Welcome to Caterpilly.com (the “Site”), created by Caterpilly, LLC. This document constitutes a legally-binding agreement (“Agreement”) governing the terms of providing you with services.
Throughout the document, “Caterpilly”, “us”, “we”, and “our” refer to us, Caterpilly, LLC, or our website, www.caterpilly.com as is appropriate in the use of the words. Likewise, the words “you” and “your” refer to you, the person who is being presented with this document for your agreement.
Description of Service
Caterpilly provides a behavior fitness program designed to motivate, influence and track your progress to help you achieve your goals (the “Service”). The Service may provide online, mobile and text-messaging features.
Use of the Site and Service
Caterpilly is not responsible for the delivery of information and content from or to a mobile device as such delivery may fail due to circumstances or conditions beyond Caterpilly’s control. You understand and acknowledge that aspects of the Service, including but not limited to mobile network services, are outside of Caterpilly’s control and Caterpilly is not responsible or liable for such problems.
You understand and acknowledge that your use of the Site or Service from a terminal such as a mobile device or personal computer is subject to any agreements you have with your network service provider. Content distributed via the Site or Service, specifically that of email and text message, are unencrypted. As such, transmissions may be unknowingly and/or unintentionally intercepted by third parties. Your use of the Site or Service acknowledges this fact and releases Caterpilly, its contractors, agents, representatives and affiliates from any such liability that may arise in the event of such unauthorized interception or access.
As Caterpilly does not maintain or have access to your device, e-mail server, and does not maintain or have access to networks outside of the domain and control of Caterpilly, by using the Site or Service you agree that Caterpilly bears no liability or responsibility for the security or control of content, e-mail, text message, or otherwise, once delivered.
As reliability and effectiveness of the Site or Service may be limited by your geographic location, selected network operator or your mobile device, you agree and accept that Caterpilly is not responsible in the event the Site or Service or any portion of the Site or Service does not function.
Caterpilly is unable to guarantee the reliability and delivery of content or the Site or Service to your mobile device, since technology such as mobile networks and internet service providers are outside of Caterpilly’s control. Accordingly, by using the Site or Service you acknowledge that any such disruptions shall not be the responsibility of Caterpilly.
TEXT MESSAGING WHILE DRIVING IS THE CAUSE OF MANY ACCIDENTS AND DEATHS EACH YEAR. TEXT MESSAGING, OR EVEN LOOKING AT YOUR PHONE WHILE DRIVING IS ILLEGAL IN MANY STATES. YOU AGREE THAT YOU WILL NOT USE THE SITE OR SERVICE WHILE DRIVING.
License to Access and Use
You may access and use our Site or Service only for your personal use once you have registered. Any other access to or use of the Site or Service or its contents constitutes a violation of this Agreement and may violate other applicable laws, including copyright and trademark laws.
You may not access, use, or copy any portion of the Site or Service or their content through the use of bots, spiders, scrapers, web crawlers, indexing agents, or other automated devices or mechanisms. You agree not to remove or modify any copyright notice or trademark legend, author attribution, or other notice placed on or contained within any of the Site or Service’s content. Except as expressly authorized by us in writing, in no event you will reproduce, redistribute, duplicate, copy, sell, resell, or exploit for any commercial purpose any portion of the Site or Service or its content or any access to or use of the Site or Service or their content.
7. Rules for Online Conduct
You agree to use the Site or Service in accordance with all applicable laws. You are responsible for your own communications, including the upload, transmission and posting of information and are responsible for the consequences of posting on or through the Site or Service. We do not necessarily endorse, support, sanction, encourage, verify or agree with the comments, opinions or other statements made public at the Site or Service and any information or material sent by visitors through any interactive services that may be available at the Site or Service. Such information and material represents the view and is the responsibility of those visitors and does not necessarily represent the views of Caterpilly.
