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PLEASE READ THE FOLLOWING TERMS AND CONDITIONS RELATING TO YOUR USE OF OUR WEB SITE CAREFULLY.

TERMS OF USE

1. SCOPE OF TERMS AND CONDITIONS

eSoundHealth is a service provided by Sound Health Solutions, Inc ("The Company"). By using our Web site and/or one of our online fee-based products or offerings (collectively, our "Fee-Based Products"), you agree to the terms and conditions set forth in this Terms and Conditions Subscription Agreement (this "Agreement"). This Agreement constitutes the entire agreement between you and the Company with respect to eSoundHealth and is for use of residents in the United States.

2. CHANGES TO TERMS AND CONDITIONS

The Company reserves the right to change, modify, add or remove portions of this Agreement at any time. You should check this Agreement periodically for changes. By using this Web site or our Fee-Based Products after we post any changes to this Agreement or otherwise notify you of such changes, you agree to accept those changes, whether or not you have reviewed them. The Company reserves the right to refuse or cancel your subscription for any reason, including your indication of certain medical conditions. If you do not agree to this Agreement, you should not use our Web site and/or our Fee-Based Products and you should arrange to cancel your registered user account or subscription with us, as applicable.

3. YOUR USE OF THIS WEB SITE AND OUR FEE-BASED PRODUCTS

Unless otherwise specified, we grant you a non-exclusive, non-transferable, limited right to access, use and display this Web site and the material provided hereon, and the Fee-Based Products that you subscribed to, for your personal, noncommercial use, provided that you comply fully with the provisions of this Agreement. You agree not to assign, transfer or sublicense your rights as a registered user of, or subscriber to, this Web site and/or our Fee-Based Products. You understand that only you may use your user account and that your subscription to our Fee-Based Products is only valid for your personal, noncommercial use and may not be shared with others. You agree to be financially responsible for all usage or activity of Fee-Based Products subscribed to by you. To subscribe to our Fee-Based Products, you represent that you are a United States citizen or resident with a valid United States mailing address.

By using this Web site and/or our Fee-Based Products, you agree to be legally bound and to abide by this Agreement, just as if you had signed this Agreement. If you do not comply with this Agreement at any time, we reserve the right to cancel or terminate your user account and/or access to this Web site (or any part thereof) and/or our Fee-Based Products. In our sole discretion and without prior notice or liability, we may discontinue, modify or alter any aspect of the Web site or our Fee-Based Products, including, but not limited to, (i) restricting the time the Web site and/or a Fee-Based Product is available, (ii) restricting the amount of use permitted, and (iii) restricting or terminating any user's right to use the Web site and/or any of our Fee-Based Products. You agree that any termination or cancellation of your access to, or use of, the Web site and/or our Fee-Based Products may be effected without prior notice. If you do not abide by the terms of this Agreement, except as we may otherwise provide from time to time, you agree that we may immediately deactivate or delete your user account and all related information and/or files in your user account and/or bar any further access to such information and/or files, our Web site (or part thereof) and/or our Fee-Based Products. Further, you agree that we shall not be liable to you or any third-party for any termination or cancellation of your access to, or use of, our Web site and/or our Fee-Based Products, except for a refund of any fees or charges prepaid by you with respect to our Fee-Based Products in accordance with paragraph 4 of this Agreement. You acknowledge that your only right with respect to any dissatisfaction with any modification or discontinuation of service made by us pursuant to this provision or this Agreement, or any policies or practices by us in providing this Web site or our Fee-Based Products, including without limitation any change in content or any change in the amount or type of fees or charges associated with the Fee-Based Products, is to cancel or terminate your subscription or registered user account, as applicable. From time to time, we may supplement this Agreement with additional terms and conditions pertaining to specific content, activities or events ("Additional Terms"). Such Additional Terms may be placed on the Web site to be viewed in connection with the specific content, activities, features or events and shall be identified as such. You understand and agree that such Additional Terms are hereby incorporated by reference into this Agreement.

4. CHARGES AND FEES FOR FEE-BASED PRODUCTS

Certain portions, components, content and features of this Web site are only available to individuals who purchase a subscription to one of our Fee-Based Products. As a subscriber to one of our Fee-Based Products, you agree as follows:

A. You agree to pay, using a valid credit card (or other form of payment which we may accept from time to time), the fixed and periodic charges and fees (including prepayment plan fees for multiple periods) set forth on this Web site (such the recurring Monthly Fee), applicable taxes, and other charges and fees incurred in order to access our Fee-Based Products. We reserve the right to increase charges and fees, or to institute new charges or fees at any time, upon reasonable advance notice communicated to you through a posting on this Web site or such other means as we may deem appropriate from time to time (including conventional mail). We will automatically charge your credit card or other account at the start of the standard monthly billing period unless you terminate or cancel your subscription before the relevant renewal period begins. Except in the case of a multiple-period prepayment plan or if you were eligible for a discounted rate but are no longer eligible for that rate, the renewal charge will be the same as the prior period's charge, unless we notify you in advance at the time of sign up or prior to the beginning of the renewal period as described above. Each time you use our Fee-Based Products you reaffirm your agreement that we may charge your credit card (or other form of payment, if applicable). In the event we cannot charge your account, we reserve the right to terminate your access to our Fee-Based Products. If you purchased a multiple- period prepayment plan or you were eligible for a discounted rate but are no long eligible for that rate, your subscription will automatically be renewed at our standard subscription rates and for our standard period (usually monthly) at the start of the renewal period.

B. In addition to the fees and charges set forth above, you are responsible for all charges and fees associated with connecting to our Web site and our Fee-Based Products, including without limitation all telephone access lines (including long-distance charges, when applicable), internet service provider fees, telephone and computer equipment, sales taxes and any other fees and charges necessary to access our Fee-Based Products.

C. For purposes of your use of our Fee-Based Products including identification and billing, you agree to provide us with true, accurate and complete information as required by the subscription or sign up process to our Fee-Based Products ("Subscription Data"), including your legal name, address, telephone number, email address and applicable billing information (e.g., credit card number and expiration date), and to allow us to share your Subscription Data with third parties for the purpose of verifying the information you provide and billing your credit card or otherwise charging your account. You agree to maintain and promptly update the Subscription Data to keep it accurate. Without limiting any other provision of this Agreement, if you provide any information that is untrue, inaccurate, or incomplete, or we have reasonable grounds to suspect that such is the case, we reserve the right to suspend or terminate your user account or subscription and refuse any and all current or future use by you of our Web site (or any portion thereof) or any of our Fee-Based Products. You are obligated to contact eSoundHealth Support to update your Subscription Data if any billing information changes.

E. Except for multiple- period prepayment plans, your failure to satisfy limitations we set based on demographic, geographic, health or other similar criteria, or if we terminate your subscription to one of our Fee-Based Products prior to the end of the applicable period, you agree that all fees and charges assessed by us are nonrefundable. Nonrefundable fees include the full Monthly Fee for any month (or portion thereof) elapsed (regardless of whether you logged onto our Web site or used the Fee-Based Product during that month). If your cancellation of your subscription to one of our Fee-Based Products is due to your failure to satisfy limitations we set based on demographic, geographic, health or other similar criteria prior to the end of a period for which you have incurred a charge, we will refund any unused portion of such period in accordance with the refund policy we have in effect at such time. If we cancel or terminate your subscription to one of our Fee-Based Products (as opposed to you canceling your subscription) prior to the end of a period for which you have incurred a charge, we will refund any unused portion of such period on a pro rata basis.

5. CANCELLATION OF SUBSCRIPTION

Either you or the Company may terminate or cancel your subscription to our Fee-Based Products at any time. You understand and agree that the cancellation or termination of your subscription is your sole right and remedy with respect to any dispute with us including, without limitation, any dispute related to, or arising out of: (i) any terms of this Agreement or our enforcement or application of this Agreement; (ii) any practice or policy of eSoundHealth.com, including this Agreement and our Privacy Policy, or our enforcement or application of these policies; (iii) the content available through this Web site or any change in content provided through the Web site or on a Fee-Based Product; (iv) your ability to access and/or use our Web site or any Fee-Based Product; or (v) the amount or types of our fees or charges, surcharges, applicable taxes, or billing methods, or any change to our fees or charges, applicable taxes, or billing methods. Upon cancellation or termination of your subscription to our Fee-Based Products, we may immediately deactivate your user account and all related information and/or files in your user account and/or bar any further access to such information and/or files, our Web site (or part thereof) and/or our Fee-Based Products, except as we may otherwise provide from time to time.

You can cancel your subscription by contacting eSoundHealth Support or by such other means as we may provide from time to time. We will attempt to process all cancellation requests within 72 hours after we receive your request. If you cancel near the end of your billing period and are inadvertently charged for the next period's fee, contact eSoundHealth Support to have the charges reversed. If you use our Fee-Based Product during that next period, you will not be entitled to a refund. We reserve the right to collect fees, surcharges, or costs incurred before your cancellation takes effect.

6. AVAILABILITY OF FEE-BASED PRODUCTS

The availability and use of our Fee-Based Products may be limited based on demographic, geographic, health or other criteria as we may establish from time to time. You understand and agree we may disallow you from subscribing to our Fee-Based Products or may terminate your subscription to our Fee-Based Products at any time based on these criteria. For example, pregnant women and individuals under the age of 18 may not subscribe to our Fee-Based Products.

