Last Updated on: April 21, 2023
PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS”) CAREFULLY BEFORE USING THE HELLO HEART WEBSITE OR MOBILE APPLICATION. YOU ARE ENTERING INTO A LEGALLY BINDING AGREEMENT.
Hello Heart Inc., a Delaware Corporation with offices at 545 Middlefield Road, Menlo Park, CA, USA (“Hello Doctor” or “Hello Heart”, “us”, “our”, “we”) provides a website (the “Site”) and a mobile application that connects to Equipment (defined below) and helps users understand their heart health and make choices that, as part of a healthy lifestyle, may reduce the risks of high blood pressure, high cholesterol, and heart disease (the “Application”; and, with the Site and Equipment, collectively the “Service”). These Terms govern your access and use of the Service and apply to all users of the Service. “You” or “your” means a user of the Service. You agree that by registering for, enrolling in, accessing, or using the Service, you are entering into a legally binding agreement with us and that you have read, understand, and agree to be bound by these Terms, will follow all applicable laws and certify that you are authorized to accept these Terms. Your agreement to these Terms commences on the date when you agree to them and remains in full force and effect while you use the Service, until terminated in accordance with the section below titled “Termination of Account”. We may revise and update these Terms in our sole discretion at any time. Such revisions are binding upon your continued use of the Service as of and following the date of the change. If we make any material changes, and you have registered for an account, we will send an e-mail to you at your provided email address. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT REGISTER FOR, ACCESS, OR USE THE SERVICE.
PLEASE BE AWARE THAT THE SECTION OF THESE TERMS TITLED “ARBITRATION AGREEMENT” CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SERVICE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
PLEASE BE AWARE THAT THE SECTION OF THIS AGREEMENT TITLED “HELLO HEART COMMUNICATIONS” CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING E-MAILS, TEXT MESSAGES, CALLS AND PUSH NOTIFICATIONS.
By agreeing to these Terms, you represent and warrant that you meet the following eligibility criteria:
If you do not meet the eligibility requirements above, you may not register for or use the Services.
The Service and all content available therein are protected by copyright law. Subject to these Terms, we grant you a license to access and reproduce the Service solely to use the Service for your personal purposes. We also grant you a non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal purposes. With respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. With respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.
The Services are evolving to help us better assist you on your heart health journey. As such we may require you to accept updates to the Service. You acknowledge and agree that we may update the Service with or without notifying you and that you may need to update third-party software from time to time in order to use the Service.
The rights and licenses granted to you in these Terms are subject to the following restrictions. You may not provide access to or use the Service or content therein for the benefit of third parties or make commercial use of the Service or related content. Use of and access to the Service is void where prohibited. You shall not (a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Service; (b) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Service except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any the Service (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (d) remove, destroy, frame or utilize framing techniques to enclose any copyright notices, trademark, logo, or other proprietary markings contained on or in the Service; or (e) use any metatags or other “hidden text” using our name or trademarks. The Services may not be used for any purpose that is in competition with or adverse to Hello Heart. Except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to the Service shall be subject to the Terms. We reserve all rights not granted in these Terms. Any unauthorized use of the Service terminates the licenses granted in these Terms.
By accessing and using the Service, you represent and warrant that (a) any and all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Service will comply with and does not violate any applicable law, regulation, order, or guideline. Hello Heart does not practice medicine or any other health profession and our Service does not replace medical care nor is intended to diagnose or treat any disease. All information provided is for general education purposes only. Seek the advice of your physician or other qualified healthcare provider with any questions you may have regarding a medical condition or treatment. Never disregard the advice of your healthcare professional or delay medical treatment due to information you received from this Application. If you are experiencing a medical emergency call “911” immediately. PERSONS USING THIS APPLICATION ASSUME FULL RESPONSIBILITY FOR THE USE OF THE SERVICE AND AGREE THAT HELLO HEART IS NOT RESPONSIBLE OR LIABLE FOR ANY CLAIM, LOSS, OR DAMAGE ARISING FROM THE USE OF THE SERVICE. HELLO HEART DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC DRUGS, TESTS, PHYSICIANS, PRODUCTS, PROCEDURES, OR OPINIONS. YOUR RELIANCE UPON THE INFORMATION OBTAINED OR USED BY YOU IS SOLELY AT YOUR OWN RISK. The Application is not for use by healthcare providers or for any other commercial or non-personal purpose. The information provided via the Service may not always be accurate, up-to-date, or relevant to you and should be viewed as informational only.
