PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST BEDDR ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
No Medical Advice is Provided. As an express condition of your use of the Software and/or the Product, you acknowledge and agree that (a) Beddr does not offer medical advice or diagnoses, or engage in the practice of medicine; (b) the Product, Software and related services are not intended to be a substitute for professional medical advice, diagnosis, or treatment and are offered solely for informational purposes only. Always seek the advice of your physician or other qualified health provider with any questions regarding your medical condition or the use (or frequency) of any medication or device. Never disregard professional medical advice or delay in seeking it because of something you have read or seen in connection with the Product, Software or related services. YOU ACKNOWLEDGE AND AGREE THAT: (I) BEDDR IS NOT A HIPAA COVERED ENTITY OR MEDICAL SERVICES PROVIDER; (II) YOU ARE SOLELY RESPONSIBLE FOR ANY DECISIONS OR ACTIONS YOU TAKE BASED ON THE INFORMATION AND MATERIALS AVAILABLE THROUGH THE PRODUCT, SOFTWARE AND RELATED SERVICES; AND (III) THAT RELIANCE ON ANY INFORMATION PROVIDED BY BEDDR OR INFORMATION GENERATED OR DERIVED FROM THE PRODUCT OR RELATED SERVICES IS SOLELY AT YOUR OWN RISK. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY.
Subject to the terms and conditions of this Agreement, Beddr grants you a non-exclusive, non-transferable, non-assignable license (without right of sublicense) to install and use the Software solely in machine executable object code form, solely in conjunction with your use of the Product, and solely for your personal use. You may make a reasonable number of copies for your personal use for use on devices which you own or control.
You may not use, copy, modify, or transfer the Software, in whole or in part, except as expressly provided in this Agreement. Updates to Software are governed by this Agreement and are part of the Software unless such updates are accompanied by a separate license, in which case the terms of that license will govern. No other licenses are granted to you except as expressly set forth in this Agreement. You may not reverse engineer, disassemble, decompile, modify or translate the Software, or otherwise attempt to derive the source code of the Software, or authorize any third party to do any of the foregoing. Any attempt to transfer any of the rights, duties or obligations hereunder is void. You may not rent, lease, loan, resell for profit, sublicense or distribute the Software, or any part thereof. Components of the Software may not be used separately.
Use and Storage; Wireless Charges
You acknowledge that Beddr may establish general practices and limits concerning use your account, including without limitation the maximum period of time that data or other content will be retained and the maximum storage space that will be allotted on your behalf. You acknowledge that Beddr reserves the right to terminate accounts at any time. You further acknowledge that Beddr reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice, and without liability to you. For Software that is available via a mobile device, to the extent you use wireless carrier data access, your wireless services carrier’s standard charges, data rates and other fees may apply.
The Software is licensed, and not sold, to you under this Agreement. You have no ownership rights in the Software. Beddr, and its licensors retain all right, title, and interest in and to all copies of the Software.
App Store Terms; Privacy
Representations and Warranties
You agree, represent and warrant to Beddr that: (i) you will only use the Software and Product in accordance with the terms of this Agreement and in compliance with printed instructions and the safety guidelines and warnings as provided by Beddr (the “Safety Information”) and in conformance with any instructions from your doctor; (ii) you are not subject to export control restrictions established by laws and regulations of the United States of America and you shall comply with all export and import laws, rules, regulations and restrictions of the jurisdictions in which you reside; and (iii) you have all necessary rights to provide Data to Beddr and that use of Data as contemplated herein does not violate any third party rights.
Indemnity and Release
You agree to release, indemnify and hold Beddr and its officers, employees, directors, agents, successors and assigns (collectively, “Beddr Parties”) harmless from any from any and all losses, liabilities, damages, fines, penalties, expenses, including reasonable attorneys’ fees and costs, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Product and Software, your violation of this Agreement, your violation of any rights of another, or your violation of applicable law. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Disclaimer of Warranty
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE PRODUCT AND THE SOFTWARE IS AT YOUR SOLE RISK. EXCEPT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR THE LIMITED PRODUCT WARRANTY PROVIDED WITH THE PRODUCT, THE SOFTWARE AND PRODUCT ARE PROVIDED "AS IS", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND BEDDR AND ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE AND THE PRODUCT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON INFRINGEMENT. BEDDR DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE PRODUCT AND/OR SOFTWARE, THAT THE FUNCTIONS CONTAINED IN THE PRODUCT AND/OR SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE PRODUCT AND/OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE AND/OR PRODUCT WILL BE CORRECTED.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) IN NO EVENT SHALL BEDDR, ITS SUPPLIERS OR BEDDR PARTIES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION OR DATA, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY, NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER, ARISING OUT OF THIS AGREEMENT OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PRODUCT EVEN IF ANY OF THEM HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) In no event shall Beddr's AND BEDDR PARTIES’ AGGREGATE liability to you for all damages exceed the amount of fifty dollars ($50.00).
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
This Dispute Resolution by Binding Arbitration section is referred to in this Agreement as the “Arbitration Agreement.”
