TERMS AND CONDITIONS OF USE
One of healthio's goals is to make sure that you have the best experience possible when accessing or using our services. In order to do that, we want to make sure you understand the "rules to live by" when accessing or using our services. Please read the following terms and conditions carefully. If you have any questions, please do not hesitate to contact the sponsor through which our Services were offered to you.
healthio, inc. and its affiliates and subsidiaries (collectively referred to throughout as “healthio,” “we” or “us”), offer a variety of products and services, including the healthio-branded websites, applications, devices, hardware, content and other technology products and/or services; our e-commerce websites and applications; healthio App (defined below); and all other current and future digital products and service offerings we make available, including any products and services provided in collaboration with our partners (collectively, the “Services”).
USING OUR SERVICES
1. Use of the Services and Your Account
(a) You must be at least eighteen (18) years of age to use the Services. No individual under this age limit may use the Services, provide any Personal Information to healthio, or otherwise submit Personal Information through the Services. By accessing or using any Services, you represent and warrant that you are at least eighteen (18) years of age at the time of your access or use.
(b) You may need to register for a healthio account in order to access or use certain Services. Your account may automatically provide you access and means to use new Services that we create.
When you create an account for any of the Services, you must provide us with accurate and complete information, and keep that information up to date. Otherwise, some of the Services may not operate correctly, and we may not be able to contact you with important notices.
If you create an account, you are responsible for maintaining the confidentiality of any User-Generated Content and all actions that take place while using your account, and you must notify our Support Group(firstname.lastname@example.org) right away of any actual or suspected loss, theft, or unauthorized use of your account or account password. We are not responsible for any loss that results from unauthorized use of your username and password, with or without your knowledge.
(c) Service Updates, Changes and Limitations
The Services change frequently, and their form and functionality may change without prior notice to you. We may also impose limits on certain Services or restrict your access to part or all of the Services without notice or liability.
We may also from time to time and without prior notice to you, develop and provide updates for certain Services. This may include upgrades, modifications, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Certain portions of the Services may not properly operate if you do not install all Updates. These Updates may include updated versions of our applications, which may automatically electronically upgrade the versions used on your device, as well as updates to connected products. You expressly consent to such automatic Updates. Further, you agree that these Terms (and any additional modifications of the same) will apply to any and all Updates to the Services. We have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of any of the Services.
(d) Service Monitoring and Suspension
We reserve the right, but have no obligation, to monitor any accounts and/or activities conducted through or in any way related to the Services (including inviting another individual into your network), as well as your use of or access to your location data , Personal Information, and profiles of other healthio users.
We care about the security of our users. While we work hard to protect the security of your User-Generated Content (which includes your Personal Information), and account, we cannot guarantee that unauthorized third parties will not be able to defeat our security measures. Please immediately change your password and notify our Support Group (email@example.com) immediately of any actual or suspected breach or unauthorized access or use of your account.
(f) Consent to Receive Communications
After signing up for an account, you may receive periodic communications regarding the operations of the Services. You may also receive periodic health related materials or content that we believe may be of interest to you. You cannot opt out of receiving these communications while you continue to use the Services.
By finding and connecting with your friends and others, you may receive electronic communications, including messages from them.
USE OF CONTENT
3. Ownership and Use of Content
All copyright, trademarks, design rights, patents and other intellectual property rights (registered and unregistered) in and on the Services and healthio Content belong to healthio and/or its partners or applicable third parties. Each user retains ownership, responsibility for, and/or other applicable rights in the User-Generated Content that they create. Except as expressly provided in these Terms, nothing in these Terms grants you a right or license to copy, use, modify, or create derivative works from any healthio Content, including any content owned or controlled by any of our partners or other third parties. You agree that you will not infringe on the intellectual property rights of others in connection with the use of the Services, and represent and warrant that you have all of the necessary rights to grant healthio a license (described further in Section 3(d) below) for all User-Generated Content you submit in connection with the Services.
