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Terms of Use

The Diary Corporation Purpose and Values

The Diary Corporation (“we” or “us” or “ company”) purpose is to help you and your family members get and stay healthy by empowering you to be the most knowledgeable, engaged, effective, efficient and confident health manager, care team builder and healthcare consumer possible. To achieve our Purpose we must also empower your healthcare team with all the tools and support they need to deliver high quality care, satisfied patients and the best possible outcomes at the lowest possible cost. Our company Values require that every single person employed by us (i) believes deeply in the company Purpose – it is part of joining and staying in our company, (ii) reflects and respects the diversity of our subscribers, and (ii) is fully empowered to do whatever they believe is the right thing to do, not what they might be instructed to do. In fact, The Diary Corporation as a company practices the principles of self-management – there are no bosses ordering underlings what to do. For self-management to work we must train our team in and reinforce our Values and Purpose, and then let them decide what the appropriate action is, in any and every situation. Our company Values also require that we focus on our whole business ecosystem, creating and optimizing the value for and fairly balancing the interests of all of our stakeholders — customers, employees, suppliers, funders, supportive communities and a life-sustaining ecosystem — as we try to build a healthy, sustainable, and resilient business. We believe you will notice the difference our company Purpose and Values make to your level of service, and the overall experience you have from the very first time you interact with us. We are grateful that you have chosen to become part of the Lifetime Health Diary™ community. Thank you.

Terms of Use

Below are our Terms of Use (“Terms”) that clearly lay out the legal and practical relationship between our company–The Diary Corporation — and you as our subscriber, and govern your use of the Diary (defined below).

Your Data

With The Diary®, our mobile application, and the Lifetime Health Diary, our web-based application (together the “Diary”) you can collect, upload, submit, store, track, display, analyze, send, receive, or print content and data.  This data includes personally identifiable information such as your name, address, email address, telephone number, and payment information, and your personal health information such as any information about a medical condition or other information obtained from your doctor or health records, submitted by you and persons authorized by you and from third party data sources approved by you in your Diary (“Your Data”). You control Your Data and your interactions with us – and that is what makes us different. Fundamentally, we believe you own Your Data and should have control over how it is used. Further, we believe you should have some control over how you interact with us as a subscriber. We try to give you as much information as possible so your interactions with us and decision to use the Diary and our Services are based on information, choice, and consent. These Terms also apply to any other products, services or platforms we may provide or make available to you from time to time, as well as your general dealings with us – including through our website and any other on-line or mobile platforms (“Services”). If you have any questions or comments about these Terms please contact our Kindness Care™ center.  For information about how to reach our Kindness Care center contact us here.

Accepting Our Terms

By using the Diary or any of our other Services, you agree to these Terms. We will also highlight this during the initial sign-up or account creation process, and you will be expressly asked to agree. Once agreed, these Terms are legally binding on both parties.

Changing Our Terms

Occasionally we may need to change these Terms.  We will make you aware of any changes in advance on our website, and tell you the date when those changes apply.  By continuing to use the Diary or the Services after that date, you agree to the revised Terms. Otherwise, you are free to stop using your Diary and close your account (see “Your Diary Account” below).

Kindness Care™

Kindness Care is our customer service process, and our commitment to treat you at all times as a unique individual with dignity, respect, compassion, and kindness; and without judgment. It underpins the community of users of the Diary in terms of fair treatment at all times. If you have any questions or need assistance, please contact us at our Kindness Care center.