7. HEALTH DISCLAIMER

This Web site and our Fee-Based Products provide weight loss management and information applications and content published over the Internet and are intended only to assist users in their personal weight loss efforts. eSoundHealth does not provide medical diagnosis. Nothing contained in this Web site should be construed as diagnosis. eSoundHealth is an educational and informational service to help you make informed decisions about your diet and health. The content, tools and services of eSoundHealth are not intended to be, and should not be considered, a substitute for professional medical advice, diagnosis or treatment. Before undertaking any activity or adhering to any information or recommendation from eSoundHealth, please consult your physician or other healthcare provider. Never disregard professional medical advice or delay in seeking it because of something you have read on eSoundHealth.

You are urged and advised to seek the advice of a physician before beginning any weight loss effort or regimen. This Web site is intended for use only by adult individuals with at least minimal physical mobility, including the ability to sit-and-stand and ambulate. The Web site is not intended for use by minors, pregnant women or individuals with certain types of health conditions. Such individuals are specifically warned to seek professional medical advice prior to initiating any form of weight loss effort or regimen.

If you are contemplating suicide or otherwise in crisis, do not use this service now. You should call 911 or go to the nearest hospital emergency room immediately. Keep in mind that interactions with Change coaches are not meant to be a substitute for therapy. If you are currently seeing a therapist, continue with your own therapy, and inform your therapist that you are participating with eSoundHealth.

This program is not designed to treat depression or any other form of mental illness. We do not provide any form of diagnosis or treatment on this site. If you suffer from anorexia or bulimia, this site is not appropriate for you. If you have any questions regarding such disorders or any other aspect of your mental health, please check with your mental health professional or primary healthcare provider.

8. COMMUNITY STANDARDS AND CONDUCT GUIDELINES

You acknowledge that all Content and all information, software, photos, video, text, graphics, music, sounds, questions, creative suggestions, messages, comments, feedback, ideas, recipes, notes, drawings, articles and other materials posted, emailed, or otherwise transmitted to or on this Web site, whether posted at our request or voluntarily, and whether publicly posted or privately transmitted (collectively, the "Postings"), are the sole responsibility of the person who made such Postings. This means that you are entirely responsible for all Postings that you post, email or otherwise transmit to this Web site. We do not control the Postings posted, emailed or otherwise transmitted on our Web site by others and, as such, we do not guarantee the accuracy, integrity or quality of such Postings. Although we have adopted community standards and conduct guidelines for the users of our Web site (as described below), you understand that by using this Web site, you may be exposed to Postings that are offensive or objectionable. Under no circumstances will we be liable in any way for any Postings (other than for Content developed by us or our affiliates), including, but not limited to, for any errors or omissions in any Postings, or for any loss or damage of any kind incurred as a result of the use of any Postings posted, emailed or otherwise transmitted to or through this Web site.

You agree not to use this Web site (including any Forums) to:

  • a. Upload, post, email or otherwise transmit any Postings or other materials that are unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable (in our sole discretion);
  • b. Harm minors in any way;
  • c. Impersonate any person or entity, including, but not limited to, a director, officer, employee, shareholder, agent or representative of the Company, our affiliates or any other person or entity, or falsely state or otherwise misrepresent your affiliation with the Company, our affiliates or any other person or entity;
  • d. Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Postings or other materials transmitted to or through this Web site;
  • e. Upload, post, email or otherwise transmit any Postings or other materials that you do not have a right to upload, post, email or otherwise transmit under any law or under contractual or fiduciary relationships (such as insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
  • f. Upload, post, email or otherwise transmit any Postings or other materials that infringe upon any patent, trademark, trade secret, copyright, right of privacy or publicity or other proprietary rights of any party;
  • g. Upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of commercial solicitation, except in those areas, if any, that are specifically designated for such purpose;
  • h. Upload, post, email or otherwise transmit any Postings or other materials that contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
  • i. Disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of a Forum (or other portion of this Web site) are able to type, or otherwise act in a manner that negatively affects other users' ability to use any Forum;
  • j. Interfere with or disrupt this Web site or servers or networks connected to this Web site, or disobey any requirements, procedures, policies or regulations of networks connected to the Web site;
  • k. Intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, any regulations having the force of law;
  • l. "Stalk" or otherwise harass another user or employee of this Web site; or
  • m. Collect or store personal data or attempt to collect or store personal data about other users of the Web site.

9. INTERPRETING THIS AGREEMENT

All parts of this Agreement apply to the maximum extent permitted by law. A court may hold that we cannot enforce a part of this Agreement as written. If this happens, then you and we will replace that part with terms that most closely match the intent of the part that we cannot enforce. The rest of this Agreement will not change. This is the entire Agreement between you and the Company regarding your use of eSoundHealth. It supersedes any prior Agreement or statements regarding your use of eSoundHealth. If you have confidentiality obligations related to eSoundHealth, those obligations remain in force. The section titles in this Agreement do not limit the other terms of this Agreement.

