Use Agreement with a Member, or take any other measures the Company considers appropriate against a Member without the need to give a prior notice if:
(1) The Member violates any provisions of these Terms;
(2) There is any falseness in the Member’s Information for Registration;
(3) The Member stops payments, becomes insolvent, or causes his or her credit to significantly decline;
(4) The Member is subjected to an application for attachment, provisionary attachment, provisional disposition, other compulsory execution or auction by a third party, or a disposition for collection of taxes in arrears;
(5) The Member is subjected to an application for the commencement of bankruptcy proceedings, civil rehabilitation, corporate reorganization, special liquidation, or other insolvency arrangements by a third party or the Member (including the case where the Member declares his or her voluntary liquidation);
(6) The Member fails to reply to any inquiry or question by the Company within thirty (30) days of his or her receipt of the inquiry or question;
(7) The Member’s registration or re-registration may have been refused for any reason listed in the “Registration” section above;
(8) The Member commits any fraudulent act or other breach of trust against the Company; or
(9) The Company otherwise judges that the Member’s registration or use of the Services is inappropriate.
If a Member falls under any item of the preceding Paragraph, the Member will be obligated to immediately pay all debts that the Member owes to the Company.
The Company will not be liable for any for any claims, losses, expenses, injuries, or damages which arise as a result of measures taken by the Company based on this Section.
Each Member may withdraw from the membership in the Services by giving a notice to the Company in a manner designated by the Company. If a Member owes any debts to the Company when withdrawing, all such debts shall immediately be paid to the Company. Treatment of the user information of a Member having withdrawn will be in accordance with the terms contained in the “Treatment of User Information” section below.
CHANGE OR TERMINATION OF SERVICES
The Company may change the content of the Services or terminate the provision thereof for any reason. If terminating the Services, the Company will notify all Members in advance. The Company will not be liable for any for any claims, losses, expenses, injuries, or damages which arise as a result of measures taken by the Company based on this Section.
DISCLAIMER OF WARRANTIES
THE SERVICES, INCLUDING ALL INFORMATION, CONTENT, MATERIAL, COMMENTARY, AND SERVICES MADE AVAILABLE ON, OR THROUGH, THE SERVICES, ARE PROVIDED “AS IS.” THE COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER IN CONNECTION WITH ANY INFORMATION, CONTENT, MATERIAL, COMMENTARY, SURVEYS, PRODUCTS, OR SERVICES MADE AVAILABLE ON, OR THROUGH, THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY CONTRIBUTED CONTENT. FURTHER, THE COMPANY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY DOES NOT WARRANT THAT THE TOOLS, TECHNOLOGY, OR FUNCTIONS CONTAINED IN THE SERVICES OR ANY CONTENT, MATERIAL, COMMENTARY, INFORMATION, AND/OR SERVICES CONTAINED THEREIN, WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE SYSTEMS OR THE SERVER(S) THAT SUPPORT THE SERVICES AND MAKE THE SERVICES AVAILABLE WILL BE CORRECTED, OR THAT THE SERVICES AND/OR THE SYSTEMS AND/OR THE SERVER(S) THAT SUPPORT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE COMPANY DOES NOT PROVIDE ACCESS OR CONNECTION TO THE INTERNET AND IS NOT AND SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE ACTIONS OR OMISSIONS OF THIRD PARTIES THAT INTERFERE WITH, LIMIT, RESTRICT, OR PREVENT ACCESS OR CONNECTION TO, OR USE OF, THE SERVICES. THE COMPANY MAKES NO REPRESENTATION OR WARRANTY REGARDING THE IMPACT OR EFFECT OF THE SERVICES ON ANY DEVICES (INCLUDING BATTERY DRAIN) THAT A MEMBER MAY USE TO ACCESS THE SERVICES.
LIMITATION OF LIABILITY
EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAWS, IN NO EVENT WILL THE COMPANY BE LIABLE, OR OTHERWISE RESPONSIBLE, TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR PUNITIVE DAMAGES, FOR ANY REASON(S) OR FOR ANY CAUSE(S), REGARDLESS OF WHETHER THE COMPANY IS INFORMED OF THE POSSIBILITY THAT SUCH DAMAGES MAY EXIST. IN ALL EVENTS, THE TOTAL LIABILITY OF COMPANY TO A MEMBER OR APPLICANT ARISING OUT OF THE SERVICES SHALL BE THE GREATER OF: (A) TWENTY-FIVE U.S. DOLLARS; OR (B) THE TOTAL FEES PAID BY A MEMBER TO COMPANY OVER THE PRIOR 12 MONTHS GIVING RISE TO SUCH CLAIM.
ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SERVICES AND/OR THESE TERMS MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE.
