THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
This Subscription Agreement ("Agreement") is a legally binding contract between you and Lexington Wellness Holdings, LLC ("Selvera", "we", or "us") and governs your use of the Service (as defined below). Read the terms and conditions of this Agreement carefully before continuing. BY CHECKING THE "I AGREE" BOX FOR ACCOUNT SET UP, YOU CERTIFY THAT YOU ARE AT LEAST 18 YEARS OF AGE, AND YOU INDICATE YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THOSE OF SECTIONS 4 AND 10, REGARDING YOUR ASSUMPTION OF RISK AND THE LIMITATION OF SELVERA'S LIABILITY. IF YOU DO NOT AGREE WITH ANY PART OF THIS AGREEMENT, DO NOT CLICK THE "I AGREE" BOX.
IMPORTANT HEALTH INFORMATION
People with certain conditions may not use the Selvera program; these include, but are not limited to people who: (a) are pregnant, (b) are allergic to soy, dairy or peanuts, (c) have anorexia or bulimia, (d) have chronic kidney disease, or (e) have a condition requiring a gluten-free or ketogenic diet. Anyone under 18 years of age may not be on the Selvera program.
The Selvera program is a comprehensive weight loss program. Please consult your physician before beginning the Selvera program, or any other weight loss program, as changing your diet or exercise, or losing weight, may affect some medical conditions and medications. Your physician may need to adjust your medications due to changes in your diet, exercise, or weight while on this program. You should discuss your continued participation in the Selvera program with your physician if there is any change in your medical condition.
Capitalized terms used in this Agreement have the meaning ascribed to them in this Section.
"Acceptance Date" means the date you indicate your acceptance of this Agreement.
"Client Data" means the data about you that Selvera gathers in the course of providing the Service, including but not limited to, your physical characteristics, eating habits and caloric intake, sleeping habits, changes in weight, and progress with respect to exercises and activities. "Client Data" also includes recordings of videoconferences or telephone conversations and any information that you post on the Selvera-operated website or any Selvera-affiliated electronic interface at any time before, during or after your receipt of Services.
"Confirmation Email" means any e-mails providing instruction on the Services, confirming your Plan selection, participation in the Service, and/or purchase of Services or Products from Selvera.
"Documentation" means, collectively, all client guides, protocols, Plan, Confirmation Email, and other reference materials generally furnished by Selvera with respect to the Service or Products, whether in printed or electronic format, as may be updated by Selvera from time to time.
"Plan" means one or more packages of a defined set of benefits comprising the Service, which are offered to a Client in exchange for the Subscription Fee.
“Products” means, collectively, all meal replacements, vitamins, minerals and supplements and any other physical item offered for sale or made available to you in any way by Selvera.
"Program Guide" means an independent contractor or employee of Selvera who has been engaged or assigned by Selvera to consult with and make recommendations to Selvera's clients as part of the Service.
"Proprietary Information" means all non-public business or technical information or materials disclosed to you by Selvera or any wellness advisor, including the Documentation, any method of carrying out or delivering the Service, and any pricing or commercial terms related to the Service, including the price you have paid for the Plan and Service.
"Devices" means, collectively, the scale, wireless activity tracker, heart rate monitor, and any other equipment provided by Selvera to you as part of the Plan and Service.
"Service" means Selvera's internet-based weight loss and weight management program, which is delivered in one or more Plans or on an ad hoc basis.
"Site" means the Selvera-operated website through which the Service is made available to you.
"Subscription Fee" means, as set forth in the Plan, the charge to the Client for Services provided by Selvera, including any initial or start-up fees.
"Subsidiary" means any entity controlling, controlled by, or under common control of Selvera.