If you have a dispute regarding this Agreement, you must first provide us with written notice of the dispute via mail or overnight courier to Beddr’s address noted below, with such notice to include your name and contact information, a written explanation of the claim including all legal claims you intend to assert and each set of facts which support each of such claims, and the relief you’re requesting. You agree that if any of your claims are omitted from that notice, you forever waive those claims and covenant not to assert them in any action or proceeding related to this Agreement. We will attempt to resolve the dispute with you without further court action or arbitration.
All disputes, whether based on circumstances in the past or future, which cannot be resolved as provided above which arise out of or relate to this Agreement (including but not limited to this “Dispute Resolution” Section) shall be resolved by binding arbitration before a sole arbitrator, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply. Arbitration does not involve a court or a judge; instead the arbitrator follows this Agreement and applicable law and awards relief accordingly.
You or Beddr may initiate arbitration through JAMS and the JAMS JA streamlined arbitration rules and procedures then in force (see www.jamsadr.com for additional information), or may pursue a dispute in court in San Mateo County, California, which you hereby consent to be the exclusive jurisdiction and venue for such dispute, and not by arbitration if the dispute qualifies for small claims court or you opt out of arbitration, as provided below. The arbitration shall be commenced as an individual arbitration, and not in a class, representative, consolidated or action involving multiple plaintiffs. You shall not join or consolidate claims or arbitrate or otherwise participate in any claim as a class representative, class member or in a private attorney general capacity. Any arbitration will be confidential. You or Beddr may initiate arbitration in either San Mateo County, California, or the federal judicial district where you reside. The arbitrator's decision shall be in writing and shall comply with all terms and conditions in the then current Terms of Service. The decision and award rendered shall be final and binding on both parties. The parties acknowledge and agree that this Agreement and any award rendered pursuant hereto shall be governed by the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Judgment on the award may be entered in any court of competent jurisdiction. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
YOU MAY OPT OUT OF ARBITRATION BY PROVIDING WRITTEN NOTICE TO BEDDR AT BEDDR’S ADDRESS NOTED BELOW, TO THE ATTENTION OF “CLASS OPT OUT COORDINATOR” TO BE RECEIVED NO LATER THAN THIRTY (30) CALENDAR DAYS FROM THE DATE OF YOUR ORIGINAL ACCEPTANCE OF THIS AGREEMENT WITH THIS PROVISION INCLUDED. IF YOU DO NOT SEND NOTICE AS REQUIRED IN THE FOREGOING SENTENCE, YOU WILL NOT HAVE OPTED OUT OF ARBITRATION. IF YOU OPT OUT OF ARBITRATION AS PROVIDED ABOVE, THE OTHER PROVISIONS OF THIS AGREEMENT SHALL STILL APPLY.
897 Independence Ave, Ste 3A
Mountain View, CA 94043
Use of the Services is not authorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation, this section.
This Agreement is effective until it is terminated. You may terminate this Agreement at any time by destroying or deleting all copies of the Software and related documentation in your possession or under your control. This Agreement will automatically terminate if you violate any of the terms of this Agreement or if you stop using the Software or Product. For any reason or no reason, Beddr may (i) terminate this Agreement at any time; and/or (ii) suspend your access to your account, in each case for any reason with or without notice and without liability to you. Upon termination of this Agreement, all license rights granted to you shall immediately terminate. However, all other provisions of this Agreement shall survive such termination.
U.S. Government End Users
The Software and related documentation are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Software and related documentation are being licensed to U.S. Government end users (a) only as “Commercial Items,” and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
This Agreement sets forth the entire understanding and complete and exclusive statement of the agreement between Beddr and you and supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. If you elect to provide any feedback provided by you to Beddr with respect to the Software, Product and/or any of their features, you hereby assign all right, title and interest in and to such feedback, including all intellectual property rights therein, to Beddr, and you acknowledge that you will not be entitled to any compensation, credit, attribution, or ownership interest in or to any product, software or service that incorporates or is based in whole or in part on your suggestions. This Agreement is governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Beddr agree to submit to the personal and exclusive jurisdiction of the state courts located in and for San Mateo County, California. The failure of Beddr to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement 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 this Agreement remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Product or Software or related to this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Agreement without the prior written consent of Beddr, but Beddr may assign or transfer this Agreement in whole or in part, without restriction. Beddr Parties shall not have any liability to you for any or be deemed to be in default, for any delay or failure to perform any act under this Agreement resulting, directly or indirectly, from acts of God, civil or military authority, acts of public enemy, terrorism, war, accidents, fires, explosions, earthquake, flood, failure of transportation, strikes or other work stoppages, or any other cause beyond its reasonable control. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The parties hereto confirm that it is their wish that this Agreement have been and shall be written in the English language only. Les parties ci-dessus confirment leur désir que cet accord soient rédigés en langue anglaise.
© 2019 Hancock Medical, Inc. All rights reserved
LB 01274 Rev A
Revision Date: March 18, 2019