You agree to indemnify, defend, and hold harmless the Company and its parent, affiliated, and subsidiary companies and its and their respective members, managers, shareholders, directors, officers, employees, and agents from and against any and all claims, liabilities, losses, judgments, awards, fines, penalties and costs and/or expenses of any kind, including, without limitation, reasonable attorneys’ fees and court costs, arising out of, resulting from, or caused by, whether directly or indirectly,: (i) your breach or violation of these Terms; and/or (ii) your use of, participation in, and/or access to the Services.
In connection with your use of, access to, and/or participation in the Services, you may have the opportunity to review or access confidential and proprietary information, materials, products, and content (“Restricted Content”) belonging to the Company and/or the Company’s clients, partners and/or licensors. Restricted Content is and shall remain the sole and exclusive property of the owner of the Restricted Content. In no event shall you obtain or receive any right, title, and/or interest in or to any Restricted Content. You agree to protect the confidentiality and secrecy of the Restricted Content and you agree not to modify, copy, reproduce, republish, display, transmit, distribute, reverse engineer, create derivative works of, decompile, or otherwise use, alter, or transfer Restricted Content without the prior express written consent of the Company. You acknowledge and agree that Restricted Content may be subject to, and protected by, intellectual property laws, regulations, and codes. You further acknowledge and agree that if you breach or otherwise violate the restrictions, limitations, and prohibitions contained in this Section, in addition to any other rights or remedies available to the Company, the Company reserves the right to terminate, prohibit or restrict your use of, access to, and/or participation in the Services.
COMPLIANCE WITH APPLICABLE LAWS
You acknowledge and agree that you will comply with all applicable international, national, Federal, state, and/or local laws, codes, regulations, rules and/or requirements regarding your use of, participation in, and/or access to the Services.
TREATMENT OF USER INFORMATION
The Company may, at its discretion, use and publish any information provided by each Member to the Company as statistical information processed in a manner making impossible the identification of the Member.
CHANGE OF TERMS
If we make minor changes to the Terms without materially changing your rights, we will post the modified Terms on https://www.askendiet.com/terms-of-service/. If we make a modification that materially changes your rights, you will be notified by prominent announcements on the Website and/or by pop-up notifications when you log-in. When you use the Services after a modification is posted, you are telling us that you accept the modified terms.
ASSIGNMENT OF STATUS
Members may not assign, transfer, create a security interest in, or otherwise dispose of his or her membership under the Use Agreement, or any of his or her rights and obligations based on these Terms, without the Company’s prior written approval.
In a case where the Company transfers its business involving the Services to any other entity, it may assign and transfer its rights and obligations under the Company’s Use Agreements, its rights and obligations under these Terms, and Members’ information. The business transfer referred to above will include not only business transfers but also company splits and all other cases where the business of the Company is succeeded to.
If any term or provision of these Terms shall be held or declared to be invalid or unenforceable for any reason by any court of competent jurisdiction, such term or provision shall be deemed null and void and shall not affect the application and/or interpretation of these Terms. The remaining terms or provisions of these Terms shall continue in full force and effect, as if the invalid or unenforceable term or provision was not a part of these Terms.
GOVERNING LAW AND COMPETENT COURT
These Terms and the respective Use Agreements will be governed by and construed in accordance with the laws of the State of California. Any and all disputes arising out of or in relation to these Terms or Use Agreements will be subject to the exclusive jurisdiction of the State of California.
BINDING ARBITRATION AND CLASS ACTION WAIVER
In the event of a dispute, you agree to binding individual arbitration before the American Arbitration Association ("AAA") under the Federal Arbitration Act ("FAA"), and agree not to sue in court in front of a judge or jury. Class action lawsuits, class-wide arbitrations, private attorney-general actions, and any other proceeding where someone acts in a representative capacity are not allowed, nor is combining individual proceedings without the consent of all parties.
The term "dispute" is to be construed broadly, and includes any claim or controversy between you and us concerning the Services or these Terms, under any legal theory including contract, warranty, tort, statute, or regulation.
If you have a dispute, send a Notice of Dispute by U.S. Mail to firstname.lastname@example.org, including your name, address, how to contact you, what the problem is, and what you want. After 60 days, you or we may start an arbitration if the dispute remains unresolved. You must file any claim or dispute within one year from when it first could be filed. Otherwise, it's permanently barred.
These Terms govern to the extent they conflict with the AAA’s Commercial Arbitration Rules or Consumer Arbitration Rules.
If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, then those parts will not be arbitrated but will proceed in court, with the rest proceeding in arbitration.
The headings contained in these Terms are for reference only and shall have no affect on the interpretation and/or application of these Terms. The Company’s failure to enforce a breach by you of these Terms shall not waive or release you from such breach and shall not waive, release, or prevent the Company from enforcing any subsequent breach by you of these Terms. These Terms, and any rules, terms, or policies referenced or incorporated herein, represent the entire understanding and agreement between the Company and you with respect to the subject matter hereof.