(c) Our License to You
You acknowledge and agree that the Services, any necessary software used in connection with the Services (if any), and the healthio Content contain proprietary and confidential information that is protected by applicable intellectual property and other laws. We grant you a limited, revocable, personal, non-transferable, and non-exclusive right and license to access and use the Services and, solely in connection with your authorized use of the Services, the healthio Content, 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, or otherwise transfer any right in the healthio Content or Services to anyone else. This license is subject to these Terms, including our Community Guidelines (defined below) and the following:
healthio Content - Except as expressly permitted by applicable law or authorized by healthio, you agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, the Services’ software, or any healthio Content offered as part of the Services, in whole or in part. You may not download, copy, or save healthio Content, except as expressly permitted by specific guidelines and/or additional terms applicable to those Services providing for the limited-purpose download of certain healthio Content, and then solely for your own personal use in connection with the Services.
Commercial Usage of the Services - The Services are intended only for your personal, non-commercial use. You may 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.
Linking to the Services - If you would like to link to the Services on your website or application, please follow these rules: (i) any link to the Services must be a text only link clearly marked “healthio” (without the use of any other trademark, logo copyright or any other intellectual property asset owned or controlled by healthio) or in some other format directed by healthio, (ii) the appearance, position and other aspects of the link and the context in which the link is shown 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 and the context in which the link is shown may not be such as to imply any false or misleading appearance that you, your organization or entity, or any third party is sponsored by, affiliated with, or associated with healthio, (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) healthio reserves the right to revoke its consent to the link at any time and in its sole discretion, and upon our notification to you of such revocation of consent, you agree to promptly remove the relevant link from all websites or applications in which it appears.
Confusion or Impersonation - Do not impersonate any person or entity, falsely claim an affiliation with any person or entity, or take any action that could imply an affiliation that does not exist or mislead any third party as to such affiliations.
Disruptions, Exploits, or Resource Abuse - Do not interfere with or damage operation of the Services, including through unauthorized use, disruption, automated attacks, exploitation, or abuse of our resources.
Automated Querying - Do not send automated queries of any sort to the systems and networks we use to provide the Services without our express written permission. “Sending automated queries” includes but is not limited to:
◦ using any software that sends automated queries to the systems and networks we use to provide the Services that seek data;
◦ “meta-searching” the Services and the systems and networks we use to provide the Services; and
◦ performing “offline” searches relative to the Services.
Unlawful Uses - You may only use the healthio Content and/or Services for legally permitted purposes. You may not use the Services or any healthio Content or other information displayed on or made available by the Services to stalk, harass, abuse, defame, threaten or defraud others, or otherwise for any unlawful or improper purpose, including, without limitation, any use or purpose that reflects poorly on healthio in healthio's sole discretion.
(d) Your License to Us
We reserve the right to monitor, remove or modify User-Generated Content for any reason and at any time, including User-Generated Content that we believe violates these Terms, the Community Guidelines, and/or our policies.
(e) Content Retention
Please keep in mind that when you make something publicly available on the Internet, it becomes practically impossible to remove all copies of it in the future.
(f) Your Feedback
If you choose to submit comments, ideas or feedback, you agree that we are free to use the ideas you submit without any restriction or compensation to you. By accepting your submission, healthio does not waive any rights to use similar or related feedback previously known to healthio, developed by our employees or obtained from sources other than you. You certify and represent that the information or feedback you submit to us through the Services is not confidential or proprietary information.
healthio owns or licenses all healthio trademarks, service marks, branding, logos, and other similar assets (the “healthio Trademarks”). You are not permitted or authorize to copy, imitate, modify, display or otherwise use the healthio Trademarks (in whole or in part) for purposes other
than personal use, or in connection with any web or mobile product or service that is not authorized by healthio, without our prior written approval.
(h) 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.
In addition, User-Generated Content are not produced by healthio, and should also not be relied on. User-Generated Content available in connection with the Services, whether publicly posted or privately transmitted, is the sole responsibility of the user from whom such User-Generated Content originated. We do not endorse any opinions or recommendations contained in User-Generated Content. All information is provided “as is” without any representation, warranty or condition as to its accuracy or reliability.
GUIDELINES FOR OUR COMMUNITY
4. Community Guidelines
(a) Interactive Areas
The Services often contain community features. When you post content through these features that content may become public.