Please contact us at:

E-mail: support@thediary.com PH: (+1) 520-257-2525 Toll Free in the US: 855-794-6800 Hours: 8 am – 5 pm or by appointment (Arizona Time)

Acceptable Use

As part of this mutual commitment to fair treatment at all times, you agree to only use the Dairy, our Services, our technology (including our website and any other on-line or mobile platforms) and any information available to you in good faith, and only for your own health and welfare or the health and welfare of someone who has authorized you to do so.  Failure to do so may lead to the termination of your access to the Diary, the closing of your account, and possible legal action against you. You are responsible for your use of the Diary and your account.  To promote our goal of fair treatment and dealing at all times, you agree not to:

  • violate any law or regulation;
  • violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights;
  • post or share anything that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, or otherwise objectionable;
  • send unsolicited or unauthorized advertising or commercial communications, such as spam;
  • engage in spidering or harvesting, or participate in the use of software, including spyware, designed to collect data from the Diary;
  • transmit any viruses or other computer instructions, or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems;
  • stalk, harass, or harm another individual;
  • impersonate any person or entity or perform any other similar fraudulent activity, such as phishing;
  • use any means to scrape or crawl any web pages contained in the Diary; attempt to circumvent any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the Diary;
  • attempt to decipher, decompile, disassemble, or reverse engineer any of the software or other underlying code used to provide the Diary; or
  • advocate, encourage, or assist anyone in doing any of the foregoing.

 

Transparent Business Model

We believe healthcare is broken and can be fixed only by people (i) taking ownership of their health information, (ii) exercising greater control over their healthcare experience, (iii) sharing responsibility for achieving the best outcomes, and (iv) having an interest in reducing the personal and societal costs of healthcare. So everyone has an effective means to collect, own, understand and share their health information and help fix healthcare, we provide the Diary for free to individuals. We do not generate revenue by selling your information to 3rdparties. We do not permit 3rd parties to put advertising in your Diary or send targeted communications to our identified Diary users unless they have opted in or requested to receive advertising or other communications. We make our revenue primarily by selling population health and personalized precision health software, tools and support to medical providers, companies, governments and other organizations and people who can benefit from achieving four key goals — (i) higher quality care and satisfied patients, (ii) the best possible outcomes, (iii) the lowest possible cost and (iv) happy and productive medical providers. We believe we will be successful if we help you achieve better health for yourself and your family and our paying customers achieve these 4 goals, ie. we will be able to build a healthy, sustainable and resilient business. In the future we may add Services like medical record scanning, indexing, transcription and other customized services, and, in some cases, transaction fees when you use new Services or buy or sell products, services and information through the Diary. All transaction fees will be posted on our website. We may notify subscribers generally and/or you specifically of opportunities to (i) get information about products and services if we believe they have the potential to improve your health or your ability to better access health care services, (ii) donate or sell Your Data and (iii) other information as we deem appropriate.   Please see our Privacy Policy for more information.

Payment for The Diary Services

Your individual personal use of a Diary is free. There may be a charge for Services as well as a fee for any products, services or information you buy through the Diary. Details for these charges and terms for payment will be posted on our website if and when they would apply.

Permitted Users

By setting up a Diary account, you represent that you have either reached the age of “majority” where you live or have valid parent or legal guardian consent to be bound by these Terms, and that you are not barred from setting up an account, using a Diary or receiving Services under applicable laws. If you do not know whether you have reached the age of majority where you live or do not understand this section, please ask your parent or legal guardian for help before you set up an account. If you as a parent or guardian set up an account for a minor or you are the parent or guardian of a minor who sets up an account, you accept these Terms on the minor’s behalf and are responsible for all use of the account, the Diary or Services, including any purchases. No one under the age of 13 is permitted to use the Diary or any of our Services.  You can create a Diary for others only where you are the authorized individual-representative (a parent, guardian or legal representative establishing an account for a Diary).  By setting up such an account you automatically certify and agree that (i) you have this authority, (ii) we are entitled to rely of your certification as true, and (iii) you will hold us harmless from any claim by such others that you did not have authority to create a Diary for them. Subject to an agreement with our company, we will permit organizations (including not-for-profit entities) and individuals to create Diaries, set up accounts for others and encourage them to use a Diary or other Services. Whether you set up your own Diary account or one is set up for you and you agree to become a Diary user, these Terms shall apply to you and govern your relationship with us.  We reserve the right to restrict in our sole discretion who is eligible to use the Diary or our Services, or set up an account, and to reject a request to create a Diary account or close an account at any time without liability.  We will only do this where we believe we have a reasonable concern or issue.

Consent to United States Laws

We are a U.S. company.  As such, we make no representation that the Diary, the Services, or any other materials in the Diary or on our website are appropriate or available for use in jurisdictions outside of the U.S. If you access this website from outside the United States, please understand that this website may contain references and/or links to pharmaceuticals and medical terminology which may not match those used in your country, and to products and services that are not available or are prohibited in your jurisdiction. You agree that (i) you have voluntarily sought and established contact with us, (ii) under no circumstance will we be deemed liable under any laws other than the United States; (iii) your participation is governed by United States law and subject to the arbitration and venue provisions as set out in these Terms; (iv) Your Data will be stored and processed in the U.S. or other jurisdictions as determined by us in our sole and absolute discretion; and (v) you acknowledge and accept any risks of using the Diary, Services and other information, products, and services available in connection with our company, and indemnify us as provided for in these Terms.

Your Diary Account

You are responsible for allowing access to your account and for all activity that occurs in connection with your Diary and account. You are responsible for maintaining the confidentiality of your information in the account, including your username and password. You agree to notify us immediately of any unauthorized access or use of your Diary or account. We are not responsible or liable for any damage or loss related to any unauthorized access or use of your Diary or account. You can choose to stop using the Diary and close your account at any time.  You simply need to notify us by email.  We will then provide you, by a means to be determined by us in our discretion, with an electronic copy of Your Data as it then exists in your Diary.  Except where you have agreed to share Your Data on a permanent basis as set out below, we will delete all of Your Data within a reasonable period (around 60-90 days). Note that once Your Data is deleted it cannot be retrieved.  We will retain system logs in relation to your Diary tracking the deletion, but not retain Your Data.  Where you have chosen to give access to Your Data to any third parties (including, but not limited to, medical providers, hospitals, insurers, and other Diary users) for medical diagnosis, care delivery, payments, support, analysis, and other purposes in both anonymous and personally identified formats with the requirement that some or all of Your Data will not be deleted in the future, then Your Data will continue to be stored, shared and used as you have agreed. You agree to read any additional terms and conditions and privacy policy terms which apply to your sharing Your Data with third parties and accept and agree to them by sharing Your Data, using the third party’s service or otherwise giving them access to Your Data, your Diary, and/or your account.

Rights to Your Data

You represent that you own all rights to Your Data or, alternatively, that you have the right to give us the rights described above, and that you have acquired Your Data by legal means and not in violation of any legal or contractual provisions which govern your generation, receipt, collection, storage, sharing and other use of any part or all of Your Data.  You also represent that Your Data does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party. You acknowledge and agree that when we permit you to enter Your Data into the Diary we are acting in reliance on your representations.  The Diary allows you to collect, upload, submit, store, track, display, analyze, send, receive, or print Your Data (“Use”).  However, we need your permission to process Your Data on our systems and share Your Data as provided for in these Terms. The processing we do is very extensive, so, when you use your Diary, we need, and you thereby give us and those we work with, a license and permission to use, host, store, reproduce, modify, create derivative works (such as translations, adaptations, reformatting, or other changes we make so that Your Data works better with the Diary), and share or disclose Your Data as you have permitted or agreed. Our license to Your Data is non-exclusive, meaning you may use Your Data for your own purposes or let others use Your Data for their purposes. This license and permission are for the limited purposes of operating, promoting, and improving the Diary and the Services, and to develop new Services, are provided at no charge to us, remain for as long as you have Your Data in your Diary, and ARE SUBJECT TO OUR Privacy Policy.   We may refuse to accept or transmit Your Data for any reason.  We may also remove Your Data from the Diary for any reason.  We will only do this where we have a concern or issue with it, in our discretion, and will promptly notify you in writing.

General Subscriber Information and Anonymized and Aggregated Data

General Diary user information includes data such as (i) profile data (age, gender or location data), (ii) technology data (e.g. device & browser type), (iii). user behavior data like how many invitations are sent, accepted, declined, expired, how often do owners log in and for how long, how often do guests log in and for how long, what features are used and how often, etc. We use general Diary user information for internal purposes only to improve our product, services and overall user experience.  Anonymized and aggregated data includes Your Data which has been de-identified and aggregated with other Diary users and, in some cases, non-Diary user data. We use anonymized and aggregated data for internal purposes only to learn more about our Diary users’ needs and interests, how we can improve the Diary to better serve our users, and what 3rd party products and services may be most useful and valuable to them.  We will retain and use for our internal purposes only general Diary user information and anonymized and aggregated data after you close your Diary account.

Our Ownership Rights

Other than Your Data, we own or license all rights, title, and interest in and to the Diary and the Services (including all software, text, media, data, and other content available on the Diary) and our trademarks, logos, and brand elements, and these are all protected under U.S. and international laws.

Copyright and Intellectual Property Protection
We respond to notices of alleged copyright infringement, and terminate the account of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act.  If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent named below:

  • Your address, telephone number, and email address.
  • A description of the copyrighted work that you claim has been infringed.
  • A description of where the alleged infringing material is located.
  • A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law.
  • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
  • A statement by you, made under penalty of perjury, that the above information is accurate and that you are the copyright owner, or authorized to act on behalf of the copyright owner.

  Copyright Agent: Explore Annenberg LLC, 2000 Avenue of the Stars, Suite 1000S Los Angeles, CA 90067, USA TEL: 310-209-4577   FAX: 310-209-1631  EMAIL: tom@explore.org For clarity, only copyright infringement notices should go to our Copyright Agent.  You acknowledge that if you fail to comply with all of the requirements of this section your notice may not be valid. If you believe the content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such content, you may submit a counter-notice to the address listed above containing the following information:

  • Your physical or electronic signature;
  • Identification of the content that has been removed or to which access has been disabled, and the location at which the content appeared before it was removed or disabled;
  • A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
  • Your name, physical address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Tucson, Arizona, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement.  Please note that when we forward the counter-notification, it includes your personal information.  By submitting a counter-notification, you consent to having your information revealed in this way.  We will not forward the counter-notification to any party other than the original claimant. After we send out the counter-notification, the claimant must then notify us within 10 days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the content that was removed or disabled.  If we receive such notification we will be unable to restore the material.  If we do not receive such notification, we may reinstate the material.

Privacy

Your privacy is very important to us.  Our Privacy Policy explains how we collect, use, protect, and share personal information and other data.  We both agree to follow the terms set out in that Policy, which is incorporated into and made part of these Terms as if set forth at length herein.

Service and Information Availability

If we need to perform maintenance on the Diary, our Services, or our technology (including our website and any other on-line or mobile platforms) where we necessarily have to restrict access to or use of the Diary or the Services, we will try to let you know in advance. If an issue limits or prevents your use of the Diary or our Services, we will resolve that issue as soon as possible. You agree we are not liable for any lack of availability of the Diary or our Services.  If any of Your Data is accidentally deleted or corrupted, you also agree not to hold us responsible. We do enhance and update the Diary often, so we will let you know as new or different features and options develop.

Syncing and Cellular Data

Syncing The Diary mobile app can require large amounts of data to be exchanged. Syncing your The Diary mobile app when you are connected to WiFi is the best practice. IF YOU USE YOUR MOBILE DEVICE’S CELLULAR DATA SERVICE YOU COULD DOWNLOAD SO MUCH DATA IN A BILLING PERIOD THAT YOU SIGNIFICANTLY EXCEED THE AMOUNT OF DATA EXCHANGE PERMITTED BY YOUR SERVICE PLAN, AND INCUR LARGE CHARGES ABOVE YOUR MONTHLY SERVICE BILL. You can turn cellular data for The Diary on and off with the switch in your Settings for The Diary app on your phone. If you choose to use cellular data to sync, you should carefully track and manage your cellular data usage, and will be responsible for any extra charges you incur for exceeding the limits which are part of your service plan.

