Last Updated: October 20, 2020
The Service is intended as a means of assistance and management for individuals diagnosed with chronic diseases or interested in assistance with conducting healthy lifestyle and improved well-being. The Service is provided for informational purposes only. It is not, and is not intended as, a substitute for your in-presence, qualified professional medical diagnosis, advice, guidance or treatment. Always seek the advice of a physician or qualified health care professional for any medical or health related issues.
“BROOK” is a powerful machine learning real-time healthy lifestyle management tool that uses our innovative analytics tools to collect and combine personal data from user input, certain devices provided by Company and/or Third Parties, together with clinical knowledge, to create insights and recommendations to help users stay as healthy as possible. By accessing or using the Service in any way, or by registering as a user, you agree to be bound by these Terms.
You may use the Service for your personal and non-commercial use. These Terms define the acceptable use of the Service and the actions you should avoid while using the Service.
You are granted access to the Service either as a registered user after the authorization of an account subscription or as an unregistered user without an account subscription. Please note that unregistered users have limited access to our Service. The Service is intended and permitted only for individuals 16 years of age or older.
As part of the Service, you will have the option to connect and communicate with a third- party professional (“Professional”) who may provide you with certain insights and advice. We do not employ the Professionals and do not assume responsibility for the quality of their services or any of their acts or omissions in the course of your engagement with them.
We may temporarily or permanently deny, limit, suspend, or terminate your User Account. You may terminate your User Account at any time.
All rights, title and interest in and to the Service, including all intellectual property rights, are owned by – or licensed to us. When you upload Content to the Service you represent and warrant that you are the rightful owner of all rights to such Content or lawfully licensed by all the rightful owners to upload such Content on the Service. Availability The Company does not warrant or guarantee that the Service will operate without disruption, errors or interruptions, or that it will be accessible, or available at all times, or immune from unauthorized access or error free.
Disclaimer of warranty
The Service is provided for use as is. We disclaim all warranties and representations, either express or implied, with respect to the Service.
Limitation of liability
The total liability of the Company, including anyone on its behalf, for claims arising out of or related to these Terms will not exceed the greater of (1) One Thousand and No/100 Dollars ($1,000) or (2) the total amount of the fees that you paid to use the relevant Services in the twelve (12) months preceding the date such claim was filed.
Law & jurisdiction
The total liability of the Company, including anyone on its behalf, for claims arising out of or related to these Terms will not exceed the greater of (1) One Thousand and No/100 Dollars ($1,000) or (2) the total amount of the fees that you paid to use the relevant Services in the twelve (12) months preceding the date such claim was filed.
Welcome to “BROOK“– a powerful machine learning real-time chronic diseases healthy lifestyle management tool – available to you through our designated smartphone application (the "App"). In addition to the App, Brook, Inc. may also provide you with one (1) or more electronic device(s) that collects your physiologic data and automatically uploads your physiologic data to your health care provider (the "Brook-Supplied Devices").
The App, the Brook-Supplied Devices, their services and any feature included therein will be jointly referred to as the "Service"or the "Services". The Service is owned and operated by Brook Inc. (the "Company","we","us" and "our").
These Terms apply to the use of the Service, the Brook-Supplied Devices and any content available therein by any communication means (including smartphones, smartwatches, tablets, etc.). These Terms further apply to the use of the Service via the Internet network or any other communication networks.
Use of the Service may be subject to additional terms and conditions that govern the use of mobile devices, such as the terms governing the use of Apple devices or Apple’s “App Store”, or any other application marketplace and the agreements governing your use of your connected devices and their respective privacy policies. You bear the sole and exclusive responsibility for complying with any such additionally applicable terms and conditions.
Use of most features of the Service requires an online connection (Wi-Fi, cellular data) between your mobile device and the Internet. You are solely responsible for all costs and expenses of such connection, as specified in your subscriber plan or contract with your communication service provider. Some of the features within the Services may be dependent on your wireless service and the wireless coverage within the area in which you are located at that time.
2.- ABOUT THE SERVICE IN A NUTSHELL
3.- AGE RESTRICTION
If you are under the age of 16, you may not use the Service in any way. If you are a minor (normally under the age of 18) over the age of 16, you must obtain permission from your parent or legal guardian to accept these Terms. By using, accessing or registering with the Service, you declare that you are 16 years of age or older.
If you are a minor over the age of 16, then you also declare that you have received your parent’s or legal guardian’s permission to use the Service and accept these Terms. We reserve the right to terminate an account, if we find that you are younger than the minimum age specified above. We may request additional information to confirm your age at any time.
4.- REGISTRATION AND USER ACCOUNT
Our Service is available to registered users as well as to unregistered users. However, some features of our Service, such as communicating with health care providers who provide professional advice, are only available to registered users (the "Member Services"). To use the Member Services, you’ll need to create a personal account ("User Account"). When you create a User Account we may ask you to provide us with certain contact and personal details, such as your full name and an active e-mail address and to enter a username and password. You are fully accountable for any outcome that may result from your failure to provide true, accurate and complete details when you sign-up. You are solely responsible and liable for all activities performed with or through our Service and/or your User Account.