Some of the Services may include reviews, discussion forums, conversation pages, blogs or other interactive areas or social features that allow you and other users to post User-Generated Content and interact with one another (“Interactive Areas”). You are solely responsible for your use of the Interactive Areas and for any User-Generated Content that you post, including the transmission, accuracy and completeness of the User-Generated Content. As the Interactive Areas are often public, you understand that your User-Generated Content may be made and remain public.
You are solely responsible for your interactions with other users, whether online or in person. We assume no responsibility or liability for any loss or damage resulting from any interaction with other users who employ the Services, individuals you meet through the Services, or individuals who find you because of Content posted on, by or through the Services. You agree to take reasonable precautions in all interactions with any individuals you interact with in connection with the Services. You are solely responsible for your involvement with any individuals you interact with in connection with the Services. healthio is under no obligation to become involved in any disputes between its users.
Your use of the Interactive Areas and your interaction with any other user or any User-Generated Content is SOLELY AT YOUR OWN RISK. healthio does have any obligation to monitor or edit any interactions or other postings in connection with the Services and you should have no expectation that healthio will do so.
(b) Community Guidelines
We require all users to agree to, and follow, the following rules (the “Community Guidelines”) when posting User-Generated Content and using the Services. By using the Services you agree that your User-Generated Content and use of the Interactive Areas will not violate the Community Guidelines. If you violate the Community Guidelines, we reserve the right to terminate your access to the Services.
- No Discriminatory or Abusive Content, or Personal Attacks or Insults.
- Don’t post Content that is threatening, hurtful, harassing, embarrassing, or annoying to other users.
- No derogatory references to sex, gender, age, weight, body type, disability, ethnicity, religion, or sexual orientation, or endorsement of violence against any person or group will be permitted. This includes expressing stereotypes about any group or community.
- Don’t post Content that is defamatory, obscene, pornographic, offensive, hateful, inflammatory, or promoting sexually explicit material.
- If you are participating in our forums, please stay on-topic in an existing thread, and post new threads in the appropriate forum. Taking a thread off-topic is considered hijacking. Please either contribute politely and constructively to a topic, or move on without posting.
- Don’t use the Services in a way that harms others, including minors.
- Don’t spam people via posts, replies, or messages.
- Don’t advocate, promote, or assist any fraudulent or illegal act (e.g., violence, impersonation and computer misuse).
- Don’t post or solicit Personal Information regarding or from any third party, including photographs, telephone numbers, street addresses, last names, email addresses and passwords in the Interactive Areas.
- Don’t publicly post an email or private message.
- Don’t post Content that is in breach of any contractual or other legal duty owed to a third party.
- Don't post deceptive or fraudulent links. This includes giving links misleading descriptions, putting the wrong “source” field in a post, setting misleading click-through links on images, or embedding links to interstitial or pop-up ads.
- If you aren’t allowed to use someone else's proprietary work or likeness (either by license or by legal exceptions and limitations such as fair use), don’t post it. In particular, if you have any reason to believe that User-Generated Content you see on the Services is infringing your copyrights or the copyrights of others, please see the Copyright/DMCA section of these Terms.
- Don’t post Content that is likely to deceive any person or be used to impersonate any person, or to misrepresent your identity or affiliation with any person, including with healthio.
- Don’t post Content that contains anything that, in healthio’s sole determination, is objectionable or inhibits any other person from using or enjoying the Services, or that may expose healthio to any harm or liability of any kind.
If we determine that you are violating the Community Guidelines or otherwise have breached these Terms, we may take actions to address the issue, including, but not limited to, terminating your right to use the Services, removing your User-Generated Content, taking legal action against you (in which case you agree to indemnity us for our attorneys’ fees and our reasonable costs incurred) or disclosing information to law enforcement authorities. We reserve the right to enforce, or not enforce, these Community Guidelines in our sole discretion, and they don’t create a duty or contractual obligation for us to act in any particular manner.
(c) Objectionable User-Generated Content
While we require that all users comply with the Community Guidelines and reserve the right to monitor for violations, we are not obligated to monitor for violations and ultimately cannot guarantee they will comply with the Community Guidelines or these Terms. If you believe any Content submitted to the Services violates the Community Guidelines, or if you know or suspect that someone is misusing your User-Generated Content, please report it to the our Support Group (firstname.lastname@example.org). By consenting to these Terms, you understand and acknowledge that when you access or otherwise use the Services:
- You may be exposed to User-Generated Content from a variety of sources, and that we are not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User-Generated Content.
