Hello, and welcome to SMS Club (“The Service”), owned and operated by ProVitana (“The Company”). ProVitana is a company that provides its members with all aspects of dietary needs and information – including dieting advice, portion recommendations as well as other dietary information.
ProVitana reserves the right to change the Terms of Use. The most current version will be accessible here.
Message & data rates may apply. 5 msgs/week. You may opt-out of text alerts via the online portal or by texting “STOP” to opt-out. For help text “HELP”. In addition to signing up and agreeing via your cell phone, you may also sign up and agree to these terms through our website.
SMS TERMS OF SERVICE
Use of our text message-based services is subject to the following. The Wireless Carriers are not liable for delayed or undelivered messages.
Please note: Message & Data Rates May Apply.
Help
To obtain help you may:
Terminating the Service
You may terminate any of the Services or subscriptions at any time by texting “STOP”.
Frequency of Messaging
Text alerts are delivered 5 msgs/week.
Fees
ProVitana does not charge you to participate in the SMS Club Service. However, message and data rates may apply from your wireless carrier. Please consult your wireless carrier for applicable text messaging fees. Under no circumstances will ProVitana be responsible for fees that your wireless carrier may charge you for use of The SMS Club service.
Privacy
ProVitana respects and protects your privacy. We do not share any information collected. To see our Privacy Policy, click here.
Limitations on Use
You must be at least 17 years old to register for and use the SMS Club service. If you are under 17 years old, please obtain your parents’ permission before you sign up for the SMS Club service.
Supported Carriers
Mobile carriers are not liable for delayed or undelivered messages.
Participating carriers include T-Mobile®, Verizon Wireless, AT&T, Sprint, Boost, U.S. Cellular®, MetroPCS, Virgin Mobile, and Cricket.
Support Issues, Canceling or Unsubscribing
You may opt-out of the SMS Club service at any time by texting STOP, QUIT, END, CANCEL, UNSUBSCRIBE, or STOP ALL. Alternatively, you can send an email to [email protected] with your mobile phone number as the subject line. For help or other support issues, you can also send an email to [email protected]. Text HELP from your mobile phone.
Ownership; Trademarks; Modifications to Offers
You agree that ProVitana or its partners will own all legal rights, titles, and interests in and to the SMS Club services and any offers made through the SMS Club services, including any intellectual property rights. You agree that you shall not alter or modify any offers made through the SMS Club service, and shall not remove, obscure or alter any proprietary rights notices (including copyright or trademark notices) which made be affixed to the SMS Club services or offers made through the SMS Club services. Except as may be expressly authorized by a partner, you agree that you will not use any Trademark, service mark, trade name, or logo (“Trademarks”) of any entity in a way that is likely to or intended to cause confusion with respect to ownership of a Trademark, or that is likely to or intended to be detrimental to the goodwill in such Trademarks.
Termination
ProVitana reserves the right, at our sole discretion, to terminate your subscription at any time without notice or without future obligation.
Disclaimer of Warranties
ProVitana makes no warranties, express or implied regarding the SMS Club Service. The SMS Club Service is provided “as is” and on an “as available” basis, and ProVitana DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Factors beyond the control of ProVitana including without limitation, the speed of the mobile carrier networks and the internet may affect the performance of the SMS Club Service. ProVitana is not responsible for any acts that are beyond the control of ProVitana.
Limitation of Liability
Under no circumstances will ProVitana, its officers, directors, employees, or agents be liable to you for any damages whatsoever with respect to your use of the SMS Club Service. Including without limitation, any direct, indirect, incidental, consequential, exemplary or special damages even if advised of the possibility of the same. To the extent that in a particular circumstance any disclaimer or limitation on damages or liability set forth herein is prohibited by applicable law, then, instead of the provisions hereof in such particular circumstance, ProVitana will be entitled to the maximum disclaimers and/or limitations on damages and liability available at law or in equity by such applicable law in such particular circumstance, and notwithstanding the foregoing, in no event will ProVitana be liable for any damages or liability arising under these terms of use or your use of the SMS Club Service that exceeds US $500.
Indemnity
You agree to indemnify and hold each Company party harmless from any claim or demand, and any damages, costs, or expenses arising in connection with such claim or demand, including reasonable attorneys’ fees and costs, made by any other party due to or arising out of your breach of this agreement or the documents it incorporates by reference, or your violation of any law or the right of another party.
Governing Law; Venue
This agreement and its validity, construction, and performance will be governed in all respects by the laws, and in the state and federal courts of the state of Virginia, without regard to its choice of law provisions. You irrevocably agree to accept the exclusive personal jurisdiction and waive any objections to the venue of such courts.
DISPUTE RESOLUTION BY BINDING ARBITRATION
We each agree to first contact each other with any disputes and provide a written description of the problem, all relevant documents/information, and the proposed resolution. You agree to contact Us with disputes by writing to Us. Company will contact You by letter to Your billing address You provided Us.
Instead Of Suing In Court, We Each Agree To Arbitrate Disputes We each agree to finally settle all disputes (as defined and subject to any specific exceptions below) only by arbitration. In arbitration, there is no judge or jury and review is limited. However, just as a court would, the arbitrator must honor the terms and conditions in this Agreement, the Terms of Use, and the Privacy Statement, and can award the same damages and relief, including any attorney’s fees authorized by law. The arbitrator’s decision and award is final and binding, with some exceptions under the Federal Arbitration Act (“FAA”), and judgment on the award may be entered in any court with jurisdiction. We also each agree as follows:
“Disputes” are any claims (including the definition of “claims” contained in the section Limitation of Liability and Disclaimer of Warranty above) or controversies against each other related in any way to this Agreement, the Terms of Use, the Privacy Statement, or Your purchase and use of the Product. This includes claims You bring against Our affiliates, officers, directors, shareholders, employees, independent contractors, telecommunications providers, or agents or other representatives, or that Company brings against You. If either Company or You wants to arbitrate a dispute, We each agree to send written notice to the other providing a description of the dispute, previous efforts to resolve the dispute, all supporting documents/information, and the proposed resolution. Notice to You will be sent to Your billing address that You provided Us. We each agree to make attempts to resolve this dispute within forty-five (45) days of receipt of the notice to arbitrate, then We may submit the dispute to formal arbitration.
The FAA applies to this Agreement and arbitration provision. We each agree that the FAA’s provisions, not state law, govern all questions of whether a dispute is subject to arbitration. The arbitration will be administered by the National Arbitration Forum (“NAF”) under its arbitration rules. If any NAF rule conflicts with the terms of this Agreement, the terms of this Agreement apply. You can obtain procedures, rules, and fee information from the NAF at www.adrforum.com.
Unless We each agree otherwise, the Arbitration will be conducted by a single neutral arbitrator and will take place in the state of Your last billing address. The federal or state law that applies to the Agreement will also apply during the Arbitration.
We each agree not to pursue arbitration on a consolidated or class-wide basis. We each agree that any arbitration will be solely between You and Company (not brought on behalf of or together with another individual’s claim). If for any reason any court or arbitrator hold that this restriction in unconscionable or unenforceable, then this agreement to arbitrate does not apply and the dispute must be brought in court.
We each are responsible for our own costs relating to counsel, experts, and witnesses, as well as any other costs relating to the arbitration. However, Company will cover any arbitration administrative or filing fee above: (a) $25 if You are seeking less than $1,000 from Company; or (b) the equivalent court filing fees for a court action in the appropriate jurisdiction if you are seeking $1,000 or more from us.
No Class Actions
TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CONSOLIDATED OR CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSION OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING.
No Trial By Jury
TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING.