End User License Agreement

DATE LAST UPDATED: November 21, 2023
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IMPORTANT — READ CAREFULLY:
THESE TERMS OF SERVICE (the "TOS" or this “AGREEMENT”) ARE A LEGAL AGREEMENT BETWEEN YOU AND HEALTH RHYTHMS, INC. AND ITS AFFILIATES (COLLECTIVELY, "HEALTHRHYTHMS") FOR THE MEASURE APPLICATION (THE “APPLICATION”), AND THE PRODUCTS, SERVICES AND FEATURES AVAILABLE THROUGH THE APPLICATION, (TOGETHER, THE "SERVICE").

ARBITRATION NOTICE:
YOU AGREE THAT DISPUTES BETWEEN YOU AND HEALTHRHYTHMS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

NO CLASS ACTION:
ANY CLAIMS BROUGHT BY YOU OR HEALTHRHYTHMS MUST BE BROUGHT IN THAT PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. NEITHER YOU NOR HEALTHRHYTHMS WILL PARTICIPATE IN A CLASS ACTION OR CLASS-WIDE ARBITRATION FOR ANY CLAIMS COVERED BY THIS AGREEMENT. YOU HEREBY WAIVE ANY AND ALL RIGHTS TO BRING ANY CLAIMS RELATED TO THIS AGREEMENT AND/OR OUR PRIVACY POLICY AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU MAY BRING CLAIMS ONLY ON YOUR OWN BEHALF. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES HEREBY AGREE THAT:  (I) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (II) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.BY AGREEING TO THESE TOS OR BY INSTALLING OR OTHERWISE USING THE SERVICE, YOU AGREE TO BE BOUND BY THESE TOS. TO THE EXTENT OF ANY CONFLICT BETWEEN THESE TOS AND ANY OTHER TERMS AND CONDITIONS OR REPRESENTATIONS YOU HAVE AGREED TO REGARDING YOUR USE OF YOUR MOBILE DEVICE OR THE SERVICE, THESE TOS WILL PREVAIL. IF YOU DO NOT AGREE TO THE TOS, THEN DO NOT INSTALL OR USE THE SERVICE.

IMPORTANT NOTICE:

THE SERVICE IS CURRENTLY BEING PRIVATELY TESTED BY AN INVITE-ONLY GROUP OF INDIVIDUALS FOR SOFTWARE DEVELOPMENT AND MENTAL HEALTH RESEARCH PURPOSES. ANY INFORMATION, ANALYSIS OR RECOMMENDATION PROVIDED BY THE SERVICE IS INTENDED FOR FITNESS/WELLNESS OR TESTING PURPOSES ONLY AND IS NOT INTENDED FOR USE IN THE DETECTION, DIAGNOSIS, MONITORING, MANAGEMENT TREATMENT, CURE OR PREVENTION OF ANY MEDICAL OR MENTAL HEALTH CONDITION, DISEASE OR VITAL PHYSIOLOGICAL OR MENTAL PROCESS, OR FOR THE TRANSMISSION OF TIME-SENSITIVE HEALTH INFORMATION. ANY INFORMATION FOUND, ACQUIRED OR ACCESSED THROUGH THE SERVICE IS MADE AVAILABLE ONLY FOR YOUR CONVENIENCE OR FOR TESTING OR RESEARCH PURPOSES, AND SHOULD NOT BE TREATED AS MEDICAL OR MENTAL HEALTH ADVICE. YOU SHOULD ALWAYS SEEK MEDICAL OR MENTAL HEALTH ADVICE FROM A DOCTOR, PSYCHIATRIST, COUNSELOR, THERAPIST, OR SIMILAR LICENSED PROFESSIONAL BEFORE MAKING ANY LIFESTYLE CHANGES BASED ON YOUR USE OF THE SERVICE. YOU UNDERSTAND AND AGREE THAT ANY INFORMATION YOU OBTAIN FROM THE SERVICE MAY NOT BE SUITABLE, ACCURATE, COMPLETE OR RELIABLE AND THAT HEALTHRHYTHMS WILL NOT BE HELD LIABLE FOR ANY INJURIES, DAMAGES, LOSSES AND/OR COSTS ASSOCIATED WITH THE SERVICE, NOR FOR THE ACCURACY OR RELIABILITY OF ANY INFORMATION FOUND, ACQUIRED, OR ACCESSED THROUGH THE SERVICE. YOU ACKNOWLEDGE AND AGREE THAT HEALTHRHYTHMS AND THE SERVICE IS NOT ENGAGED IN THE PRACTICE OF MEDICINE OR THE PROVISION OF MEDICAL ADVICE AND THAT HEALTHRHYTHMS DOES NOT DETERMINE THE APPROPRIATE MEDICAL USE OF THE SERVICE. HEALTHRHYTHMS AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL LIABILITY RESULTING FROM THE PROVIDERS’ DELIVERY OF THIRD-PARTY SERVICES, CONTENT, AND SERVICES AND DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE TRAINING OR SKILL OF THE PROVIDERS WHO PROVIDE SERVICES VIA THE SERVICE.  IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, YOU SHOULD DIAL “911” OR YOUR LOCAL EMERGENCY NUMBER IMMEDIATELY.

Subject to the terms of these TOS, you are granted a limited, non-exclusive and revocable license to install, access and use the Service. The services and features provided by the Service or Update (defined below) may vary or be limited depending on certain factors, including, without limitation, your country, device, operating system, or network operator. If you are 13 or older but under the age of 18, you and your parent or legal guardian each represent that you have reviewed these TOS with your parent or legal guardian and that you and your parent or guardian understand and consent to the terms and conditions of these TOS. If you are a parent or guardian permitting a person under the age of 18 ("Minor") to use the Service, you agree to: (i) supervise the Minor's use of the Service; (ii) assume all risks associated with the Minor's use of the Service, (iii) assume any liability resulting from the Minor's use of the Service; (iv) ensure the accuracy and truthfulness of all information submitted by the Minor; and (v) assume responsibility and are bound by this Agreement for the Minor's access and use of the Service. In any case, you affirm that you are over the age of 13, as THE APPLICATION IS NOT INTENDED FOR CHILDREN UNDER 13.

This Service may include software and data provided by third parties. You acknowledge that the Service is proprietary to HealthRhythms and its licensors, and is protected under applicable copyright and other intellectual property laws and treaties. These TOS and your use of the Service do not grant you any ownership interest in or claims against the Service, and you are granted only a limited license to use that is revocable in accordance with the terms of these TOS. You may not use the Service to reproduce copyrighted materials, or materials you do not have the right or legal approval for reproduction.

You may not (i) copy, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or algorithms of the Service; (ii) modify or disable any features of the Service; (iii) create derivative works based on the Service; (iv) rent, lease, lend, sublicense or provide commercial hosting services with the Service; (v) infringe our intellectual property rights or those of any third party in relation to your use of the Service (to the extent that such use is not licensed by this Agreement); (vi) use the Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these TOS, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Service or any operating system; (vii) use the Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users (viii) collect or harvest any information or data from the Service or our systems or attempt to decipher any transmissions to or from the servers running the Service; (ix) impersonate any person or entity, or use or provide any fraudulent, misleading or inaccurate information; and (x) use the Service on behalf or for the benefit of any third party.All HealthRhythms confidential documentation, technical and business information, and intellectual property in whatever form ("Confidential Information") shall remain the property of HealthRhythms, and may be used by the receiving Party only as provided herein.

In any event, Confidential Information includes, without limitation:
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(i) any algorithms, source code and internal programmers' documentation for
(a) the features, benefits, and functions of the Application and (
b) HealthRhythms proprietary software;

(ii) nonpublic financial information concerning  HealthRhythms; and

(iii) HealthRhythms’ research and development, new product, pricing and marketing plans, unless and until publicly announced.

Confidential Information shall not be copied or reproduced, in whole or in part, except for use as expressly authorized in this Agreement and shall, together with any full or partial copies thereof, be returned or destroyed when no longer needed or upon any termination of this Agreement.

The following paragraph applies to vendors, collaborators, and consultants of HealthRhythms or a HealthRhythms customer (“Collaborators”). It does not apply to Study Participants: The employees, officers, directors, members, consultants, advisers and other representatives of Collaborators (collectively “Representatives”) may access and view the Confidential Information only when such Representatives a) agree to be bound by terms at least as protective as the terms of this Agreement, and b) need to review the Confidential Information to fulfill the Collaborator’s obligations under a written agreement with HealthRhythms or HealthRhythms’ customers. A Collaborator will take all reasonable actions, by instruction, written agreement, or otherwise, to cause their Representatives to comply with the terms and conditions of this Agreement, and a Collaborator shall be liable for any and all breaches of this Agreement by such Collaborator’s Representative. A Collaborator shall advise those Representatives of their obligations with respect to Confidential Information, and such Collaborator shall be responsible for the observance of such obligations by those Representatives. During the term of this Agreement and for a period of three (3) years thereafter, a Collaborator shall not develop, directly or indirectly, any website or other computer system that substantially functions like or competes with the Application.

Health Rhythms may, at any time, provide or make available updates or upgrades to the Service ("Updates"), including without limitation bug fixes, service enhancements, new features, deletion of existing functions, or other modification of the Service. Updates will be governed by these TOS unless separate terms and conditions are provided with such Updates, in which case that separate terms and conditions shall govern the Updates. Updates for security software or critical bug fixes or other important Updates may be automatically downloaded and installed given the importance of receiving such Updates in a timely manner. HealthRhythms expressly reserves the right to change, suspend, remove, limit the use of or disable the access to the Service or any portion thereof at any time without notice or liability.

You acknowledge and agree that HealthRhythms and/or parties that are entrusted by HealthRhythms may collect and use information necessary to provide the Service and Updates, improve or enhance the Service. At all times your information will be treated in accordance with HealthRhythms' Privacy Policy, available at [https://www.healthrhythms.com/privacy-policy] (or any successor website), which you hereby accept in its entirety and which is hereby integrated into this Agreement by reference.

Some features of the Service may require your mobile device to have access to the internet and may be subject to restrictions imposed by your network or internet provider. The Service may require access through your mobile network, which may result in additional charges depending on your data plan. In addition, your enjoyment of some features of the Service may be affected by the suitability and performance of your device hardware or data access.

You acknowledge and agree to comply with any and all applicable United States and foreign laws and regulations in using the Service. HealthRhythms will not be held liable for your violation of any applicable law.  Any suspected inappropriate, fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies HealthRhythms may have at law or in equity.  Our Service may be subject to national, state and local regulations and may change from time to time due to changes in applicable regulatory requirements.

These TOS are effective until terminated or amended. You can terminate these TOS by ceasing your use of the Service, and uninstalling, deleting and returning all related software, documentation and other materials provided by HealthRhythms, including backup copies thereof. Should you not comply with these TOS, your rights based on these TOS will be automatically terminated without notice from HealthRhythms. Upon termination of these TOS, you must immediately cease all use of the Service. HealthRhythms may terminate or amend these TOS and the Service at any time, with or without notice and without liability to you. You agree that HealthRhythms will not be liable to you or any third party for any such termination.  The provisions of these TOS regarding the reservation of rights, restrictions on use, consent regarding data, privacy policy, compliance with law, disclaimer of warranty, limitation of liability, release, benefit of the bargain, indemnity, dispute resolution, time limitation on claims, applicable law, integration, and severability and waiver shall survive any termination of these TOS for any reason.  

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND FROM HEALTHRHYTHMS, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEALTHRHYTHMS DISCLAIMS ALL WARRANTIES EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY OR WORKMANLIKE EFFORT, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY OR AVAILABILITY, ACCURACY, LACK OF VIRUSES, QUIET ENJOYMENT, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR OTHER VIOLATION OF RIGHTS. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR LIMITATIONS OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM HEALTHRHYTHMS OR ITS AFFILIATES SHALL BE DEEMED TO ALTER THIS DISCLAIMER BY HEALTHRHYTHMS OF WARRANTY REGARDING THE SERVICE, OR TO CREATE ANY WARRANTY OF ANY SORT FROM HEALTHRHYTHMS.

YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL HEALTHRHYTHMS (OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, DIRECTORS, OFFICERS, OR AGENTS) BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THE USE OR THE INABILITY TO USE THE SERVICE, ITS CONTENT OR FUNCTIONALITY, INCLUDING, BUT NOT LIMITED TO, DAMAGES CAUSED BY OR RELATED TO ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FAILURE TO CONNECT, NETWORK CHARGES, AND ALL OTHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES EVEN IF HEALTHRHYTHMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. NOTWITHSTANDING THE FOREGOING, HEALTHRHYTHMS' TOTAL LIABILITY TO YOU FOR ALL LOSSES, DAMAGES, CAUSES OF ACTION, INCLUDING BUT NOT LIMITED TO THOSE BASED ON CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF YOUR USE OF THE SERVICE, OR ANY OTHER PROVISION OF THESE TOS, SHALL NOT EXCEED $50 OR THE AMOUNT YOU PAID HEALTHRHYTHMS SPECIFICALLY FOR THIS SERVICE IN THE PRIOR SIX (6) MONTHS, WHICHEVER IS GREATER. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THESE TOS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

You hereby release and forever discharge HealthRhythms (and HealthRhythms’ directors, officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to any interactions with, or act or omission of the Service.  IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT 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.”

YOU ACKNOWLEDGE AND AGREE THAT HEALTHRHYTHMS HAS OFFERED THE SERVICE AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS, THE LIMITATIONS OF LIABILITY, AND THE RELEASE SET FORTH ABOVE. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS, THE LIMITATIONS OF LIABILITY AND THE RELEASE SET FORTH IN THIS AGREEMENT REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND HEALTHRHYTHMS, AND THAT THE FOREGOING FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND HEALTHRHYTHMS. HEALTHRHYTHMS WOULD NOT BE ABLE TO PROVIDE THE SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THE FOREGOING.

You agree to indemnify, defend, and hold harmless HealthRhythms, its contractors, employees, affiliated companies, directors, officers and agents from any claims, losses, damages, liabilities (including legal fees and expenses), suits, actions and costs arising out of your use or misuse of the Service, your violation of the rights of any third party, your violation of any applicable law, or any breach of these TOS. HealthRhythms reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.

You agree that all disputes between you and HealthRhythms (whether or not such dispute involves a third party) with regard to your relationship with HealthRhythms, including without limitation disputes related to these Terms of Use, your use of the Service, and/or rights of privacy and/or publicity, will be resolved by binding, individual arbitration under the American Arbitration Association's (the “AAA”) rules for arbitration of consumer-related disputes and you and Health Rhythms hereby expressly waive trial by jury. You and HealthRhythms shall appoint one arbitrator mutually agreed upon by you and us or, if you and we cannot agree within thirty (30) days of either party’s request for arbitration, such arbitrator shall be selected by the AAA upon the request of either party. The parties shall bear equally the cost of the arbitration (except that the prevailing party shall be entitled to an award of reasonable attorneys’ fees incurred in connection with the arbitration in such an amount as may be determined by the arbitrator). All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding the foregoing, application may be made to any court for a judicial acceptance of the award or order of enforcement. Under no circumstances shall the arbitrator be authorized to award damages, remedies or awards that conflict with this Agreement.

As an alternative, you may bring your claim in your local "small claims" court, if permitted by that small claims court's rules. You may bring claims only on your own behalf. Neither you nor HealthRhythms will participate in a class action or class-wide arbitration for any claims covered by this agreement. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if Health Rhythms is a party to the proceeding.

This dispute resolution provision will be governed by the Federal Arbitration Act. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either HealthRhythms or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these TOS.You may opt out of this agreement to arbitrate. If you do so, neither you nor HealthRhythms can require the other to participate in an arbitration proceeding. To opt out, you must notify HealthRhythms in writing within 30 days of the date that you first became subject to this arbitration provision. You must use this address to opt out:

Health Rhythms, Inc.
28-07 Jackson Avenue
Long Island City
New York, NY 11101

You must include your name and residence address, the email address you use for your HealthRhythms account, and a clear statement that you want to opt out of this arbitration agreement.If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your relationship with HealthRhythms.

You agree that any claim you may have arising out of or related to your relationship with HealthRhythms must be filed within one year after such claim arose; otherwise, your claim is permanently barred.

You agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of New York, without regard to principles of conflict of laws that would result in the application of the law of any other jurisdiction, will govern these TOS and any dispute of any sort that might arise between you and HealthRhythms.

These TOS are the full and complete statement of the agreement between You and HealthRhythms with respect to the Services and the subject matter hereof; no other agreement or terms, whether written or oral, including any other document provided by HealthRhythms or content posted to HealthRhythms’ website, shall be applicable.