- You may be exposed to User-Generated Content shared by others that is offensive, indecent, or otherwise objectionable.
We are not responsible for any injury or harm to you resulting from objectionable User-Generated Content or another individual’s failure to comply with our Community Guidelines or these Terms.
5. Copyright/ DMCA
If you believe that User-Generated Content or healthio Content infringes copyright under U.S. or other national law, please notify our Copyright Agent (see below) immediately using the contact information provided herein. It is our policy to investigate any allegations of copyright infringement brought to our attention. Please provide us with the following information in your notice of a suspected copyright violation:
- Identification of the work or material being infringed.
- Identification of the material that is claimed to be infringing, including its location, with sufficient detail so that we are capable of finding it and verifying its existence.
- Contact information for the notifying party (the “Notifying Party”), including name, address, telephone number, and email address.
- A statement that the Notifying Party has a good faith belief that the material is not authorized by the copyright owner, its agent or law.
- A statement made under penalty of perjury that the information provided in the notice is accurate and that the Notifying Party is authorized to make the complaint on behalf of the copyright owner.
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed.
Your notice must be signed (physically or electronically) and must be addressed as follows:
c/o healthio, inc.
12605 W. North Ave, #228
Brookfield, WI 53005
You acknowledge that if you fail to comply with all of the requirements of this section, your notice may not be valid. The information provided in a notice of copyright infringement may be forwarded to the individual who posted the allegedly infringing content. In the U.S., under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. Please see or for more information about how to prepare or respond to a DMCA notice.
PRODUCTS AND SERVICES OFFERED BY OTHERS
6. Third Party Links and Services
The Services may link to, interact with or be available on third-party services or products such as social media providers and third-party devices. If you access such third-party services or products, be aware that different terms and privacy policies may apply to your usage of such services. healthio is not responsible for, and does not monitor, any third-party websites, services or products that may be linked with the Services. No such third-party websites, services or products are associated with healthio notwithstanding that they may be accessible via link from the Services or may link to the Services.
(a) Third-Party Applications
You may be able to access certain third-party links, applications or content (“Third-Party Applications”) via accounts related to the Services. If you choose to access these Third-Party Applications, you may be requested to log-in and sync your accounts with such applications. You are in no way obligated to use any Third-Party Applications, and your access and use of such applications is entirely at your own risk. If you opt to use Third-Party Applications via your account with us, they may gain access to certain information that you have provided to us, including Personal Information, and they will use, store, and disclose such information in accordance with their individual privacy policies and terms and conditions. We have no liability or responsibility for the privacy and information security practices or other actions of any Third-Party Application that you choose to access through your accounts with us. In addition, we are not responsible for the accuracy, availability, or reliability of any information, content, goods, data, opinions, advice, or statements made available by any Third-Party Application. As such, we are not liable for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Third-Party Applications.
(b) Third-Party Content
The Services may contain links to third-party websites, content, advertisers, services, promotions, special offers, or other events or activities (“Third-Party Content”) that are not owned or controlled by us. We do not endorse or assume any responsibility for Third-Party Content. If you access or pay for Third-Party Content, you do so at your own risk and you agree that we have no associated liability.
(c) Third Party Products
The Services may be accessed on third-party devices or other products or services (“Third Party Products”), and your ability to use certain features of the Services may require you to purchase Third-Party Products. While we may recommend, promote, or market the products of certain partners, we have no responsibility for your acquisition or use of any Third-Party Products, and we do not guarantee that Third-Party Products will function with the Services or will be error-free. We hereby disclaim liability for all Third-Party Products, including any Third-Party Products offered by our partners.
YOUR MOBILE DEVICE
7. Mobile Services
(a) Wireless Carrier and Device Considerations
To use or access our applications associated with the Services (“healthio’s App”), you will need a compatible device. We cannot guarantee that healthio’s App will be compatible with, or available on, your device. Further, your phone company’s normal messaging, data, and other rates and fees will still apply.
(b) Text and Mobile Messaging Express Consents
By downloading or using healthio’s App, you expressly agree that we may communicate with you regarding transactions you have initiated on the Services or respond to your communications to us through the Services by SMS, MMS, text message or other electronic means directed to your device and that certain information about your usage of the applications may be communicated to us.