2.1 General. Subject to the terms and conditions of this Agreement, and during the term of this Agreement, Selvera grants you a non-exclusive and non-transferable right to access and use; (i) the Service in accordance with the terms of this Agreement, (ii) a specific Plan, and (iii) any Documentation made available to you by Selvera. The Service has been designed by Selvera with the goal of assisting people who are overweight in weight loss and weight management. You agree that, in order to increase the probability of success in your efforts to lose or manage your weight, you must at a minimum: (a) follow Selvera's protocol, as provided in any Documentation, to the best of your ability; (b) complete all recommended appointments with your wellness advisors; (c) weigh yourself on the Selvera-provided scale every day while not traveling; (d) carry or wear the Selvera-provided wireless activity tracker at all times; and (e) use Selvera’s meal replacement products as provided in any Documentation or proscribed by your wellness advisors, to the best of your ability. EVEN IF YOU CARRY OUT THE FOREGOING REQUIREMENTS, YOU UNDERSTAND AND AGREE THAT INDIVIDUAL RESULTS VARY, AND THAT SELVERA DOES NOT GUARANTEE WEIGHT LOSS. You also understand and agree that we may, but we are not obligated to, modify the Service, Plan, and the Documentation for a variety of reasons, including for consistency with the most recent weight loss and weight management research.
2.2 Program Guides. As part of the Plan and Service, Selvera will provide you with access to wellness advisors, who will consult with you by videoconference, email, text message or telephone. You agree to work with your wellness advisors in good faith solely with respect to the Service, and you will not seek consultation from your wellness advisors for any other purpose. You agree and understand that consultations with your wellness advisors are included in the Subscription Fee and no refund will be made if you cancel, reschedule or miss a scheduled appointment. You agree to conduct your sessions with your wellness advisors alone, with no observers, and you will not record any such session in any way. You also understand and agree that Selvera may replace any wellness advisor assigned to you at any time, with no advanced notice.
2.3 Your Health. SELVERA IS NOT A MEDICAL ORGANIZATION. YOU SHOULD NOT CONSIDER THE SERVICE OR THE DOCUMENTATION AS MEDICAL ADVICE OF ANY KIND, AND THE SERVICE IS NOT INTENDED TO TREAT ANY ILLNESS, DISEASE, OR ADVERSE MEDICAL CONDITION. Selvera is not a licensed medical care provider, and we have no expertise in diagnosing, examining, or treating medical conditions of any kind, or in determining the effect of any specific exercise on a medical condition. You are urged and advised to seek the advice of a physician before beginning your use of the Service, and to get periodic medical check-ups as recommended by your primary-care physician. By using the Service, you represent that you are an adult who is healthy enough to begin a weight loss regimen that includes dieting and exercise. The Service is not intended for use by minors,, pregnant women, or individuals with any type of health condition. Such individuals are specifically warned to seek professional medical advice prior to initiating any form of weight loss effort or regimen.
If you are currently under the care of a health care professional or are living with a chronic health care condition, you represent that you have obtained the express approval from a health care professional to receive the Services before beginning. Never disregard professional medical advice or delay in seeking it because of something you have been told by Selvera staff or any wellness advisor.
The Plan and/or Service is not intended to be a substitute for professional medical advice, diagnosis or treatment from a licensed and experienced physician or health care professional and should not be used or relied on in making any health care decisions. Additionally, your use, access or browsing of his site does not constitute a patient-physician relationship between you, the Site and any author of Information on this Site. By use of this Site you agree that you shall not make any medical or health-care related decisions based on the Information contained on this Site.
3.1 Food Substitution Policy. Although Selvera takes every reasonable measure to have sufficient inventory to fill your order, availability of product(s) may change without notice. Selvera is not responsible for unavailability of product due to popular demand, whether discontinued or still in production.
In the completion of orders, Selvera reserves the right to substitute a similar product. When making substitutions, Selvera takes great care to meet the requirements of your particular Selvera program. Substituted food items may contain different ingredients and allergens than those in items originally ordered. Prior to consumption, please be sure to carefully check all individual product packages for the most updated information regarding ingredients and nutritional content for any/all Selvera food products, including new and improved items, if you have any food allergies or if you are otherwise concerned about any particular ingredients.
Please Note: Selvera food items may contain or may have been manufactured in a facility that also processes: milk, eggs, fish, crustacean shellfish, tree nuts, peanuts, wheat, or soybeans.
