ACCEPTABLE USE POLICY

The following sets forth Vibrant’s “Acceptable Use Policy”:

You agree not to use the Services to collect, upload, transmit, display, or distribute any User Content (a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) that is unlawful, harassing, abusive, tortious, threatening, harmful, abusive, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (c) in violation of any law, regulation, or obligations or restrictions imposed by any third party.

In addition, you agree not to use the Services to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with or disrupt servers or networks connected to the Services or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Services, other computer systems or networks connected to or used together with the Services, through password mining or other means; (f) attempt to access or search the Site, Content, or Services with any engine, software, tool, agent, device or mechanism other than the software and/or search agents provided by Vibrant or other generally available third party web browsers; (f) forge any TCP/IP packet header or any part of the header information in any email or posting; (g) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Content, or Services; (h) access, tamper with, or use non-public areas of the Site, Apps, APIs, Vibrant’s computer systems, or the technical delivery systems of Vibrant’s providers; (i) attempt to probe, scan, or test the vulnerability of any system or network or breach any security or authentication measures; (j) access, tamper with, or use non-public areas of the Site, Vibrant’s computer systems, or the technical delivery systems of Vibrant’s providers; (k) attempt to probe, scan, or test the vulnerability of any system or network or breach any security or authentication measures; (l) in any way use the Site, Content or Services to send altered, deceptive or false source-identifying information; or (m) harass or interfere with another user’s use and enjoyment of the Services;

We reserve the right (but have no obligation under this Agreement) to review any User Content, investigate, and/or take appropriate action against you, in our sole discretion, if you violate the Acceptable Use Policy or any other provision of this Agreement, including removing or modifying your User Content, terminating your Vibrant Account, and/or reporting you to law enforcement authorities. We may also remove or modify your User Content if it, in our sole judgment, violates the rights of, harms, or threatens the safety of any other person, or creates liability for us or any other person. In order to cooperate with legitimate governmental requests, subpoenas or court orders, or to protect our business and customers, we may access and disclose any information considered necessary or appropriate, including your Vibrant Account username and password, IP address and traffic information, usage history, and your User Content.

APP STORES, THIRD PARTY SITES & ADS, OTHER USERS

App Stores. You acknowledge and agree that the availability of the Apps is dependent on the third party from which you received the Apps, e.g., the Apple iTunes App Store, Google Play, and/or other app stores (“App Stores”). You acknowledge that this Agreement is between you and Vibrant and not with the App Stores. Vibrant, not the App Stores, is solely responsible for the Apps, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). You agree to pay all fees charged by the App Stores in connection with the Apps. You agree to comply with, and your license to use the Apps is conditioned upon your compliance with, all applicable agreements, terms of use/service, and other policies of the App Stores. You acknowledge that the App Stores (and their subsidiaries) are a third party beneficiary of this Agreement and will have the right to enforce this Agreement.

Third Party Sites & Ads. The Services may contain links to third party sites and advertisements for third parties (collectively, “Third Party Sites & Ads”). Such Third Party Sites & Ads are not under the control of Vibrant and Vibrant is not responsible for any Third Party Sites & Ads. Vibrant provides these Third Party Sites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites & Ads. Advertisements and other information provided by Third Party Sites & Ads may not be wholly accurate. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources. When you link to a Third Party Site, the applicable service provider’s terms and policies, including privacy and data gathering practices govern. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party. Your transactions and other dealings with Third Party Sites & Ads that are found on or through the Site, Apps or Services, including payment and delivery of related goods or services, are solely between you and such merchant or advertiser.

Other Users. Each user of the Service is solely responsible for any and all their User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content. Your interactions with other Service users are solely between you and such user. You agree that Vibrant will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Service user, we are under no obligation to become involved.

Release. You hereby release us, our officers, employees, agents and successors from claims, demands any and all losses, damages, rights, claims, and actions of any kind including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of any App Store, any other Service users, or any Third Party Sites & Ads.

IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

DISCLAIMERS

THE SERVICES (INCLUDING SITE, APPS, AND CONTENT) AND USER CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, VIBRANT EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT OR NON-INFRINGEMENT.

VIBRANT MAKES NO WARRANTY THAT THE SITE, APPS, CONTENT, USER CONTENT OR SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. VIBRANT MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES, OR INFORMATION OBTAINED THROUGH THE SITE, APPS, CONTENT, USER CONTENT OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SITE, APPS, CONTENT, USER CONTENT OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY INFORMATION OR ADVICE WITH RESPECT TO ANY FOOD PRODUCT. VIBRANT DOES NOT REGULARLY MONITOR OR UPDATE THE ACCURACY OR RELIABILITY OF THE CONTENT OR USER CONTENT.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM VIBRANT OR THROUGH THE SITE, APPS, CONTENT, USER CONTENT OR SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN OR CREATE ANY LIABILITY ON THE PART OF VIBRANT.