Offline Access to Your Diary

The Diary permits you to have access to Your Data from computers and mobile devices. All of the information you enter into your Diary is stored in the Diary’s servers in the cloud. If you do not have a connection to the internet, you will not be able to access Your Data in real time. We will provide you with opportunities to save selected parts of Your Data on your computer or mobile device for use when you are offline. Documents and images stored on your mobile device can consume large amounts of space. You should track and manage the amount of Diary items you store on your mobile device so you are aware of the amount storage space you are using.

Termination

We reserve the right to not provide the Diary or Services to any person, but we will only do this where we believe we have good reason in our discretion.  We also reserve the right to suspend or terminate your right to access the Diary and Services at any time where we have an issue or concern, in our discretion.  We will promptly notify you of any suspension or termination, and allow you a right of appeal to us to be reinstated. The form of the appeal and final decision shall be in our sole and absolute discretion.

We are not your health care professional

The Diary is a repository and visualization tool for Your Data, which includes your personal health information.  You may use the Diary to track, display, and analyze your health information, and share Your Data, the Diary’s visualizations, and insights with friends, family, health professionals, and others as determined by you.  However, neither our company nor any of our employees or Service Providers, nor the Diary itself, is intended to provide or provides medical advice or medical opinions to you, and you agree that you are not relying on the Diary or any of us or our 3rd party service providers (“Service Providers”) for any such advice. Your medical professionals and other care team members with whom you share your Diary may be relying, at your request, on Your Data in and as displayed by your Diary. Medical records can be full of errors and incorrect information, which, if relied or acted on, could cause serious harm. Imported electronic files and sensor, app, and device data may be incomplete or corrupted. We do not see or have the responsibility to quality check Your Data as it enters your Diary. Only you are in a position to effectively quality control Your Data and your Diary. You agree to be very vigilant in reviewing Your Data for completeness, accuracy and quality as it comes into and is displayed in your Diary, regardless of the source (scanned paper records, imported digital records, integrated sensor, device and app data, etc.) and correcting any errors you find. You further agree to be solely responsible for any inaccuracies and errors in Your Data and Diary, and the consequences of your or any other person’s reliance or advice based on Your Data and their use of the Diary to support diagnosis, treatment or other health intervention or recommendation for you.   THE DIARY IS NOT A MEDICAL SOFTWARE APPLICATION OR DEVICE. IT HAS NOT BEEN REVIEWED OR APPROVED BY THE FDA. WE DO NOT OFFER MEDICAL ADVICE OR DIAGNOSES, OR ENGAGE IN THE PRACTICE OF NURSING OR MEDICINE. INFORMATION SUPPLIED BY US IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT A REPLACEMENT FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU RELY ON SUCH INFORMATION, YOU DO SOLELY AT YOUR OWN RISK. IF YOU HAVE HEALTH-RELATED QUESTIONS OR A HEALTH PROBLEM, PLEASE CONTACT YOUR PHYSICIAN OR OTHER HEALTH CARE PROVIDER. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 (OR YOUR LOCAL EMERGENCY LINE) IMMEDIATELY.  NO MEDICAL PROFESSIONAL-PATIENT RELATIONSHIP IS CREATED BETWEEN US AND YOU BY YOUR USE OF INFORMATION PROVIDED ON OR THROUGH THE DIARY OR SERVICES. NEVER DISREGARD, AVOID, OR DELAY IN OBTAINING MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT FROM YOUR PHYSICIAN OR OTHER HEALTH CARE PROVIDER BECAUSE OF SOMETHING YOU HAVE READ ON THE DIARY OR SERVICES, INCLUDING FROM THIRD PARTIES, OR AS A RESULT OF THE ACTIONS OR INACTIONS OF AUTHORIZED USERS.

