Healthier Habits Terms And Conditions Of Use

Effective Date: August 8, 2023

Welcome to Healthier Habits. These Terms and Conditions of Use (the “Terms”) apply and govern your use of the Healthier Habits website and mobile application (the “App”). By joining Healthier Habits, you are agreeing to all the terms and conditions below.

Schnuck Markets, Inc. and any successor entity (referred to throughout as “Schnucks”, “we” or “us”), offers a variety of content and services through the Healthier Habit website and App (collectively, the “Services”).

THESE TERMS INCLUDE A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER IN SECTION 9. THIS PROVISION AFFECTS YOUR RIGHTS TO RESOLVE DISPUTES WITH SCHNUCKS AND YOU SHOULD REVIEW IT CAREFULLY. YOUR CHOICE TO MAINTAIN AN ACCOUNT, ACCESS OR USE THE SERVICES (REGARDLESS OF WHETHER YOU CREATE AN ACCOUNT WITH US) CONSTITUTES YOUR AGREEMENT TO THESE TERMS AND OUR THEN-CURRENT PRIVACY POLICY AVAILABLE AT SCHNUCKS.COM WHICH IS INCORPORATED INTO THE TERMS. IF YOU DISAGREE WITH ANY PART OF THE TERMS, THEN YOU ARE NOT PERMITTED TO USE OUR SERVICES.

By agreeing to these Terms in connection with Healthier Habits, you are also agreeing to the terms and conditions in connection with Schnucks Loyalty Rewards Program (“Rewards Terms”) which can be found at schnucks.com/schnucks-rewards-terms-conditions and Schnucks Terms of Use posted at schnucks.com. In the event of any conflict between these Terms and the Rewards Terms or any conflict between these Terms and Schnucks Terms of Use, these Terms shall control.

1. Use of the Services and Your Account
   1. Who can use the Services
      You must be at least 18 years old to use the Services.
   2. Service Updates, Changes and Limitations
      Our Services are constantly evolving. With the launch of new products, services, and features, we need the flexibility to make changes, impose limits, and occasionally suspend or terminate certain Services. We may also update our Services, which might not work properly if you don’t install the updates.The Services change frequently, and their form and functionality may change without prior notice to you.We may provide updates (including automatic updates) for certain Services as and when we see fit. This may include upgrades, modifications, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Certain portions of our Services may not properly operate if you do not install all Updates. You acknowledge and agree that the Services may not work properly if you do not allow such Updates and you expressly consent to automatic Updates. Further, you agree that the Terms (and any additional modifications of the same) will apply to any and all Updates to the Services. We may change, suspend, or discontinue any or all of the Services at any time, including the availability of any product, feature, database, or Content. In addition, we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of any Service. We may also impose limits on certain Services or restrict your access to part or all of the Services without notice or liability.
   3. Service Monitoring and Suspension
      We reserve the right to refuse to provide the Services to anyone, and can monitor, terminate or suspend your account or access to the Services at any time.We may also deactivate, terminate or suspend your account or access to certain Services at any time: (1) if we, in our sole discretion, determine you are or have been in violation of these Terms or the spirit thereof, (2) if we, in our sole discretion, determine you have created risk or possible legal exposure for Schnucks, the general public, any third party, or any user of our Services, (3) in response to requests by law enforcement or other government agencies, (4) upon discontinuation or material modification of any Services, or (5) due to unexpected technical issues or problems. We will endeavor to notify you by email or the next time you attempt to access your account after any such deactivation, termination or suspension.
   4. Security
      Please let us know right away if you believe your account has been hacked or compromised.We care about the security of our users. While we work hard to protect the security of your Personal Data and account, we cannot guarantee that unauthorized third parties will not be able to defeat our security measures.
2. Ownership and Use of Content
   1. Definitions
      Content is what shows up in-app or on the website when you use our Services.For purposes of these Terms, “Content” means any form of information, data or creative expression and includes, without limitation, video, audio, photographs, images, illustrations, animations, tools, text, ideas, communications, replies, “likes,” comments, software, scripts, executable files, graphics, geo-data, meal plans, annotations, nutrition information, recipes, interactive features, designs, copyrights, trademarks, service marks, branding, logos, and other similar assets, patents, sounds, applications and any intellectual property therein, any of which may be generated, provided, or otherwise made accessible on or through the Services.
   2. Ownership
      We own the Content.All Content and all copyright, trademarks, design rights, patents and other intellectual property rights (registered and unregistered) in and on the Services belong to Schnucks and/or its partners or applicable third parties. Schnucks and/or its partners or third parties retain ownership, responsibility for and/or other applicable rights in all Content. Except as expressly provided in the Terms, nothing grants you a right or license to use any Content, including any content owned or controlled by any of our partners or other third parties. You agree not to duplicate, publish, display, distribute, modify, or create derivative works from the material presented through the Services unless specifically authorized in writing by us.
   3. Our License to You
      You are welcome to access and use the Content and Services. We work hard to provide a great experience for our users, so please respect our intellectual property rights and only use the Content and Services as intended. This includes not using any Content or Services for commercial purposes without our permission.Subject to your compliance with these Terms, we grant you a limited, revocable, personal, non-transferable, and non-exclusive right and license to access and use the Services and Content for your own personal, noncommercial purposes, provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, sell, assign, sublicense, grant a security interest in, transfer or otherwise commercially exploit any right in the Content or Services.
   4. Acceptable Usage Guidelines
      Content. Except as expressly permitted by applicable law or authorized by Schnucks, you agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, the Services’ software, or any Content offered as part of the Services, in whole or in part. You shall not download, copy, or save Content, except (i) as expressly permitted by the functionality of certain Services as provided for in the specific guidelines and/or additional terms applicable to those Services, or (ii) solely for personal use or your records.
      Commercial Usage of the Services. The Services are intended only for your personal, non-commercial use. You shall not use the Services to sell a product or service, increase traffic to your own website or a third-party website for commercial reasons (such as advertising sales), or otherwise undertake any endeavor aimed at deriving revenue. For example, you shall not take the results from a search of the Services and reformat and display them, or mirror our home pages or results pages on your website. Moreover, you shall not “meta-search” our Services. If you seek to make commercial use of the Services, you must enter into an agreement with us to do so in advance.
      Linking to the Services. If you would like to link to our Services on your website or app, please follow these rules: (i) any link to the Services must be a text only link clearly marked “Schnucks Healthier Habits” (without the use of any other trademark, logo copyright or any other intellectual property asset owned or controlled by Schnucks) or in some other format directed by us, (ii) the appearance, position and other aspects of the link may not damage or dilute the goodwill associated with our marks, (iii) the link must “point” to the root domain name of the Services and not to other pages within the Services, (iv) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with Schnucks, (v) when selected, the link must display the Service on full-screen and not within a “frame” on the linking website or service, and (vi) we reserve the right to revoke our consent to the link at any time and in our sole discretion, and upon our notification to you of such revocation of consent, you agree to promptly remove the relevant link.
3. Fitness and Wellness Activities and Dietary Guidance
   It’s important to us that users stay healthy while achieving their wellness goals. Please be responsible and use your best judgment and common sense. We provide our Services for information purposes only, and can’t be held liable if you suffer an injury or experience a health condition.
   1. Safety First
      Schnucks cares about your safety. You should consult with your healthcare provider(s) and consider the associated risks before using our Services in connection with any wellness regimen-oriented Content or any dietary program-oriented Content (“Programs”). By using our Services, you agree, represent and warrant that you have received consent from your physician to participate in the Programs, or any of the related activities made available to you in connection with the Services. Further, you agree, represent and warrant that you have consulted with your physician before making any dietary changes based upon information available through the Services. Everyone’s condition and abilities are different, and participating in the Programs and other activities promoted by our Services is at your own risk. If you choose to participate in the Programs and these activities, you do so of your own free will and accord, knowingly and voluntarily assuming all risks associated with such activities. The Programs and other activities promoted by the Services may pose risks even to those who are currently in good health.You expressly agree that your activities carry certain inherent and significant risks of property damage, bodily injury, or death and that you voluntarily assume all known and unknown risks associated with these activities.Except as otherwise set out in these Terms, and to the maximum extent permitted by applicable law, we are not responsible or liable, either directly or indirectly, for any injury, illness, or damages sustained from your use of, or inability to use, any Services or features of the Services, including any Content or activities you access or learn about through our Services even if caused in whole or part by the action, inaction or negligence of Schnucks or others.
   2. Disclaimer Regarding Accuracy and Reliance on Content
      We make no representations or warranties as to the accuracy, reliability, completeness or timeliness of any Content available through the Services, and we make no commitment to update such Content.All information is provided “as is” without any representation, warranty or condition as to its accuracy or reliability.In particular, Schnucks Healthier Habits food database (“Food Database”) contains a combination of nutritional information entered by Schnucks and third parties. Please be advised that nutritional information in the Food Database has not been reviewed by persons with the expertise required to provide you with complete, accurate, or reliable information. Schnucks does not (i) guarantee the accuracy, completeness, or usefulness of any nutritional information or ingredients in the Food Database; or (ii) adopt, endorse or accept responsibility for the accuracy or reliability of any such nutritional information. To the extent permitted by applicable law, under no circumstances will Schnucks be responsible for any loss or damage resulting from your reliance on nutritional information. You are solely responsible for ensuring any nutritional information in the Food Database is accurate, complete and useful.Any alleged inaccuracy or alleged inaccuracies concerning any nutritional information provided by Schnucks will not under any circumstances be considered by you to be deceptive, fraudulent or an intentional misrepresentation.
   3. Not Medical Advice
      Any and all services provided by, in and/or through the Services (including but not limited to Content) are for informational purposes only. Schnucks is not a medical professional, and Schnucks does not provide medical services or render medical advice. Nothing contained in the Services should be construed as such advice or diagnosis. The information and reports generated by us should not be interpreted as a substitute for physician consultation, evaluation, or treatment, and the information made available on or through the Services should not be relied upon when making medical decisions, or to diagnose or treat a health condition or illness. YOUR USE OF THE SERVICES DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND SCHNUCKS.You should seek the advice of a physician or a medical professional with any questions you may have regarding your health before beginning any dietary programs or plans or any other wellness activities or plans that may be referenced, discussed or offered under the Services. If you are being treated for a health condition or illness, taking prescription medication or following a therapeutic diet to treat a disease, you should consult with your physician before using the Services. You represent to us (which representation shall be deemed to be made each time you use the Services), that you are not using the Services or participating in any of the activities offered by the Services for purpose of seeking medical attention. You further agree that, before using the Services, you will consult your physician, particularly if you are at risk for problems resulting from changes in your diet. If any information you receive or obtain from using the Services is inconsistent with the medical advice from your physician, you should follow the advice of your physician.
4. Modifications to the Terms
   As the Services grow and improve, we might have to make changes to these Terms.
   1. Updates to these Terms
      We reserve the right to modify these Terms by (i) posting revised Terms on and/or through the Services, and/or (ii) providing advance notice to you of material changes to the Terms, generally via email where practicable, and otherwise through the Services (such as through a notification on the home page of the Healthier Habits website or in-app). Modifications will not apply retroactively unless required by law.We may sometimes ask you to review and to explicitly agree to or reject a revised version of the Terms. In such cases, modifications will be effective at the time of your agreement to the modified version of the Terms. If you do not agree at that time, you are not permitted to use the Services. In cases where we do not ask for your explicit agreement to a modified version of the Terms, the modified version of the Terms will become effective as of the date specified in the Terms. Your choice to maintain an account, access or use the Services (regardless of whether you create an account with us) following that date constitutes your acceptance of the terms and conditions of the Terms as modified. If you do not agree to the modifications, you are not permitted to use, and should discontinue your use of, the Services.
5. No Warranties
   EXCEPT WHERE PROHIBITED BY LAW, SCHNUCKS EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND GUARANTEES OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT TO THE FULLEST EXTENT PERMISSIBLE UNDER THE LAW. THE SERVICES AND ALL CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS BASIS. Without limiting the foregoing, you understand that, to the maximum extent permitted by applicable law, we make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness, availability, or reliability of any of the Services or any Content. To the maximum extent permitted by applicable law, we do not warrant that (i) the Services will meet your requirements or provide specific results, (ii) the operation of the Services will be uninterrupted, virus- or error-free or free from other harmful elements or (iii) errors will be corrected. Any oral or written advice provided by our agents or us does not and will not create any warranty. To the maximum extent permitted by applicable law, we also make no representations or warranties of any kind with respect to any Content. No advice or information, whether oral or written, obtained from other users or through the Services, will create any warranty not expressly made herein. You therefore expressly acknowledge and agree that use of the Services is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you.
6. Limitation of Liability
   We are building the best Services we can for you but we can’t promise they will be perfect. We’re not liable for various things that could go wrong as a result of your use of the Services.To the maximum extent permitted by applicable law, under no circumstances (including, without limitation, negligence) shall Schnucks, its subsidiaries, affiliated companies or partners be liable to you or any third party for (a) any indirect, incidental, special, reliance, exemplary, punitive, or consequential damages of any kind whatsoever; (b) loss of profits, revenue, data, use, goodwill, or other intangible losses; (c) damages relating to your access to, use of, or inability to access or use the Services; (d) damages relating to any conduct or Content of any third party or user of the Services, including without limitation, defamatory, offensive or illegal conduct or content; and/or (e) damages in any manner relating to any third-party content or third-party products accessed or used via the Services. To the maximum extent permitted by applicable law, this limitation applies to all claims, whether based on warranty, contract, tort, or any other legal theory, whether or not Schnucks has been informed of the possibility of such damage, and further where a remedy set forth herein is found to have failed its essential purpose. To the maximum extent permitted by applicable law, the total liability of Schnucks, for any claim under these Terms, including for any implied warranties, is limited to five hundred dollars (US $500.00).In particular, to the extent permitted by applicable law, we are not liable for any claims arising out of (a) your use of the Services, (b) the use, disclosure, display, or maintenance of a user’s Personal Data, (c) any other interactions with us or any other users of the Services, even if we have been advised of the possibility of such damages, or (d) other Content, information, services or goods received through or advertised on the Services or received through any links provided with the Services.To the extent permitted by applicable law, you acknowledge and agree that we offer the Services in reliance upon the warranty disclaimers, releases, and limitations of liability set forth in the Terms, that these warranty disclaimers, releases, and limitations of liability reflect a reasonable and fair allocation of risk between you and form an essential basis of the bargain between you and us. We would not be able to provide the Services to you on an economically reasonable basis without these warranty disclaimers, releases, and limitations of liability.
7. Indemnification
   To the maximum extent permitted by applicable law, you agree to indemnify and hold Schnucks, its affiliates and partners harmless from any claim or demand, including reasonable accounting and attorneys’ fees, made by any third party due to or arising out of (a) your use of the Services, (b) your activities in connection with the Services, (c) your connection to the Services or (d) your violation of these Terms. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us under the Terms, and you agree to cooperate with our defense of these claims.
8. Governing Law
   These Terms shall be governed by and construed in accordance with the laws of the state of Missouri and controlling U.S. federal law as applicable, without regard to its conflict of law principles.
9. Disputes and Arbitration, Class Action Waiver, Jurisdiction and Venue
   Arbitration Agreement
   YOU AND SCHNUCKS AGREE TO SUBMIT ANY AND ALL DISPUTES ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICE (A “DISPUTE”) TO BINDING ARBITRATION. To the maximum extent permitted by applicable law, you and Schnucks agree that any disputes arising out of or related to your use of the Services (a “Dispute”) will be resolved by binding arbitration pursuant to the Federal Arbitration Act (Title 9 of the United States Code), which shall govern the interpretation and enforcement of this arbitration agreement (“Arbitration Agreement”). In arbitration, Disputes are resolved by a neutral arbitrator instead of a judge or jury, discovery is more limited than in court, and the arbitrator’s decision is subject to limited review by courts. The arbitrator can award on an individual basis the same damages and relief as a court, including monetary damages, injunctive relief, and declaratory relief. Judgment on the arbitrator’s award may be entered in any court having jurisdiction thereof. Such dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Except where prohibited, you and we agree to submit to the personal and exclusive arbitration of Disputes relating to your general use of the Services under the Consumer Arbitration Rules of the American Arbitration Association. Please visit www.adr.org for more information about arbitration.Any arbitration between you and us, to the extent necessary, will be conducted remotely as provided below.The arbitration will be conducted in English. A single independent and impartial arbitrator will be appointed pursuant to the rules of the American Arbitration Association. The arbitrator will decide all issues relating to the enforceability, interpretation, scope, and application of this Arbitration Agreement (including “gateway” issues of arbitrability, whether the Arbitration Agreement is unconscionable or illusory and any defense to arbitration), and these Terms, except that a court may resolve any question regarding the validity or enforceability of the class action waiver set forth in this Arbitration Agreement. The term “Dispute” and the requirement to arbitrate will be broadly interpreted.Both you and we agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens for everyone involved:the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration;the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; andany judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement describing the reasons for the disposition of any claim.You also acknowledge and understand that, with respect to any dispute with us arising out of or relating to your choice to maintain an account, access or use the Services:You are giving up your right to have a trial by jury;You are giving up your right to serve as a representative, as a private attorney general, or in any other representative capacity, or to participate as a member of a class of claimants, in any lawsuit involving any such dispute; andYou must file any claim within one (1) year after such claim arose or it is forever barred.Payment of all filing, administration and arbitrator fees will be governed by the American Arbitration Association’s rules.If this arbitration provision is found to be null and void, then all disputes arising under the Terms between us will be subject to the jurisdiction of the state and federal courts located in the state of Missouri, and you and we hereby submit to the personal jurisdiction and venue of these courts. You and Schnucks agree that if for any reason a Dispute proceeds in court rather than arbitration: (1) you and Schnucks waive any right to a jury trial; (2) the Dispute will proceed solely on an individual, non-class, non-representative basis; and (3) neither you nor Schnucks may be a class representative or class member or otherwise participate in any class, representative, consolidated, or private attorney general proceeding.This agreement to arbitrate will not preclude you or Schnucks from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude you or Schnucks from (i) applying to the appropriate court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, or (ii) seeking relief in any state or federal court for disputes related to a violation or possible violation of Schnucks’ intellectual property rights.
10. Survival
    If our relationship or these Terms terminate, it will not limit any of our other rights or remedies, and any provision of these Terms that must survive in order to give proper effect to the intent and purpose of these Terms will survive termination including without limitation Sections 2 (Ownership and Use of Content), 3 (Fitness and Wellness Activities and Dietary Guidance), 5 (No Warranties), 6 (Limitations of Liability), 7 (Indemnification), 9 (Disputes and Arbitration, Jurisdiction and Venue), and 10 (Survival).
11. Miscellaneous
    You agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of the Terms or your use of the Services. The Terms constitute the entire agreement between you and us with respect to your use of the Services.Our failure to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.You may not assign, delegate, or otherwise transfer your account or your obligations under these Terms without our prior written consent. We have the right, in our sole discretion, to transfer or assign all or any part of our rights under these Terms and will have the right to delegate or use third-party contractors to fulfill our duties and obligations under these Terms and in connection with the Services.Our notice to you via email, regular mail, or notices or links displayed in connection with the Services constitutes acceptable notice to you under the Terms. We are not responsible for your failure to receive notice if email is quarantined by your email security system (e.g., “junk” or “spam” folder) or if you fail to update your email address. Notice will be considered received forty-eight hours after it is sent if transmitted via email or regular mail. In the event that notice is provided via links displayed in connection with the Services, then it will be considered received twenty-four hours after it is first displayed.In the event of any conflict between these Terms and Conditions and the terms and conditions of Schnucks’ Reward Program Terms and Conditions (“Reward Terms and Conditions”), the Reward Terms and Conditions shall control.