You agree that you will not misuse the Site or Service. Among other acts, your conduct constitutes misuse if you:
Distribute, disseminate, post, or publish any information or material that degrades, embarrasses, harasses, humiliates, intimidates, or threatens any individual or group of individuals on the basis of their age, ancestry, color, ethnicity, marital status, medical condition, mental or physical disability, national origin, race, sex, sexual orientation, union or nonunion affiliation, or any other basis protected by federal, state, or local law or ordinance;
Abuse, defame, harass, stalk, threaten, or otherwise violate others’ legal rights, including but not limited to rights of privacy and publicity;
Download or upload files that may damage the operation of another’s computer, such as computer viruses, corrupt files, or similar software;
Download or upload files that contain materials, including but not limited to software that violates the intellectual property, privacy, or publicity rights of others unless you own, control, or have been authorized to exercise such rights;
Misrepresent or omit the origin or source of any file you download or upload;
Download or upload files that do not contain the posted proprietary language, author attributions, and/or copyright, patent, or trademark notices;
Distribute, disseminate, post, or publish any indecent, infringing, obscene, or unlawful information or material;
Post, send, or otherwise disclose confidential information, trade secrets, or other confidential and/or protected proprietary data of any entity or person;
Download or upload files that you know, or reasonably should know, cannot be legally distributed through the Site;
Copy or create derivative works from, display, distribute, license, perform, publish, recreate, reproduce, sell, transfer, or transmit any information, products, services, or software obtained by, from, or through the Site;
Take any action that will or could impose an unreasonable or disproportionately large load on our site infrastructure; or
Engage in any other conduct that is, or that we deem to be, in conflict with these Terms.
What constitutes misuse, whether listed above or not, is determined at our sole discretion. We forbid misuse of the Site or Service and reserve the right to suspend or terminate your account (without refund) and to refuse any further use of the Site or Service by you for any misuse.
Our Site and Service is not intended for children under 13 years of age. No one under age 13 may provide any personal information to or on the Site or Service. If you are under 13, do not use this Site or Service or provide any information about yourself to us.
If a parent or guardian is made aware that a child under the age of 13 has provided us with personally identifiable information through any point of contact, we ask to be contacted by email via the contact page and we will delete the information.
You acknowledge and agree that the Site and Service and their contents, including, but not limited to, all photographs, information, data, text, product descriptions, software, music, sound, graphics, video, messages, tags and/or other materials (collectively, the “Content”) are proprietary or confidential information that belongs exclusively to Caterpilly and is protected by applicable copyright, trademark, trade secret, patent or other proprietary rights and laws. You are not authorized to reproduce, republish, distribute, transmit, modify, sell or otherwise use the Content, or to create derivative works based on the Content, in whole or in part, without Caterpilly’s express written authorization. This includes, but is not limited to, a prohibition on aggregating information on our Site that is in the public domain and publishing it elsewhere. Without limiting the above, you are not authorized to use the Content in order to gain a competitive advantage for marketing purposes (including third-party solicitations), to harass, abuse or harm others, or in a way that otherwise exceeds the scope of your authorized access to this Site. In addition, you are not authorized to use, access, search or obtain data from the Content of this Site by using any deep-link, framing, page scrape, robot, spider or other automatic device, program, algorithm or similar methodology.
Caterpilly™, all logos, slogans and trade dress, including the look and feel of the Site and Service (“Trademarks”) are trademarks owned by Caterpilly to uniquely identify our Site and Service offered. You agree not to use these Trademarks anywhere without our prior written consent. In other words, by accepting this Agreement, you cannot use the Trademarks for any purpose.
Termination of Access
Caterpilly reserves the right, in its sole discretion, to terminate your access to all or part of the Site or Service, without notice or liability, for any reason, including, but not limited to, the breach of any agreement between you and Caterpilly, including, without limitation, this Agreement. Following any such termination of access, you will continue to be bound hereunder to the fullest extent applicable.
THE SITE AND ALL SERVICE OFFERED BY CATERPILLY ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE, ILLNESS OR MEDICAL CONDITION. THE SITE AND ALL SERVICE OFFERED BY CATERPILLY DO NOT CONSTITUTE MEDICAL ADVICE OR AN ENDORSEMENT OF ANY CLINICAL OR THERAPEUTIC METHOD, TREATMENT, SERVICE OR ORGANIZATION. CATERPILLY IS NOT RESPONSIBLE FOR THE CONTENT PRODUCED BY OR THE SERVICES RENDERED BY ANY THIRD PARTY THAT MAY BE REFERENCED ON THE SITE OR TO WHICH ACCESS MAY BE PROVIDED VIA THE SERVICES. CATERPILLY MAY PROVIDE LINKS AND POINTERS TO INTERNET SITES MAINTAINED BY THIRD PARTIES (“THIRD PARTY SITES”) AND MAY FROM TIME TO TIME PROVIDE THIRD PARTY MATERIALS ON THE SERVICE. CATERPILLY DOES NOT OPERATE OR CONTROL IN ANY RESPECT, ANY INFORMATION, PRODUCTS OR SERVICES ON THESE THIRD PARTY SITES. THE SITE, THE MATERIALS AND PRODUCTS AVAILABLE IN OR ACCESSIBLE THROUGH THE SERVICES, AND ANY THIRD PARTY SITES ARE PROVIDED “AS IS” AND, TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, CATERPILLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES IMPLIED FROM A COURSE OF PERFORMANCE OR COURSE OF DEALING. CATERPILLY DOES NOT PROMISE THAT THE FUNCTIONS CONTAINED IN SUCH MATERIALS AND PRODUCTS, OR IN THE SERVICE, WILL BE UNINTERRUPTED OR ERROR-FREE, WILL BE AVAILABLE FOR USE, THAT DEFECT WILL BE CORRECTED, OR THAT THE SERVICE, INCLUDING THE STORAGE SERVICES AND THEIR CONTENTS, OR THE SERVER THAT MAKES THEM AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CATERPILLY DOES NOT PROMISE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE MATERIALS IN THE SERVICE OR IN THIRD PARTY SITES OR THE SERVICES PROVIDED BY THIRD PARTIES IN TERMS OF THEIR CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY, COMPLETENESS OR OTHERWISE.