10. INFORMATION YOU SUBMIT

We are committed to protecting your privacy and security. For more information, you should review our Privacy Policy, which is incorporated into this Agreement by this reference. The Privacy Policy governs the personal information you submit to the Company through eSoundHealth. You are using eSoundHealth at your own risk and you, along with your healthcare provider, are personally responsible for verifying its suitability for your needs.

11. USE OF CONTENT and COPYRIGHT

The Company authorizes you to view or download a copy of the material on eSoundHealth solely for your personal, noncommercial use. The eSoundHealth material is protected by copyright under both United States and foreign laws. Title to the eSoundHealth material remains with the Company. Any use of the Content not expressly permitted herein is a breach of this Agreement and may violate copyright, trademark, and other laws. All rights not expressly granted herein are reserved to the Company.

12. CHILDREN'S PRIVACY

We are committed to protecting the privacy of children. You should be aware that this Site is not intended or designed to attract children under the age of 18. By your use of eSoundHealth, you certify that you are over the age of 18.

13. NO WARRANTIES

The use of eSoundHealth is at your own risk. When using eSoundHealth, information will be transmitted over a medium that may be beyond the control and jurisdiction of the Company and its suppliers and licensors. Accordingly, the Company assumes no liability for or relating to the delay, failure, interruption, or corruption of any data or other information transmitted in connection with use of eSoundHealth.

eSoundHealth is provided "as-is," "with all faults" and "as available." The Company, its licensors, and its suppliers, to the fullest extent permitted by law, disclaim all warranties, either expressed or implied, statutory or otherwise, including but not limited to the implied warranties of merchantability, non-infringement of third parties' rights and fitness for particular purpose. Without limiting the foregoing, the Company, its licensors, and its suppliers make no representations or warranties about the following: a) the accuracy, reliability, completeness, or timeliness of eSoundHealth or the materials, content, software, text, graphics, links, or communications provided on or through the use of eSoundHealth or the Company; b) the satisfaction of any government regulations requiring disclosure of information on prescription drug products or the approval or compliance of any software tools with regard to the materials and content contained within eSoundHealth.

Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.

14. CHANGES TO SERVICE

The Company may change the service or delete features at any time and for any reason. The Company may cancel or suspend your service at any time with or without cause and/or with or without notice. Upon service cancellation, your right to use the service stops immediately.

15. WAIVER, RELEASE AND LIMITATION OF LIABILITY

You hereby release and forever waive any and all claims you may have against the Company, its officers, directors, employees, agents, consultants, information providers, licensors or suppliers for losses or damages you sustain in connection with your use of eSoundHealth. Notwithstanding the foregoing, in no event shall the Company, its licensors, its suppliers, or any third parties be liable for any damages (including, without limitation, incidental and punitive damages, personal injury/wrongful death, lost profits, or damages resulting from lost data or business interruption) resulting from the use of or inability to use eSoundHealth, whether based on warranty, contract, tort, or any other legal theory, and whether or not the Company is advised of the possibility of such damages. The Company shall be liable only to the extent of actual damages incurred by you, not to exceed the fees paid by you, if any, for the particular information or service provided. Remedies under this Agreement are exclusive and are limited to those expressly provided for in this Agreement.

16. INDEMNITY

You agree to defend, indemnify, and hold the Company, its officers, directors, employees, agents, licensors, and suppliers, harmless from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from, your violation of this Agreement.

17. GENERAL

The Company makes no claims that eSoundHealth and the Content are appropriate or may be downloaded outside of the United States. Access to eSoundHealth and the Content may not be legal by certain persons or in certain countries. If you access eSoundHealth from outside the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction. You expressly agree that exclusive jurisdiction for any dispute with the Company, or in any way relating to your use of the Company site, resides in the courts of the State of Washington and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of the State of Washington in connection with any such dispute including any claim involving the Company or its affiliates, subsidiaries, employees, contractors, officers, directors, telecommunication providers, and content providers. This Agreement is governed by the internal substantive laws of the State of Washington, without respect to its conflict of laws principles. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any of this Agreement shall be deemed a further or continuing waiver of such term or condition or any other term or condition. The following provisions survive the expiration or termination of this Agreement for any reason whatsoever: Liability, Indemnity, and Jurisdiction.

18. CONTACT

Questions or comments regarding this Web site or the program should be directed to:

E-mail: websupport@4shs.com
Phone: (866) 691-4747
Fax: (206) 749-5444 ATTN: eSoundHealth Support

Address: eSoundHealth Support
c/o Sound Health Solutions, Inc.
301 NE 100th Street, Suite 100
Seattle, WA 98125-8006

Last Updated: October 1, 2007
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