You agree that your use of the Services shall conform to these Terms. You shall not (and shall not permit any third party) either (a) take any action in relation to the Service that, or (b) make available any content on or through the Service that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without our prior written consent; (v) impersonates any person or entity, including any employee or representative of Hello Heart; (vi) interferes with or attempts to interfere with the proper functioning of the Service or uses the Service in any way not expressly permitted by these Terms; or (vii) attempts to engage in or engages in, any potentially harmful acts that are directed against the Service, including but not limited to violating or attempting to violate any security features of the Service, introducing viruses, worms, or similar harmful code into the Service, or interfering or attempting to interfere with use of the Service by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Service.
Before you can access the Service through the Application, you will need to create a Hello Heart account. Your account allows you to use the Service, subject to these Terms and our Privacy Policy and Notice of Privacy Practices (each of which are hereby incorporated by reference). We reserve the right to refuse to allow a user to open or maintain an account for any legal reason in our sole discretion. To create an account, you must provide us with your name, e-mail address, employer enrollment code, and other data as prompted by the registration process (the “Registration Data”). You agree to provide true, accurate, current and complete Registration Data and to maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Your account will be protected by a password of your choosing. You agree not to reveal your password to anyone and to notify us immediately of any unauthorized use of your account or any other breach of security. Hello Heart will not ask you to reveal your password, only to enter it upon signing in. If you forget your password, you can request to have a temporary password sent to your registered e-mail address. You are fully and solely responsible for the security of your computer system and all activity on your account, even if such activities were not committed by you. Hello Heart will not be liable for any losses or damage arising from unauthorized use of your account or password, and you agree to indemnify and hold Hello Heart harmless for any improper or illegal use of your account, including by someone to whom you have given permission to use your account. We do not police for, and cannot guarantee that we will learn of or prevent, any inappropriate use of the Service. You acknowledge and agree that you shall have no ownership or other property interest in your account or username, and you further acknowledge and agree that all rights in and to your account and username are and shall forever be owned by and inure to the benefit of Hello Heart. We reserve the right to remove or reclaim any usernames or to suspend any account at any time and for any reason.
Once you register to use the Service, Hello Heart may provide you with one or more pieces of equipment (“Equipment”) to be used by you in connection with the Application as part of the Service. Title and risk of loss in the Equipment will pass to you upon delivery of the Equipment. By accepting delivery of Equipment, you (i) accept and assume the risk of loss, damage and destruction, as well as the obligation to properly dispose of Equipment; and (ii) agree to only use the Equipment for your personal use and not to resell, rent or lease the Equipment. You acknowledge that you must keep the Equipment in good working order and repair in order for the Equipment to properly interact with the Application. Once delivered, Hello Heart may, but is under no obligation to, accept return of the Equipment for any reason. The Equipment is subject to the manufacturers’ standard warranties (if any) and HELLO HEART DISCLAIMS ANY AND ALL WARRANTIES, EXPLICIT OR IMPLIED, WITH REGARDS TO THE EQUIPMENT. The terms and conditions that apply to the Equipment in these Terms, will survive the expiration or termination of these Terms, or your account, for any reason.
Internet connectivity is required for access to and use of the Service. To access the Service by means of a cellular data connection on a portable device, you will need a data access plan from your wireless carrier. In order to access the Service via WiFi or Internet connection, you will need a compatible device, software, browser and Internet access. Check with your provider to learn if any fees apply. You are solely responsible for enabling Internet connectivity and any fees or costs you incur to access the Service through any wireless or other communication service.
We don’t claim ownership of the content you provide on the Service. Your content remains your own and you have rights to your data as described in the Privacy Policy. We also don’t control, verify, or endorse the content that you and others make available on the Service. You agree that you, and not Hello Heart, are entirely responsible for all content that you upload, post, e-mail, transmit or otherwise make available to the Service, and that other users, and not Hello Heart, are similarly responsible for all content that they make available through the Service. You hereby grant us a fully paid-up, royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display your content (in whole or in part) for the purposes of operating and providing the Service to you and to our other users.
Hello Heart may use de-identified and aggregated information and extract statistical data from your content or any other information provided to the Service in the manner described in our Privacy Policy. Such de-identified data, aggregate information, usage data, and statistical data is owned by Hello Heart. We may share such data and information needed to administer the Service with benefits providers. If you share information on the Service in a way that infringes others’ rights, including privacy rights, you’re breaching these Terms. You represent and warrant that you have all the rights necessary for you to grant all rights in this section (Your Content and Sharing Records) and that all use of the content and information described in this section doesn’t violate any law.
We may remove your information or content from the Service at any time for any or no reason. You’re responsible for backing up the data that you store on the Service. We recommend that you keep your original documents for backup. If your account is terminated by you or us, you hereby authorize us to permanently delete your data from our servers. You agree that we have no obligation to return data to you after the Service is cancelled. If data is stored with an expiration date, you agree that we may also delete the data as of that date. Deleted data may be irretrievable.
Except with respect to your content, between you and us, you agree that we own all rights, title and interest in the Service (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and software). “Hello Heart” and all related graphics, logos, service marks and trade names used on or in connection with the Service are our trademarks and may not be used by you or any third-party without our permission. Other trademarks, service marks and trade names that may appear on or in the Service are the property of their respective owners.
Between you and us, you own any ideas, suggestions, documents, and/or proposals submitted to us through our chat function, email, or suggestion, feedback, or similar pages (“Feedback”). You agree that submission of Feedback is at your own risk and that we have no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to us a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Service, our business, or any other products or services that we may offer. You acknowledge and agree that you will gain no rights in any such products or services by virtue of having disclosed Feedback.
You agree that Hello Heart may for any legal reason, in its sole discretion and without notice, terminate your account and remove from the Service any content associated with your account. Grounds for such termination may include, but are not limited to, the following: (i) you are ineligible to use the Services, (ii) extended periods of inactivity associated with your account, (iii) your violation of the letter or spirit of these Terms, (iv) fraudulent, harassing or abusive behavior associated with your account, (v) behavior associated with you or your account that is harmful to other users, third parties, or the business interests of Hello Heart or the integrity of its systems, or (vi) behavior associated with you or your account that violates the privacy of other users or third parties. If Hello Heart believes, in its sole discretion, that a violation of these Terms or any illegal or inappropriate behavior has occurred, we may take any other corrective action we deem appropriate. We reserve the right to investigate suspected violations of these Terms or illegal or inappropriate behavior on the Service. We will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or behavior of anyone believed to have violated these Terms or to have engaged in illegal behavior on the Service.
You may request termination of your Hello Heart account at any time and for any reason by sending an email to contact@helloheart.com.
Any suspension, termination, or cancellation shall not affect your obligations to Hello Heart and its licensors under these Terms which by their sense and context are intended to survive such suspension, termination, or cancellation, including but not limited to ownership, indemnification, disclaimers, and limitation of liability. Termination of your account includes removal of access to the Service and barring of further use of the Service. If your account is terminated, you may not enroll in the Service again without express permission from us. Termination also includes deletion of your password and all information, files, and content associated with your account. Hello Heart will not have any liability whatsoever to you for any suspension or termination, including for deletion of your content or information.
You explicitly consent to the use, access, disclosure, transfer and preservation of your Personal Information (as defined in Hello Heart’s Privacy Policy) by Hello Heart in connection with providing the Service, including storing, processing, and disclosing the data in accordance with these Terms, Hello Heart’s Privacy Policy, and Notice of Privacy Practices.
As described in more detail below, by entering into this Agreement or using the Service, you agree to receive communications from us, including via email, text message, calls, and push notifications, about your account, breach notifications, and your progress at the email address, phone number, or device you provided to us. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Be aware that that unencrypted emails are not completely secure and some risk exists that such emails may be intercepted or read by third parties.
By providing your email to Hello Heart, you agree to receive email communications about your account, and your progress which may include, but are not limited to: healthcare messages (e.g. confirmations and reminders to use Hello Heart for heart health purposes, home healthcare instructions, wellness checkups, etc.) as well as updates to the Services or these Terms.
By providing your phone number to Hello Heart, you agree to receive communications about your order and/or account status from Hello Heart, such as communications regarding account registration, program activation, and verification.
By checking the acceptance box, you agree to receive reminders about Hello Heart, communications concerning health awareness, articles, and updates to the Service that may be of interest to you as well as other communications pertaining to the services provided by Hello Heart. Hello Heart may send up to ten (10) text messages a week. You do not have to agree in order to use our service. If you wish to opt out of such optional calls or texts, you can reply STOP to the text message or send a text message stating “STOP” to (650) 590-1099 from the mobile device receiving the messages. After opting out of optional messages and calls, you will still receive important transactional account, order, or health messages. Standard text messaging charges from your cell phone carrier may apply to all text messages we send.
If your Personal Information is altered, destroyed, acquired, accessed, used, or disclosed in a manner not outlined by these Terms that compromises the privacy or security of the Personal Information, you agree to receive notification of this breach from Hello Heart or its delegate via electronic mail in lieu of first-class mail. The notification may be provided in one or more electronic mailings as information becomes available. If you do not agree to receive breach information via electronic mail, you must contact Hello Heart by email at contact@helloheart.com and withdraw your consent. You also permit Hello Heart, to the extent your phone number is available and current, to call you and notify or update you about the breach of your Personal Information prior to and after sending electronic mail notification. To the extent it is required by applicable law, Hello Heart may report the breach of information to governmental authorities or other required third parties. To the extent it is required by applicable law, Hello Heart may report the breach of information to governmental authorities or other required third parties.
You agree that in your use of the Service you will not act in any way or make available any content that: (a) restricts or inhibits use of the Service; (b) solicits another person’s password or other Personal Information under false pretenses; (c) is or that you reasonably believe or should reasonably believe to be illegal, fraudulent, or unauthorized, or in furtherance of any illegal, counterfeiting, fraudulent, pirating, unauthorized, or violent activity, or that involves or you reasonably believe or should reasonably believe to involve any stolen, illegal, counterfeit, fraudulent, pirated, or unauthorized material; (d) does not comply with all applicable laws, rules, or regulations, including obtaining all necessary permits, licenses, registrations, etc. The software and technology underlying the Application is the property of Hello Heart, and you may not harvest, collect, or mine information about other users of the Service or use or access another user’s account or password without permission. Hello Heart can only be used for personal purposes and can’t be used by corporations for commercial use without a written consent from Hello Heart.
Hello Heart shall use reasonable commercial efforts to maintain the availability of the Service, but does not guarantee any specific level of availability of Service. Hello Heart will not be liable to you as a result of temporary service interruptions. You acknowledge that Hello Heart may, in its sole discretion and at any time, modify or discontinue providing Services or any part thereof without notice, and in such event, you will not be able to access your content or information that you have uploaded to the Service.
You expressly understand and agree that, to the extent permitted by applicable law, your use of the Service, including the content provided therein and the Equipment, is at your sole discretion and risk. The information obtained through the Service is for informational purposes only and should NOT be used as a substitute for the advice of an appropriately qualified and licensed physician or other healthcare provider. Seek the advice of your physician or other qualified healthcare provider with any questions you may have regarding a medical condition or treatment. If you are experiencing a medical emergency call “911” immediately. The Service, including the content provided therein and the Equipment, are provided on an AS IS and AS AVAILABLE basis with all faults and without warranties of any kind from Hello Heart. HELLO HEART EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE APPLICATION, THE SITE, THE EQUIPMENT, AND ANY CONTENT, GOODS OR SERVICES MADE AVAILABLE THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. HELLO HEART DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, (I) REGARDING THE SECURITY, ACCURACY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE SERVICE AND EQUIPMENT; (II) THAT THE SERVICE AND EQUIPMENT WILL MEET YOUR REQUIREMENTS, BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS WILL BE CORRECTED; AND (III) REGARDING THE PERFORMANCE OF OR ACCURACY, QUALITY, CURRENCY, COMPLETENESS RELEVANCY OR USEFULNESS OF ANY INFORMATION PROVIDED BY THE SERVICE AND EQUIPMENT. NO CONTENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. HELLO HEART IS NOT RESPONSIBLE FOR ANY INCORRECT OR INACCURATE ADVICE OR CONSULTATION PROVIDED TO YOU BY USING THE SERVICE, ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM THE USE OF THE SERVICE, THE CONTENT THEREIN, OR THE CONDUCT OF ANY USERS OF THE SERVICE, OR ANY DAMAGE TO YOUR COMPUTER OR MOBILE DEVICE INCLUDING LOSS OF DATA. YOU ACKNOWLEDGE AND AGREE THAT WE ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD US LIABLE, FOR THE CONDUCT OR CONTENT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL, LINKED SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. We reserve the right to correct any errors, inaccuracies or omissions and to change or update Hello Heart content information at any time without prior notice.
IN NO EVENT SHALL HELLO HEART OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS BE LIABLE TO YOU FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICE, APPLICATION AND EQUIPMENT, WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT HELLO HEART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. IN NO EVENT SHALL HELLO HEART’S CUMULATIVE LIABILITY TO YOU EXCEED AMOUNTS PAID BY YOU TO HELLO HEART FOR USE OF THE SERVICE, APPLICATION AND EQUIPMENT, OR, IF YOU HAVE NOT MADE ANY PAYMENTS TO HELLO HEART FOR THE USE OF THE SERVICE, THEN FIFTY DOLLARS ($50.00).
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THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF HELLO HEART OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS FOR (i) DEATH OR PERSONAL INJURY CAUSED BY SUCH PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR FOR (ii) ANY INJURY CAUSED BY SUCH PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND US.
You agree to indemnify, defend, and hold harmless Hello Heart and its respective employees, directors, officers, subcontractors, affiliates, and agents of each (the “Indemnified Parties”), against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorneys’ fees) that arise directly or indirectly from: (a) breach of these Terms by you or anyone using your account or password; (b) your use or attempted use of (or inability to use) the Service, including the Equipment; (c) your violation of any law or regulation; (d) your infringement or violation of any right of any third party; (d) information or content you provide to or use in connection with the Service and (e) any other matter for which you are responsible hereunder or under law. You agree that your use of the Service, including the Equipment, shall be in compliance with all applicable laws, regulations and guidelines. We reserve the right, at our own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses. This provision does not require you to indemnify the Indemnified Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Service.
Please read this Arbitration Agreement carefully. It requires you to arbitrate disputes with Hello Heart and limits the manner in which you can seek relief from us.
Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Service, including any Equipment provided by us, or to any aspect of your relationship with Hello Heart, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify; and (b) you or we may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of these Terms or any prior version of these Terms.
Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent Incorporating Services, Ltd. located at 3500 South DuPont Hwy., Dover, DE 19901. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Hello Heart will pay them for you. In addition, Hello Heart will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Hello Heart. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon both you and us.
Waiver of Jury Trial. YOU AND HELLO HEART HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and we are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in the sub-section titled “Applicability of Arbitration Agreement” above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of Delaware. All other disputes, claims, or requests for relief shall be arbitrated.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: contact@helloheart.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your employee ID (if you have one), the email address you used to set up your account (if you have one), date of birth, and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Severability. Except as provided above in the subsection “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Hello Heart.
Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Hello Heart at the following address: contact@helloheart.com.
We use various third-party vendors to supply functionalities that enables us to provide you with the Service (each a “Third Party Service Provider”). By using these functionalities, you agree to be bound by the applicable Third Party Service Provider’s Privacy Policy and Terms of Service and hereby consent and authorize Hello Heart and the applicable Third Party Service Provider to share any information and instructions you provide with one or more Third Party Service Provider(s) to the minimum extent required to complete your use of that functionality. A list of our Third Party Service Providers is available at Third Party Services.
The Service may contain links to third-party websites (“Third-Party Websites”), and applications (“Third-Party Applications”). When you select a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left the Service and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Applications are not under the control of Hello Heart. We are not responsible for any Third-Party Websites or Third-Party Applications. We provide these Third-Party Websites and Third-Party Applications only as a convenience and do not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or any content, product, or service provided in connection therewith. You use all links in Third-Party Websites, and Third-Party Applications at your own risk. When you leave our Site or Application, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
You acknowledge and agree that the availability of the Application is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that these Terms are between you and Hello Heart and not with the App Store. Hello Heart, not the App Store, is solely responsible for the Service, including the Application, the content thereof, maintenance, support services, and any warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Service, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any part of the Service, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of these Terms and will have the right to enforce them.
The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
The failure of Hello Heart to exercise or enforce any right conferred upon it hereunder shall not be deemed to be a waiver of any such right, or operate to bar the exercise or performance thereof at any time or times thereafter. A waiver of any right hereunder at any given time shall not be deemed a waiver thereof for any other time.
If any provision of these Terms is held to be illegal, invalid, or unenforceable by a court of competent jurisdiction, such terms shall be interpreted and enforced to the fullest extent permitted by law. The remaining portion of these Terms not declared illegal, invalid or unenforceable shall, in any event, remain valid and effective while these Terms are in force.
A Spanish translation of these Terms is available for convenience only. Any inconsistency or conflict between the translations is unintentional and in the event of such divergence the English translation shall control.
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
These Terms shall be interpreted in accordance with the laws of the State of Delaware, USA. You agree that any excepted claims from the Arbitration Agreement or equitable action arising out of or related in any respect to these Terms shall be brought exclusively in the competent courts of the State of Delaware.
These Terms are the final, complete and exclusive agreement of the parties hereto with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
You consent to receive communications from Hello Heart in an electronic form. You agree that all terms and conditions, agreements, notices, disclosures, and other communications that Hello Heart provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. Where we require that you provide an e-mail address, you are responsible for providing your most current e-mail address and for keeping such email address up to date.
All notices required or permitted hereunder to us shall be in writing, and either delivered by certified mail, return receipt requested, or by nationally recognized overnight delivery service to the address first set forth above or by email to Hello Heart, at contact@helloheart.com. All notices required or permitted hereunder to you shall be in writing and delivered via email to the last email address which you have provided. A notice shall be effective from the date of personal delivery or upon receipt if sent by certified mail, and upon the date of sending if sent by email. In the event that the last e-mail address you provided to us is not valid, or for any reason is not capable of delivering to you any notices required or permitted by these Terms, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice.
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