Terms of Use Agreement

Effective Date: 1/5/2018

The HealthyButSmart.Com website and its associated services and content (collectively “Website”) is owned and operated by Healthy But Smart Pty Ltd. (“Healthy But Smart”, “our”, “us”, “we”). Healthy But Smart has adopted this Terms of Use Agreement (“Agreement”) to inform you (“User(s)”) of your rights and duties when using the Website. If you do not agree with the terms and conditions of this Agreement, you are expressly prohibited from using the Website and must discontinue your use immediately.

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE WEBSITE AND ASSOCIATED SERVICES. BY ACCESSING OR USING THE WEBSITE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

HEALTHY BUT SMART MAY, FROM TIME TO TIME, AND RESERVES THE RIGHT, IN ITS SOLE AND ABSOLUTE DISCRETION, TO MODIFY, LIMIT, CHANGE, DISCONTINUE, OR REPLACE THE WEBSITE OR THIS AGREEMENT. IN THE EVENT HEALTHY BUT SMART MODIFIES, LIMITS, CHANGES, OR REPLACES THE WEBSITE OR THIS AGREEMENT, YOUR USE OF THE WEBSITE AFTER SAID MODIFICATION, LIMITATION, CHANGE, OR REPLACEMENT CONSTITUTES YOUR MANIFESTATION OF ASSENT TO THE MODIFICATION, LIMITATION, CHANGE, OR REPLACEMENT.

About The Website

Healthy But Smart is a Website dedicated to providing evidence based articles aimed at improving health decisions regarding foods, supplements, treatments, practices, and devices as well as providing in depth product reviews and comparisons on items it considers worthwhile in the promotion of human health.

Warranties and Representations

You warrant and agree that you have the right and legal capacity to enter into this Agreement and to adhere to its terms and conditions. You warrant that you are a human individual that is eighteen (18) years of age or older. If you are under eighteen (18) years of age but at least thirteen (13) years of age, you must present this Agreement to your parent or legal guardian for their review. You warrant that you are not prohibited from assenting to this Agreement by any preexisting Agreement.

You warrant and represent that any and all information that you provide to Healthy But Smart and the Website is accurate and valid. You agree to comply in good faith with the terms of this Agreement.

You warrant and represent that all material on this Website is provided for informational purposes only and does not constitute medical, legal, financial, or other professional advice on any subject matter. No information on this Website is or should be used for the purposes of diagnosing, treating, curing, or preventing any disease. The information on this Website has not been evaluated by the Food and Drug Administration. You should consult a medical professional prior to making any health decision or taking and/or using any product. Healthy But Smart is not responsible for your reliance upon any information located on the Website.

You will not use the Website in any way that violates the rights of third parties, and you agree to comply with any and all applicable local, national, state, provincial, and international laws, treaties, and regulations. Given the global nature of the Internet, you agree to comply with all laws and rules where you reside or where you use the Website. The Website is operated in the United States and Healthy But Smart makes no representation that its Website or services or products are appropriate, lawful, or available for use in other locations.

Ownership of Website and License

You acknowledge and agree that Healthy But Smart is the owner of, or has rights in and to, the Website and its associated content, including but not limited to all intellectual property rights inherent therein. The Website is protected by all applicable laws, intellectual property or otherwise, and you are expressly prohibited from using the Website for any purposes not explicitly stated in this Agreement. Specifically, and except where otherwise allowed under this Agreement, you are prohibited from framing, scraping, aggregating, hacking, reverse engineering, crawling, reproducing, preparing derivative works of, distributing, performing publicly, or displaying publicly the Website, whether in whole or in part, without the prior written consent of Healthy But Smart.

Healthy But Smart hereby grants you a limited, non-exclusive, non-sublicensable, royalty free, non-assignable, and revocable license to use the Website for its customary and intended purposes. Violation of the terms of this Agreement or use of the Website for a use outside of its customary and intended purposes, such as, but not limited to downloading (other than page caching) or modifying the Website or any portion of it will result in the termination of this license. Absent prior written permission from Healthy But Smart, you are not permitted to reproduce, prepare derivative works, distribute copies, perform, display, or use for commercial purposes the Website or its content. This license is revocable at any time, and any rights not expressly granted herein are reserved to Healthy But Smart.