(c) Mobile Application License
We hereby grant you a limited, personal, non-exclusive, non-transferable, non-sub-licensable, revocable license to use healthio’s App downloaded directly from a legitimate marketplace, solely in object code format and solely for your personal use for lawful purposes. With respect to any open source or third-party code that may be incorporated in healthio’s App, such open source code is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code.
(d) App Stores
If you download healthio’s App from a third-party app store (the “App Provider”), you acknowledge and agree that:
- These Terms are an agreement between us, and not with the App Provider. As between healthio and the App Provider, healthio is solely responsible for healthio’s App;
- The App Provider has no obligation to provide any maintenance and support services with respect to healthio’s App;
- In the event of any failure of healthio’s App to conform to any applicable warranty, (i) you may notify the App Provider and the App Provider may refund the purchase price for healthio’s App to you (if applicable), (ii) to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to healthio’s App, and (iii) any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be, as between healthio and the App Provider, healthio’s responsibility;
- The App Provider is not responsible for addressing any claims you have relating to healthio’s App or your possession and use of healthio’s App;
- If a third party claims that healthio’s App infringes another party’s intellectual property rights, as between the App Provider and healthio, healthio will be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms;
- The App Provider and its subsidiaries are third-party beneficiaries of these Terms as it relates to your license to healthio’s App. Upon your acceptance of the terms and conditions of these Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of healthio’s App against you as a third-party beneficiary thereof; and
- You must also comply with all applicable third-party terms of service when using the applications.
SERVICES ARE NOT MEDICAL ADVICE
8. Safety, Not Medical Advice, Accuracy, HIPAA
We provide the Services for information purposes only, and you agree that we are not liable if you get injured or something goes wrong. DO NOT RELY ON ANY OF WHAT YOU MAY PERCEIVE TO BE MEDICAL INFORMATION OR ADVICE IN CONNECTION WITH THE SERVICES. THE SERVICES DO NOT CONTAIN OR PROVIDE MEDICAL INFORMATION OR ADVICE AND NOTHING CONTAINED IN THE SERVICES CONSTITUTES OR SHOULD BE INTERPRETED AS MEDICAL ADVICE IN CONNECTION WITH ANY INDIVIDUAL.
(a) Safety First
You should consult with your healthcare provider(s) and consider the associated risks before using the Services in connection with any monitoring activity, physical activity or wellness or fitness program. By using the Services, you agree, represent and warrant that you have received consent from your physician to participate in any monitoring activity, physical activity or wellness or fitness programs, or any of the related activities made available to you in connection with the Services. You should rely on the advice of your physician and not any information obtained in connection with the Services. Everyone’s condition and abilities are different, and participating in such activities or programs is at your own risk. If you choose to participate in these activities or programs, you do so of your own free will and accord, knowingly and voluntarily assuming all risks associated with such activities and programs. Activities in connection with the Services may pose risks even to those who are currently in good health.
You understand and agree that we will not carry out and are not responsible for any monitoring, response, inspection, supervision, preparation, execution or conduct of any activities or programs related to or accessed or discovered via the Services.
You expressly agree that your monitoring activities, physical activates, wellness or fitness programs and certain Third-Party 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 and programs, even if caused in whole or part by the action, inaction, or negligence of healthio or by the action, inaction, or negligence of others.
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 injuries or damages that are sustained from your monitoring activities, physical activities, wellness or fitness programs or your use of, or inability to use, any Services or features of the Services, including any Content or activities that you access or learn about through the Services (e.g., a Third-Party Activity), even if caused in whole or part by the action, inaction or negligence of healthio or by the action, inaction or negligence of others. To the maximum extent permitted by applicable law, you also expressly agree that we do not assume responsibility for any Third-Party Activity that utilizes or is promoted by or accessed via the Services.