Third Parties

As we continually try to make your experience with our company better and better, we may notify you about or suggest products or services offered by Service Providers and other third parties. You understand and agree that these products and services are subject to the Terms of Use and Privacy Policies of the third party vendors. You agree to indemnify our company for the performance of all third party products and services you choose to use. Please let us know if you are not satisfied with their product or service. You agree not to hold us responsible for their actions or any problems which result from using their products or services.

Disclaimer and Limitations on Our Liability

YOU AGREE TO USE THE DIARY AT YOUR OWN RISK.  THE DIARY IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, OUR COMPANY AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS (“AFFILIATES”) DISCLAIM ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. IN PARTICULAR, OUR COMPANY AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE DIARY, OR THE CONTENT OF ANY WEBSITES OR ONLINE SERVICES LINKED TO OR INTEGRATED WITH THE DIARY.  OUR COMPANY AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY:  (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (b) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SITE OR SERVICES; (c) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL INFORMATION OR USER DATA; (d) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE DIARY; (e) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SITE OR SERVICES BY ANY THIRD PARTY; OR (f) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THE DIARY. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE DIARY IS DONE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING FROM DOING SO.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE DIARY WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THESE TERMS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OUR COMPANY OR ITS AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR THE INDIRECT LOSS OF PROFIT, REVENUE, OR DATA) ARISING OUT OF OR RELATING TO DIARY, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, OR OTHER TORT THEORY OF LIABILITY) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages.  As a result, some of the above limitations and disclaimers may not apply to you.  To the extent we may not, as a matter of applicable law, disclaim any implied warranty or limit our liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such law.

Indemnification

You agree to indemnify and hold us and our Affiliates harmless from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney’s fees and legal costs) of any kind or nature, arising from or relating to, any actual or alleged breach of these Terms by you or anyone using your account.  If we assume the defense of such a matter, you will reasonably cooperate with us in such defense.

Arbitration

By accessing or using the Diary, you agree: (i) that any and all disputes you may have with, or claims you may have against us or our Affiliates relating to, arising out of or connected in any way with (a) the Diary, (b) these Terms, or (c) the determination of the scope or applicability of this agreement to arbitrate (a “Claim”), will be resolved exclusively by final and binding arbitration in accordance with the Rules of the American Arbitration Association (“AAA Rules”).  The arbitration will be heard and determined by a single arbitrator in Tucson, Arizona.  The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction.  The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it will not be disclosed beyond the arbitration proceedings, except as may be required by applicable law. If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of the administrative costs and arbitrator’s fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive.  In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate. This arbitration agreement does not preclude you from seeking action by federal, state, or local government agencies.  Each of us also have the right to bring qualifying claims in small claims court.  In addition, each of us retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with these Terms, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms. Neither you nor we may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim.  Claims may not be arbitrated on a class or representative basis.  The arbitrator can decide only on your and/or our individual Claims.  The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.  If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF.  OTHER RIGHTS THAT YOU OR OUR COMPANY WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.   If any provision of this Section is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section will continue in full force and effect.  This Section of these Terms will survive the termination of your relationship with us.

Other Provisions

Under no circumstances will we be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond our reasonable control. These Terms will be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any conflict of laws rules or provisions. You agree that any action of whatever nature arising from or relating to these Terms or the Diary will be filed only in the state or federal courts located in Tucson, Arizona.  You consent and submit to the personal jurisdiction of such courts for the purposes of any such action. If any provision of these Terms is found to be unlawful or unenforceable, then that provision will be deemed severable from these Terms and will not affect the enforceability of any other provisions. The failure by us to enforce any right or provision of these Terms will not prevent us from enforcing such right or provision in the future. We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law. These Terms supersede and replace any and all prior and existing representations, understandings, and agreements, expressed or implied.

Contact Us

Have questions or comments about these Terms? We are happy to respond, anytime. Please contact us at our Kindness Care center: By Email:  support@thediary.com By Telephone: (+1) 520-257-2525 or 855-794-6800