Intellectual Property

All trademarks (common law or registered) and copyrights (common law or registered) displayed on this Website are the property of their respective owners. Specifically, all Healthy But Smart marks are the property of Healthy But Smart, including, but not limited to HEALTHY BUT SMART and all Healthy But Smart logos. The Website, including its look and feel, color selections, layout, and arrangement, is the trade dress of Healthy But Smart. You are prohibited from using Healthy But Smart’ trademarks, service marks, and trade dress, or any colorable imitation thereof, to indicate the source of, sponsorship of, approval of, affiliation with, connection with, or association with your goods or services without the prior written consent of Healthy But Smart.

Website Use

Use of the Website is free. You have the option to subscribe for updates from Healthy But Smart by providing your name and email address. Users also have the opportunity to potentially become authors for the website, by entering into a separate contract with Healthy But Smart. To explore the opportunity of becoming an author, please visit the “Write For Us” section of the Website.

When subscribing to Healthy But Smart, you are agreeing to receive email notifications from Healthy But Smart and other third-parties. The email notifications from Healthy But Smart contain an unsubscribe feature that allows you to “opt out” from future notifications. Please see the Website’s Privacy Policy, which is incorporated into this Agreement by reference, regarding the collection and use of this and other information about you. User information will be used consistent with the Privacy Policy. Healthy But Smart does not endorse you or discriminate based upon any information provided by you or made available through filling out the Form.

You have a duty to ensure that the information provided through the Website is truthful, current, complete, and accurate. You understand and agree that you have an ongoing duty to update and keep current the information provided through the Website if and when that information changes. You are expressly prohibited from providing information that in a way impersonates another person, contains offensive or obscene language, or otherwise violates the rights of a third party. You expressly agree that you will not interfere with or disrupt a third party’s enjoyment and use of the Website. Healthy But Smart reserves the right to restrict access to, monitor, suspend, disable, or delete Users and/or Users’ information at any time, in its sole discretion, and without prior warning. You agree to hold harmless and indemnify Healthy But Smart for any damages that arise out of or in relation to the use of the Website.

Healthy But Smart is under no obligation to preserve your data for any length of time and will not be responsible for any loss of data. Healthy But Smart is under no obligation to provide you with the data associated with your Website use, except as otherwise provided in the Privacy Policy. Healthy But Smart recommends that you maintain your own backup of information submitted to the Website.

You may have your information removed from the Website by unsubscribing from the Healthy But Smart e-mail updates.

User Generated Content

You may have the opportunity to submit content to the Website, including, but not limited to text, music files, photos, and videos (collectively “User Generated Content”).

Except as otherwise licensed herein, you own all rights in and to your User Generated Content. User Generated Content may be hosted, shared, and/or published as part of the Website’s associated services. User Generated Content posted to public areas of the Website, including as comments to posts and reviews, will be publicly visible to all visitors of the Website. You expressly acknowledge, however, that Healthy But Smart does not guarantee any confidentiality with respect to any submissions of your User Generated Content.

By submitting User Generated Content to the Website, you grant Healthy But Smart a non-exclusive, irrevocable, royalty free, worldwide, and perpetual license to use your User Generated Content for the customary and intended purposes of the Website and any purpose related thereto, including, without limitation, to reproduce, prepare derivative works, distribute copies, perform, sell, display, research, and use any of the User Generated Content. These purposes may include, but are not limited to, providing you or third parties with the Website or its associated services, improving the Website or its associated services, and archiving or making backups of the Website. You agree to waive all moral rights in and to your User Generated Content across the world, whether you have or have not asserted moral rights in or to your User Generated Content. By submitting User Generated Content to the Website, you further agree to waive all rights of publicity or privacy with respect to the User Generated Content submitted.

You warrant that any User Generated Content that you submit to the Website will not violate the rights of third parties, including, but not limited to, trademark rights, copyright rights, and rights of publicity and privacy, or violate any applicable law, statute, ordinance, treaty, or regulation, whether local, state, provincial, national, or international.

You agree that you are solely responsible for any User Generated Content that you submit to the Site. Healthy But Smart acts solely as a repository of data, and therefore makes no guarantees as to the validity, accuracy, relevance, usefulness, or legal status of any User Generated Content. Healthy But Smart does not guarantee the confidentiality of any User Generated Content you share through the Website with any third party.

Healthy But Smart reserves the right to remove User Generated Content without prior notice and may, at its sole discretion, remove User Generated Content that it determines, at its sole discretion, violates the terms of this Agreement. Healthy But Smart also reserves the right to terminate a User’s access to the Website for any reason, including, but not limited to, for repeatedly infringing on the intellectual property or other rights of third parties or otherwise violating the terms of this Agreement, or for no reason, and without prior notice.

Prohibited Uses

You expressly agree that you will not use the Website to violate any law, statute, ordinance, regulation, or treaty, to violate the rights of third parties, or for a use outside of the customary and intended purposes of the Website.

Specifically, you are prohibited from:

  • Posting or transmitting content that:
  • Infringes upon the intellectual property rights of others;
  • Threatens or encourages bodily harm and/or destruction of property or that is offensive, defamatory, derogatory, pornographic or obscene;
  • Promotes hate, violence, harassment, stalking, discrimination, terrorism, or intolerance of any kind based upon race, ethnicity, religion, sexual orientation, or disability;
  • Incites any illegal activity or unlawful sexual solicitation;
  • Relates to weaponry, controlled substances, gambling, or debt collection;
  • Raises support or defense of anyone alleged to be involved in criminal activity;
  • Impersonates another or is fraudulent, inaccurate, or misleading;
  • Constitutes an unwanted commercial solicitation, a phishing scam, a pyramid scheme, or a chain letter;
  • Intends to collect personal or personally identifiable information from others;
  • Violates any term or condition of this Agreement;
  • Using a robot, spider, scraper, or other automated technology to access the Website;
  • Imposing a disproportionate load on the Website or its server infrastructure or otherwise attempting to interfere with the operation of the Website;
  • Attempting to gain access to the private data or personal information of a Website user or third party;
  • Circumventing Healthy But Smart’ technological and physical security measures;
  • Suggesting an affiliation with or endorsement by Healthy But Smart.

If you encounter content or witness behavior that you believe is inappropriate and violates this Agreement, you may report it to Healthy But Smart by sending an email to liz@healthybutsmart.com.

Mobile Devices
The Website is fully accessible via a mobile device. To the extent you access the Website through a mobile device, your wireless carrier’s standard charges, rates, and fees may apply. Healthy But Smart is not responsible for any fees or errors that occur while accessing the Website via mobile device.

Section 230 of Communications Decency Act

You acknowledge and agree that Healthy But Smart is an interactive computer service provider under Section 230 of the Communications Decency Act. Though Healthy But Smart may edit, remove, or control the content displayed through the Website, you agree that Healthy But Smart will not be considered an information content provider and will not be held liable for the republication of defamatory or tortious content created by third parties, whether through the Website or otherwise.

Third Party & Affiliate Links

You understand that the Website may contain links to third party websites, applications, or services that Healthy But Smart does not own or control. You agree that Healthy But Smart will not be held responsible or liable for the content of third party websites, applications, or services and that Healthy But Smart’ inclusion of those websites, applications, or services within its Website does not constitute Healthy But Smart’ endorsement of, recommendation of, or affiliation with any of those websites, applications, or services.

Some of the links on the Website are affiliate links, which means that we may earn a commission if you click on the link or make a purchase using the link. When you make a purchase, the price you pay will be the same whether you use the affiliate link or go directly to the vendor’s website using a non-affiliate link. By using the affiliate links, you are helping support the Healthy But Smart Website, and we genuinely appreciate your support.

Amazon Disclosure: Healthy But Smart is a participant in the Amazon Services LLC Associates Program, an affiliate advertising program designed to provide a means for sites to earn advertising fees by advertising and linking to Amazon.com.