(b) Not Medical Advice
The Content is for informational purposes only. The Content should not be considered, or used as a substitute for, professional medical advice, diagnosis or treatment. Neither the Services nor the Content constitute the practice of any medical, nursing or other professional health care advice, diagnosis or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition, diagnosis and treatment. Never disregard professional medical advice or delay in seeking it because of something you have read on or via the Services.
healthio does not recommend or endorse any specific tests, physicians, products, procedures, opinions or other information that may be mentioned on or via the Services or contained in the Content. Reliance on any information provided by healthio, on or via the Services or any Content is solely at your own risk. We aim to provide useful general information for our users, not professional medical advice, and not advice particularized to any individual. You understand and agree that each individual is different and that any information that may be obtained in connection with the Services may not apply to you. The Services are not medical devices, and the data provided by them is not intended to be utilized for medical purposes and is not intended to diagnose, treat, cure or prevent any disease, ailment or injury. To the maximum extent permitted by applicable law, you expressly agree that we are not providing medical advice via the Services. All Content provided through the Services, whether provided by us or by third parties (even if they are or are claiming to be a medical professional) is not intended to be and should not be used in place of (a) the advice of your physician or other professionals, (b) a visit, call or consultation with your physician or other medical professionals, or (c) information contained on or in any product packaging or label. We are not responsible for any health problems that may result from monitoring activities, physical activities or wellness or fitness programs that you may use or learn about through the Services. Should you have any health related questions, please call or see your physician or other healthcare provider promptly. If you have an emergency, call your physician or your local emergency services immediately.
Your use of the Services does not constitute or create a doctor-patient, therapist-patient or other healthcare professional relationship between healthio and you.
The Services are intended to provide you with information to encourage you to support your wellness. Some of the Services are aimed at tracking your biometrics. These Services rely on sensors that track the data. The data and information provided by the or via the Services or sensors are intended to be a representation of your biometrics, but may not be completely accurate.
You understand and agree that your Non-Personal Information is not protected health information, or "PHI," as that term is defined by the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). As such, healthio is not obligated to protect the privacy or confidentiality of the Non-Personal Information in accordance with HIPAA.
You further understand that healthio provides services to Covered Entities (as that term is defined by HIPAA), which includes third-parties such as your physician or other health care professional. As such, we will share your Personal Information, which included protected health information (as that term is used by HIPPA) with those applicable Covered Entities. Accordingly, healthio is acting in the capacity of a Business Associate, as that term is defined by HIPAA, to your Covered Entity (e.g. physician or other health care professional). Outside of the Personal Information provided to healthio, you and your physician or other health care professional are solely responsible for ensuring that communications between you and your physician takes place in a HIPAA-compliant manner.
If you are a health care professional, you agree, in addition to all of the these Terms, that any data provided through or via the Services may not be completely accurate and that you will not rely on any such data for the purposes of medical evaluation, diagnosis or treatment.
CHANGES AND REVISIONS
9. Modifications to the Terms and Product-Specific Terms
(a) Updates to these Terms
healthio reserves 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 these Terms, generally via email where practicable, and otherwise through the Services (such as through a notification on the home page of the healthio websites or in our applications). 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 these Terms. In such cases, modifications will be effective at the time of your agreement to the modified version of these Terms. If you do not agree at that time, you will no longer be authorize or permitted to access or use the Services. In cases where we do not ask for your explicit agreement to a modified version of these Terms, the modified version of these Terms will become effective as of the date specified in these Terms. Your use of the Services following that date constitutes your acceptance of the terms and conditions of these Terms as modified. If you do not agree to the modifications, you will no longer be authorize or permitted to access or use, and should discontinue your use of, the Services.
(b) Product-Specific Terms
We may also require you to agree to additional terms, rules, policies, guidelines, or other conditions that are specific to certain Services (collectively, “Product-Specific Terms”). In such cases, you may be required to expressly consent to Product-Specific Terms. For instance, you might need to check a box or click on a button marked “I agree.” If any of the Product-Specific Terms are different than these Terms, the Product-Specific Terms will supplement, amend, or supersede these Terms, but only with respect to the subject matter of the Product-Specific Terms.
WARRANTIES, LIMITATIONS ON LIABILITIES, & INDEMNIFICATION
10. No Warranties
EXCEPT WHERE PROHIBITED BY LAW, healthio 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 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, (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 Content; User-Generated Content, in particular, is provided by and is solely the responsibility of the users providing that 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.