YOU ASSUME ALL RISK OF ERROR AND/OR OMISSIONS IN THE SITE AND SERVICE, INCLUDING THE TRANSMISSION OR TRANSLATION OF INFORMATION. YOU ASSUME FULL RESPONSIBILITY FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKS TO SATISFY YOUR REQUIREMENTS FOR THE ACCURACY AND SUITABILITY OF THE SITE AND SERVICES, INCLUDING INFORMATION, AND FOR MAINTAINING ANY MEANS THAT YOU MAY REQUIRE FOR THE RECONSTRUCTION OF LOST DATA OR SUBSEQUENT MANIPULATIONS OR ANALYSES OF THE INFORMATION PROVIDED HEREUNDER. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SITE AND SERVICES, AND ANY INFORMATION SENT OR RECEIVED IN CONNECTION THEREWITH, MAY NOT BE SECURE AND MAY BE INTERCEPTED BY UNAUTHORIZED PARTIES.
Limitation of Liability
IN NO EVENT WILL CATERPILLY, ITS CONTRACTORS, SUPPLIERS, CONTENT-PROVIDERS, AND OTHER SIMILAR ENTITIES, AND THE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AND AGENTS OF EACH OF THE FOREGOING, BE LIABLE TO YOU, OR ANY THIRD PARTY FOR ANY LOSSES OR DAMAGES, INCLUDING ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL OR SIMILAR DAMAGES, ALLEGED UNDER ANY LEGAL THEORY IN RELATION TO OR ARISING FROM THIS AGREEMENT OR OUR SERVICE, FOR REASONS INCLUDING, BUT NOT LIMITED TO, FAILURE OF OUR SERVICE, NEGLIGENCE, OR ANY OTHER TORT.
You agree to defend, indemnify and hold us and our representatives harmless from any claims by you or any third party which may arise from or relate to this Agreement or the provision of our service to you, including any damages caused by your use of the Site or Service, their content and any services available on or through the Site or Service or acceptance of the offers contained on it. You also agree that you have a duty to defend us against such claims, and we may require you to pay for an attorney(s) in such cases. However, we reserve, and you grant to us, the right to assume the exclusive defense and control of any matter subject to indemnification by you hereunder. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties, and you shall be liable for the damages as though we had proceeded with a trial.
Choice of Law and Forum
This Agreement shall be governed by the laws of the Commonwealth of Massachusetts. The offer and acceptance of this contract is deemed to have occurred in the Commonwealth of Massachusetts.
By using the Site or Service, you agree to submit to the personal and exclusive jurisdiction of the courts located within Berkshire County in the Commonwealth of Massachusetts with respect to any claims arising from these Terms or your use of the Site.
Waiver of Jury Trial
YOU HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THE RIGHT TO A JURY TRIAL IN ANY ACTION, SUIT, OR PROCEEDEING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE MATTERS CONTEMPLATED HEREBY.
Waiver and Severability
Caterpilly’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If such right or provision is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court shall endeavor to give effect to the parties’ intentions as reflected in the provision, and other provisions of this Agreement shall remain in full force.
You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.
We may amend this Agreement from time to time. When we do so, we will update this page with the amended Agreement. You may refuse to agree to the amendments, but if you do so, you must immediately cease using our Site. You must visit this page each time you come to our website and read and agree to it.
If you have any questions regarding the Site or this Agreement, please email us.