3.2 Auto-Delivery. Your Subscription Fee includes Auto-Delivery of your food products. You may receive a discount off the full retail value price and free shipping to the Continental US only. Charges will be incurred for shipments to Alaska, Hawaii, Puerto Rico, Canada and other US territories and possessions. You are automatically charged and shipped your plan once every 2 weeks unless you cancel. You may cancel your subscription and Auto-Delivery at any time by following the procedures outlined in section 5 below.
You will be sent an e-mail reminder before your next scheduled order begins processing. You can change your delivery schedule and your food selections on any order. You may do so by 6:00 p.m. EST the day before your order is scheduled to begin processing; otherwise we will be unable to make any changes for that order. Your Auto-Delivery payment is held by your banking institution the day your order is scheduled to begin processing, and is subsequently paid to Selvera when your order is shipped. The Selvera program is available to Continental U.S. residents only, and cannot be shipped to P.O. Boxes, A.P.O. Boxes or military addresses, Alaska, Hawaii, Puerto Rico, Canada and other US territories and possessions.
Not all exercises, activities, or Products recommended by Selvera or any of the wellness advisors, or otherwise made available on the Site or in the Documentation, are suitable for everyone. You understand and agree that when participating in any exercise or exercise program, there is the possibility of injury or death. As such, YOU AGREE TO USE YOUR OWN JUDGMENT AT ALL TIMES DURING YOUR USE OF THE SERVICE AND PRODUCTS IN ORDER TO DETERMINE IF ANY RECOMMENDED EXERCISE OR ACTIVITY IS SUITABLE FOR YOU. If you feel any discomfort or pain during your use of the Service, you must immediately stop the exercise or activity causing such discomfort or pain, and dial 911 using your telephone if you need emergency help. This Site should not be used as a substitute for such emergency action.
Any and all opinions of authors on this Site are simply opinions of the author and not as certified facts. Opinions of the author on the Site are or have been stated based on specific facts or beliefs, under certain conditions, and subject to certain assumptions, and may not and should be used and not relied upon for any other purpose, including, but not limited to, use in or in connection with any medical or health care decision or legal proceeding.
Selvera will not be responsible for any health problems or injuries that you may experience as a result of receiving the Services, including from training programs, Products, or events you learn about or acquire through the Service. YOU HEREBY AGREE THAT YOUR USE OF THE SERVICE, INCLUDING YOUR USE OF ANY EXERCISE PROGRAM RECOMMENDED BY SELVERA OR ANY WELLNESS ADVISOR, IS AT YOUR OWN RISK AND THAT YOU ARE VOLUNTARILY PARTICIPATING IN THESE ACTIVITIES, EVEN IF ANY ASPECT OF THE SITE OR DOCUMENTATION IS INACCURATE, INCOMPLETE, OR INAPPROPRIATE IN THE MANNER IT WAS PRESENTED.
5.1 Term. Unless otherwise specified, the term of this Agreement will being on the Acceptance Date and will continue for an initial term of 3 months from the Acceptance Date. Unless Selvera elects not to renew your subscription, the subscription shall automatically renew for 1 month and each month thereafter until you elect to cancel or Selvera elects not to renew your subscription.
5.3 Termination by You. You may terminate this Agreement at any time for any or no reason by calling Selvera at (212) 201-0730 or (877) 978-3251.
5.4 Effect of Termination. Upon the termination of this agreement, you agree to delete all copies of any Documentation in your possession or control. Should you elect to terminate this agreement, you will be charged the next scheduled Subscription Fee if such termination occurs within 5 business days of your next scheduled Subscription Fee; such charge shall be considered a fee for service and not a cancellation fee. You will not be charged this fee if you terminate this Agreement at least 5 business days in advance of your next scheduled Subscription Fee. If you have pre-paid all or a portion of your Subscription Fee, you will be refunded the unused portion of your Subscription Fee within 90 days of Termination.
5.5 Survival. Sections 4, 5.4, 6.3, 6.4 and 7 through 11 will survive the termination or expiration of this Agreement.
6.1 Subscription Fee. Your Subscription Fee, as set forth on the payment page of the Plan, is presented to you during the registration process and in the Plan and/or Confirmation Emails.
6.2 Cancellation Fee. If you cancel your participation in any Plan prior to completing the initial 3 month term, Selvera reserves the right to charge a cancellation fee to cover the cost of any administrative expenses (including legal costs), and the full retail value price of the Devices. The cancellation fee will be charged directly to the credit provided to Selvera in the registration process.
6.3 Promotions. Any promotion offered has no independent cash value and may not be combined with any other offers.
6.4 Taxes. You will be responsible for all taxes of whatever kind or nature imposed by any governmental authority upon any services provided to you hereunder, excluding taxes based upon Selvera's income or property.
7.1 Products. Selvera will provide a full refund, less the cost of shipping, for any Products that arrive damaged or expired or are returned to us unopened within 30 days of your receipt of the product. Please indicate the reason for your return, include the packing slip that came with your order, and wrap the package securely. Ship to the return address indicated on the shipping label. If you do not have your packing slip, please indicate the order number on a separate piece of paper, enclose in the package and send the package to the following address:
150 West 28th Street, Suite 502
New York, NY 10001
7.2 Services. As the Selvera program is cancelable at any time, Selvera does not provide any refunds for Services provided to you. If you have prepaid for Services, Selvera will refund the unused portion of any prepayment within 90 days of the date you terminate this agreement.
8.1 Reservation of Rights by Selvera. Selvera is the owner or licensor of all right, title, and interest in the Service, Site, Documentation, and Products, including all related intellectual property and other proprietary rights therein. No rights in these items are granted to you except as expressly set forth in this Agreement. You acknowledge and agree that the Service, Site, Documentation, and Products, and any technology, written materials, and logos used in connection with these items, contain Selvera's and its licensors' intellectual property and other proprietary information, and are protected by United States and international intellectual property laws. Your infringement or misappropriation of such intellectual property and other proprietary information could expose you to both civil and criminal penalties under applicable laws.
8.2 License to Client Data. You grant Selvera a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, and perpetual right and license to store, copy, and use Client Data in order to (a) provide the Service to you, (b) analyze and improve the Service, Site, Documentation, and Products, (c) conduct research on the efficacy of the Service, Site, Documentation, and Products. You further grant Selvera permission to publish de-identified Client Data (i.e., Client Data that is made anonymous by removing your name and other identifiers that could foreseeably be used to identify you) as part of research studies, academic papers, and scholarly articles based any such research.
8.3 Suggestions. You hereby grant Selvera a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, and perpetual right and license to use or incorporate into the Service, Site, Documentation, and Products any ideas, suggestions, enhancement requests, recommendations or other feedback that you provide to us.
9.1 Your Obligations. You may not, without Selvera's prior written consent (a) use the Proprietary Information except in conjunction with your use of the Service, or (b) disclose any of the Proprietary Information to any other person.
10.1 Disclaimer of Warranties. THE SERVICE, SITE, DOCUMENTATION, AND PRODUCTS ARE PROVIDED BY SELVERA STRICTLY ON AN "AS IS", WITH ALL FAULTS, AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED. SELVERA DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR ACCESS TO THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE. SELVERA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. ANY AND ALL PLANS, PRODUCTS OR SERVICE DOWNLAODED OR OBTAINED THHROUGH THIS SITE IS AT YOUR SOLE RISK. NO INFORMATION, ADVICE OR COUNSELING PROVIDED TO YOU THROUGH THIS SITE WILL CREATE ANY EXPRESS OR IMPLIED WARRANTY OF ANY NATURE.