11. Limitation of Liability
To the maximum extent permitted by applicable law, under no circumstances (including, without limitation, negligence) shall healthio, its subsidiaries, partners or any wireless carriers 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 athlete using 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, Third-party Products or Third-Party Activities accessed 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 healthio 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, healthio’s total liability for any claim under these Terms or as may otherwise be permitted under applicable law, including for any implied warranties, is limited to one hundred dollars (U.S. $100.00).
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 (including but not limited to your participation in any activities promoted by or accessed via the Services), (b) the use, disclosure, display, or maintenance of any of your Personal Information and/or location data, (c) any other interactions with us or any other users using 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 and set the Services’ prices in reliance upon the warranty disclaimers, releases, and limitations of liability set forth in these Terms. To the extent permitted by applicable law, you also acknowledge and agree that these warranty disclaimers, releases, and limitations of liability reflect a reasonable and fair allocation of risk between you and us and that these warranty disclaimers, releases, and limitations of liability 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.
If you are a resident of California: You waive your rights with respect to California Civil Code Section 1542, which says “a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
If you are a resident of New Jersey: Notwithstanding anything herein to the contrary, nothing in these Terms limits or excludes our responsibility for losses or damages caused by healthio’s own fraud, recklessness, gross negligence or willful misconduct.
To the maximum extent permitted by applicable law, you agree to indemnify and hold healthio, its subsidiaries, suppliers and other partners harmless from any cost, damage, or liability, including accounting and attorneys’ fees, resulting from any claim or demand made by any third party due to or arising out of (a) the User-Generated Content you access or share through the Services; (b) your use of the Services, (c) your activities in connection with the Services (including, but not limited to, monitoring activities, physical activities, wellness or fitness programs and Third-Party Activities where the Services are employed), (d) your connection to the Services, (e) your violation of these Terms, (f) your use or misuse of any user’s Personal Information and Location Data, (g) any violation of the rights of any other person or entity by you, or (h) your employment of the Services to meet another user in person or to locate and attend any offline place or event. 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 these Terms, and you agree to cooperate with our defense of these claims.
If you are a resident of New Jersey: Notwithstanding anything herein to the contrary, nothing in these Terms limits or excludes our responsibility for losses or damages caused by healthio’s own fraud, recklessness, gross negligence or willful misconduct.
JURISDICTION & ARBITRATION
13. Governing Law
These Terms shall be governed by and construed in accordance with the laws of the State of Wisconsin and controlling U.S. federal law as applicable, without regard to its conflict of law principles.
14. Disputes and Arbitration, Jurisdiction and Venue
To the maximum extent permitted by applicable law, you and healthio agree that any 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 rules of the American Arbitration Association.
Any arbitration between you and us, to the extent necessary, will be conducted in Milwaukee, Wisconsin, and you waive any right to claim that such location is an inconvenient forum. You agree not to sue us or bring arbitration in any other forum.
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. 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; and
• any 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 use of 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; and
- You must file any claim within one (1) year after such claim arose or it is forever barred.
If this arbitration provision is found to be null and void, then all disputes arising under these Terms between us will be subject to the jurisdiction of the state and federal courts located in Milwaukee, Wisconsin, and you and we hereby submit to the personal jurisdiction and venue of these courts.
This agreement to arbitrate will not preclude you or healthio 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 healthio 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 healthio’s intellectual property rights.
In the event of any litigation or arbitration arising from or related to these Terms, or the Services provided, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred including staff time, court costs, attorneys’ fees and all other related expenses incurred in such litigation or arbitration.
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 3 (Ownership and Use of Content), Section 9 (Safety, Not Medical Advice, Accuracy), 11 (No Warranties), 12 (Limitations of Liability) and 13 (Indemnification).
You agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of these Terms or your use of the Services. These Terms and any Product-Specific 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 these Terms does not constitute a waiver of such right or provision. If any provision of these 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 these 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 these 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.
TALK TO US
17. Contact Us
If you have any feedback, questions or comments about the Services, please contact our Support Group () by email, or by mail at: healthio, inc., 12605 W. North Ave, #228, Brookfield, WI 53005 (USA), and include the subject as “Attn: Legal – Terms and Conditions of Use”. Please be sure to include in any email or postal mail your full name, email address, postal address, and any message.