THE SITE, APPS, CONTENT, USER CONTENT AND SERVICES ARE FOR CONSUMER EDUCATIONAL USE ONLY. NOTHING CONTAINED IN THE SERVICES IS OR SHOULD BE CONSIDERED, OR USED AS A SUBSTITUTE FOR, MEDICAL, NUTRITIONAL OR ANY OTHER PROFESSIONAL ADVICE, DIAGNOSIS OR TREATMENT. THIS SITE, APPS, CONTENT AND THE SERVICES DO NOT CONSTITUTE THE PRACTICE OF ANY MEDICAL, NUTRITIONAL, DIETETIC, NURSING OR OTHER PROFESSIONAL HEALTH CARE ADVICE, DIAGNOSIS OR TREATMENT. VIBRANT ADVISES USERS TO ALWAYS SEEK THE ADVICE OF A PHYSICIAN OR OTHER QUALIFIED, LICENSED HEALTH CARE PROVIDER WITH ANY QUESTIONS REGARDING PERSONAL HEALTH, NUTRITION OR MEDICAL CONDITIONS. NEVER DISREGARD, AVOID OR DELAY IN OBTAINING MEDICAL ADVICE FROM YOUR DOCTOR OR OTHER QUALIFIED, LICENSED HEALTH CARE PROVIDER BECAUSE OF SOMETHING YOU HAVE READ ON THE SITE OR APPS. VIBRANT MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE INFORMATION, TOOLS, OR CONTENT INCLUDED IN THE SITE, APPS, CONTENT, USER CONTENT OR SERVICES.

PLEASE ALSO REVIEW THE SPECIFIC DISCLAIMERS IN SECTION “CERTAIN DISCLAIMERS”.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

LIMITATION ON LIABILITY

IN NO EVENT SHALL WE (AND OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES (INCLUDING THE SITE, APPS, OR SITE CONTENT), OR THIRD PARTY SITES & ADS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES (INCLUDING THE SITE, APPS, CONTENT AND USER CONTENT), AND THIRD PARTY SITES & ADS ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTING SYSTEM OR LOSS OF DATA RESULTING THEREFROM.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, YOU AGREE THAT THE AGGREGATE LIABILITY OF VIBRANT TO YOU FOR ANY AND ALL CLAIMS ARISING FROM THE USE OF THE SITE, CONTENT OR SERVICES IS LIMITED TO THE AMOUNTS YOU HAVE PAID TO VIBRANT FOR ACCESS TO AND USE OF THE SITE, CONTENT, OR SERVICES. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE AGREEMENT BETWEEN VIBRANT AND YOU.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

INDEMNITY

You agree to indemnify and hold Vibrant, its successors, subsidiaries, affiliates, any related companies, its suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of each of them harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Services, (b) your User Content, or (c) your violation of this Agreement. Vibrant reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Vibrant. Vibrant will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

TERM AND TERMINATION

If you violate any of these Terms of Service, your permission to use the Site, Apps, Content, and Services will automatically terminate. Vibrant reserves the right to revoke your access to and use of the Site, Apps, Content, and Services at any time, with or without cause.

DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE

Vibrant respects the intellectual property rights of others and expects users of the Site to do the same. At Vibrant’s discretion and in appropriate circumstances, Vibrant may terminate the accounts of users or prevent access to the Site by users who infringe the intellectual property rights of others. Vibrant may access, preserve and disclose to third parties any of your information or data (including personally identifiable information and private communications) related to a written complaint of copyright infringement if Vibrant believe in its sole discretion that such access, preservation, or disclosure is necessary or useful to respond or otherwise address such complaint. Pursuant to 17 United States Code 512(c)(2) (Digital Millennium Copyright Act of 1998), Vibrant’s designated agent for notice of alleged copyright infringement appearing on the Site is: Copyright Agent, email: legal@Vibrant.com

Filing a notice of infringement with Vibrant requires compliance with the requirements specified in Title II of the Digital Millennium Copyright Act of 1998. The text of this statute can be found at the U.S. Copyright Office web site, http://lcweb.loc.gov/copyright

GENERAL

Changes to Terms of Service. You acknowledge and agree that Vibrant may revise these Terms of Service from time to time. By continuing to access or use the Site, Content, or Services after Vibrant makes any such revision, you agree to be bound by the revised Terms of Service.

Severability. In the event that any provision of these Terms of Service is held to be invalid or unenforceable, the remaining provisions of these Terms of Service will remain in full force and effect.

Waiver. The failure of Vibrant to enforce any right or provision of these Terms of Service will not be deemed a waiver of such right or provision.

Governing Law. This Agreement shall be governed by the laws of the State of California without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. Notwithstanding the foregoing, we may seek injunctive or other equitable relief to protect our intellectual property rights in any court of competent jurisdiction.

Copyright/Trademark Information. Copyright © 2018-2019, Vibrant. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.

Entire Agreement. This Agreement (which includes the Privacy Policy and any other rules posted on the Site or Apps) constitute the entire and exclusive agreement between Vibrant and you regarding the Site, Apps, Content, User Content, and Services, and these Terms of Service supersede and replace any prior agreements between Vibrant and you regarding the Site, Content, and Services. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Vibrant’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.

If you have any questions about these Terms of Service, please contact Vibrant at support@Vibrant-america.com.