10.2 Limitation of Liability. THE CUMULATIVE AGGREGATE LIABILITY OF SELVERA, ITS SUBSIDIARIES, AND THEIR OFFICERS, DIRECTORS, MANAGERS, MEMBERS, AGENTS, AND REPRESENTATIVES (INCLUDING THE WELLNESS ADVISORS), ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICE WILL BE LIMITED TO THE FEES PAID BY YOU HEREUNDER DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. NOTWITHSTANDING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL SELVERA, ITS SUBSIDIARIES, OR THEIR OFFICERS, DIRECTORS, MANAGERS, MEMBERS, AGENTS, AND REPRESENTATIVES (INCLUDING THE WELLNESS ADVISORS), HAVE ANY LIABILITY FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES INCURRED BY YOU (INCLUDING DAMAGES FOR LOST BUSINESS, LOST PROFITS, OR LOST WAGES), OR ANY OTHER DAMAGES WHATSOEVER, REGARDLESS OF HOW SUCH DAMAGES ARISE AND REGARDLESS OF WHETHER OR NOT SELVERA WAS ADVISED SUCH DAMAGES MIGHT ARISE. YOU EXPRESSLY AGREE THAT THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION CONSTITUTE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND SELVERA.
10.3 Indemnification. You agree to defend and indemnify Selvera, its Subsidiaries, and their officers, directors, managers, members, agents, and representatives (including the Wellness Practitioners) against any claim, demand, action, lawsuit, and liability (including reasonable attorneys' and experts' fees) arising out of, or alleged to result from, your use of the Service, Products, this site or your breach of this Agreement or your infringement, or the infringement or use by any other user of your account, of any intellectual property or other right of any person or entity.
11.1 Your Online Data. You agree to provide Selvera with access to (i.e., usernames and passwords for) your online accounts associated with your Products (including your accounts on www.withings.com) so that we may monitor your data on these accounts. For avoidance of doubt, all such data will be deemed Client Data for purposes of this Agreement.
11.2 Subcontractors. Selvera may subcontract some or all of its obligations under this Agreement, without providing any prior notice to you.
11.3 No Third Party Beneficiaries. Nothing in this Agreement is intended to create any rights in, or confer any benefits upon, any person or entity other than you and Selvera.
11.4 Assignment. You may not assign or transfer your rights or obligations under this Agreement to any other person or entity.
11.5 Use of "Including". Wherever the word "including" is used in this Agreement, it is not intended to limit the proposition preceding it, but is rather intended to mean "including but not limited to."
11.6 Force Majeure. Neither party will be responsible for delays or failure in performance (other than failures to make payments due under this Agreement) resulting from acts beyond the reasonable control of such party, including acts of God, strikes, lockouts, riots, acts of war, terrorism, epidemics, fire, communication line failures, power surges or failures, earthquakes or other disasters.
11.7 Governing Law; Dispute Resolution. This Agreement will be governed by and interpreted in accordance with the laws of the State of New York, without regard to its principles regarding conflicts of law. The United Nation's Convention on Contracts for the International Sale of Goods is expressly disclaimed. Except as expressly set forth below in this paragraph, all disputes arising out of or relating to this Agreement or your use of the Service or Products will be determined exclusively by arbitration in New York, NY before a single arbitrator in accordance with the rules of the American Arbitration Association ("AAA"). Notwithstanding the foregoing, you agree that Selvera may file a lawsuit in a state or federal court situated in New York, NY if we seek any type of temporary or permanent injunction against you, or if we have a reasonable belief that you are infringing or misappropriating any of our intellectual property or other proprietary rights, and for the purpose of such lawsuit you hereby submit to the exclusive jurisdiction of state or federal courts situated in New York, NY.
11.8 Entire Agreement. This Agreement and the Confirmation Emails constitute the sole and complete agreement between the parties with regard to the Service, and supersede all prior and contemporaneous agreements, proposals, representations, warranties, or promises, whether written or oral, relating to the Service.
11.9 Severability. If any provision of this Agreement is adjudicated to be contrary to law, the provision will be modified and interpreted so as to best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
11.10 Manner of Giving Notice. All notices, permissions and approvals hereunder will be in writing and will be deemed to have been given upon: (a) personal delivery; (b) the second business day after mailing; (c) the second business day after sending by confirmed facsimile; or (d) the first business day after sending by email. Selvera will send notices to the address you provide to Selvera during your use of the Service. You agree to send notices to Selvera to the following address: Attn: President, Selvera, 150 West 28th Street, Suite 502, New York, NY, 10001.