No Endorsement

Healthy But Smart does not endorse any commercial product, process, service, or website. The views and opinions of affiliates, contributors, and others expressed on this Website do not necessarily state or reflect those of Healthy But Smart and are not intended to be used for product endorsement purposes.

Term and Termination

This Agreement will remain in full force and effect so long as the Website is in operation. Healthy But Smart may terminate this Agreement without liability at any time, without notice, and for any reason, including but not limited to for your violation of a term or condition of this Agreement.

Disclaimer of Warranties

HEALTHY BUT SMART DISCLAIMS ANY RESPONSIBILITY FOR ANY HARM OR LIABILITY ARISING OUT OF OR RELATED TO YOUR USE OF THE WEBSITE. HEALTHY BUT SMART PROVIDES THE WEBSITE AND THE SERVICES PROVIDED THROUGH THE WEBSITE ON AN AS-IS BASIS AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, COMPLETENESS, NON-INFRINGEMENT, OR QUALITY. SOME JURISDICTIONS DO NOT ALLOW AN EXCLUSION OF IMPLIED WARRANTIES. IF YOU ARE LOCATED IN SUCH A JURISDICTION, THIS EXCLUSION MAY NOT APPLY.

HEALTHY BUT SMART WILL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY CONTENT POSTED ON THE WEBSITE, INCLUDING BUT NOT LIMITED TO ANY ADVICE OR MARKETING PROVIDED BY ANY THIRD PARTY, ANY THIRD-PARTY LINKS POSTED ON THE WEBSITE, OR ANY CONTENT TRANSMITTED THROUGH THE WEBSITE. HEALTHY BUT SMART IS A SERVICE PROVIDER AND DOES NOT ASSUME RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, ALTERATION, AND/OR DESTRUCTION OF IDENTITY. HEALTHY BUT SMART RESERVES THE RIGHT TO DISCONTINUE THE WEBSITE AT ANY TIME.

HEALTHY BUT SMART WILL NOT BE HELD LIABLE FOR NETWORK, INTERNET, COMPUTER, HARDWARE, OR SOFTWARE PROGRAM MALFUNCTIONS, FAILURE, DELAYS, OR DIFFICULTIES WITH THE WEBSITE AT ANY TIME.

Limitation of Liability

HEALTHY BUT SMART WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY FOR ANY DAMAGES, CLAIMS, INJURIES, JUDGMENTS, COSTS, OR LIABILITIES ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, OR EXEMPLARY DAMAGES. YOU UNDERSTAND AND AGREE THAT THE MAXIMUM AMOUNT THAT HEALTHY BUT SMART CAN BE HELD LIABLE TO YOU UNDER ANY CIRCUMSTANCE IS THE AMOUNT THAT YOU PAID, IF ANY, FOR SERVICES THROUGH THE WEBSITE, AND IN NO CASE WILL THAT AMOUNT EXCEED $100. IF NO AMOUNT IS PAID BY YOU TO HEALTHY BUT SMART, YOU AGREE THAT YOU WILL BE LIMITED TO INJUNCTIVE RELIEF ONLY UNLESS OTHERWISE PERMITTED BY LAW.

THE WEBSITE MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. HEALTHY BUT SMART IS NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS LISTED ON THE WEBSITE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES. IF YOUR JURISDICTION DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, YOU SHOULD SEEK LEGAL COUNSEL TO UNDERSTAND YOUR LEGAL RIGHTS UNDER THE LAW.

Indemnification

You agree to hold harmless, indemnify, and defend Healthy But Smart, its officers, employees, agents, successors, and assigns, from and against any and all claims, demands, losses, damages, rights, and actions of any kind, including, but not limited to, property damage, infringement, personal injury, and death, that either directly or indirectly arise out of or are related to your use of the Website, your use or provision of any services made through the Website, your reliance upon advice provided through the Website, your submission of User Generated Content to the Website, your violation of any term or condition of this Agreement, your violation of any applicable law, statute, ordinance, regulation, or treaty, whether local, state, national, or international, or your violation of the rights of a third party.

Your obligation to defend Healthy But Smart under the terms of this Agreement will not provide you with the right to control Healthy But Smart’ defense, and Healthy But Smart reserves the right to control its defense and choose its counsel regardless of your contractual requirement to indemnify Healthy But Smart.

No Assignment

You acknowledge and agree that you are prohibited from assigning your rights and obligations under this Agreement. Healthy But Smart may assign its rights and obligations under this Agreement at any time, including but not limited to in a sale of the Website.

Jurisdiction, Governing Law, and Resolution of Disputes

This Agreement will be interpreted, governed, construed, and enforce in accordance with the laws of the United States of American and the State of California without giving effect to any conflicts of laws principles. The parties submit to and agree to personal jurisdiction in California, with venue proper in Walnut, California.

YOU AND HEALTHY BUT SMART AGREE THAT ARBITRATION WILL BE THE EXCLUSIVE FORUM AND REMEDY AT LAW FOR ANY DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT, YOUR USE OF THE WEBSITE, OR THE PURCHASE OF SERVICES FROM HEALTHY BUT SMART, INCLUDING ANY DISPUTES CONCERNING THE VALIDITY, INTERPRETATION, VIOLATION, BREACH, OR TERMINATION OF THIS AGREEMENT. ARBITRATION UNDER THIS AGREEMENT WILL BE HELD IN WALNUT, CALIFORNIA AND IN ACCORDANCE WITH THE MOST RECENTLY EFFECTIVE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. THE ARBITRATION PROCEEDING WILL BE DECIDED BY A SINGLE ARBITRATOR AND THE ARBITRATOR WILL DECIDE THE ARBITRATION PROCEEDING BY APPLYING THE LAWS AND LEGAL PRINCIPLES OF THE STATE OF CALIFORNIA AND THE FEDERAL LAWS OF THE UNITED STATES. THE LOSING PARTY WILL BE REQUIRED TO PAY THE PREVAILING PARTY’S REASONABLE ATTORNEYS’ FEES. YOU AND HEALTHY BUT SMART AGREE THAT THE SITUS OF THIS AGREEMENT IS IN THE STATE OF CALIFORNIA. YOU AND HEALTHY BUT SMART AGREE TO SUBMIT TO THE EXCLUSIVE PERSONAL JURISDICTION OF ANY SUCH ARBITRATOR OR ARBITRATION PROCEEDING.

Severability

If any provision of this Agreement is found to be invalid or unenforceable for any reason whatsoever, the remaining provisions will remain valid and unimpaired and will continue in full force and effect.

Integration

Healthy But Smart hereby incorporates its Privacy Policy and Copyright Policy into this Agreement. This Agreement and its incorporated Privacy Policy and Copyright Policy constitutes the entire agreement between the parties with respect to the use of the Website and its associated services and products. You acknowledge and agree that any additional provisions that may appear in any communication from you will not bind Healthy But Smart.

No Waiver

You understand and agree that no term or provision of this Agreement will be deemed to have been waived and no breach will be deemed to have been consented to unless said waiver or consent is in writing and signed by the party to be charged.

Child Online Privacy Protection Act

The Website is not directed to persons under the age of eighteen (18) and Healthy But Smart will not knowingly collect personally identifiable information from children under the age of eighteen (18). If Healthy But Smart inadvertently collects such personally identifiable information, Healthy But Smart will delete the personally identifiable information in accordance with its security protocols.

Limitation on Actions

HEALTHY BUT SMART AND YOU BOTH AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE OR ANY SERVICES PURCHASED THROUGH THE WEBSITE MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. FAILURE TO ASSERT SAID CAUSE OF ACTION WITHIN ONE YEAR WILL PERMANENTLY BAR ANY AND ALL RELIEF.

YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST HEALTHY BUT SMART ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.

Reservation of Rights

All rights not expressly granted herein are reserved to Healthy But Smart.

Notice

Any notice required by this Agreement must be in writing, and must be emailed to: liz@healthybutsmart.com.

This Agreement is enforced by the Internet lawyers of Traverse Legal, PLC.