If you use a username and password to log-in to the Service, you agree to maintain your username and password in absolute confidentiality and refrain from disclosing them to others. You are prohibited from selling or transferring your account in any way, to another user, entity or any third party.
We reserve the right to request additional information to verify your identity, during the registration process, throughout your use of the Service, or when you submit requests related to your User Account on the Service. If you fail to provide us the requested information, we reserve the right to suspend or terminate your account, pursuant to these Terms.
At any time, you may change your personal preferences and the way you use the Service, by using the tools provided therein and on your personal account, as may be available from time to time.
5.- THIRD PARTY PLATFORMS
When you login in to Third Party Platforms through the App, you are allowing us access to some of your personal information on such Platforms. We can only access the information that your Third Party Platform makes available to us, according to your privacy settings on such services and the authorizations you granted us. Only you can initiate and control the access to your Third Party accounts and the actions engaged in them through this App. We do not and will not store your accounts’ password.
We may also ask you to provide us with details such as gender, height, weight and other attributes that define you as a user, such as information regarding your day to day behavior (sleep, location, movement, calendar activities etc.) and the relevant authorizations to allow you to use the Service via these and other Third Party Platforms. We may do so directly through those Third Party Platform’s API, or otherwise, at our sole discretion. You must submit only true, accurate and complete details. Bear in mind that false, incorrect or outdated information will impair our ability to provide you with our Services and contact you.
We may offer you the option to integrate one of your devices with our Service. Our Service supports many devices, including but not limited to: FitBit, Garmin, Strava, Nokia (Witthings), iGlucose, iHealth, Polar, MisFit, UnderArmour and Omron. We use the API integration service provided by Validic to enable our Service to integrate with your device.
In connection with the Services, we may provide you with Brook-Supplied Devices that monitor your health and automatically uploads physiologic information about you to us and/or your Provider. Brook-Supplied Devices are pre-configured to supply your physiologic information to us and/or your Provider. Information that we and/or your Provider receives from Brook-Supplied Devices will be considered Content. You shall not use a Brook-Supplied Device for any purpose except in connection with the Services.
7.- USER ACCOUNT SUSPENSION AND TERMINATION
In addition to any remedies that may be available to us under any applicable law, we may temporarily or permanently deny, limit, suspend, or terminate your User Account, prohibit you from accessing the Service and take technical and legal measures to keep you off the Service, if the Company determines, at its sole discretion that:
You have abused your rights to use the Service; or,
You have breached the Terms; or,
You have breached a Manufacturer User Agreement; or
You have performed any act or omission that violates any applicable law, rules, or regulations; or,
You have performed any act or omission which is harmful or likely to be harmful to the Company, or any other third party, including other users and providers of the Service; or,
You used of the Service to perform an illegal act, or for the purpose of enabling, facilitating, assisting or inducing the performance of such an act; or,
You have abandoned your account for more than six (6) months since your last use of the Service; or,
You deliberately submitted false information or have failed to comply with our requests for information regarding your identity; or,
You conveyed your password or User Account details to another person or entity.
Upon termination of these Terms or your User Account, for any reason:
Your right to use the Service is terminated and you must immediately cease using the Service and uninstall the App from all mobile devices in your possession or control; and,
We reserve the right (but have no obligation) to delete all of your information and account data stored on our servers; and,
We will not be liable to you or any third party for termination of access to the Service or for deletion of your information or account data.
8.- ACCEPTABLE USE OF THE SERVICE
The following clauses define the acceptable use of the Service. Subject to the Terms, you may access and use the Service and the features provided through the Service, for your personal and non-commercial purposes.
You agree to abide by all applicable local and international laws, regulations, rules and any usage guidelines that we may convey from time to time. You further agree that you are solely responsible for all acts or omissions associated with your access and use of the Service and the access and use of the Service by anyone on your behalf. When using the Service, you must to refrain from:
Breaching the Terms or any other applicable rules and instructions that we may convey with respect to the use of the Service;
Engaging in any activity that constitutes or encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law;
Interfering with, burdening or disrupting the functionality of the Service;
Breaching the security of the Service or identifying any security vulnerabilities in it;
Circumventing or manipulating the operation or functionality of the Service, or attempting to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Service;
Using or launching any automated system, including robots, crawlers and similar applications to collect or compile content from the Service, or in such ways that may impair or disrupt the Service’s functionality;
Displaying content from the Service, including by any software, feature, gadget or communication protocol, which alters the content or its design;
Impersonating any person or entity, or making any false statement pertaining to your identity, employment, agency or affiliation with any person or entity; or
Collecting, harvesting, obtaining or processing personal information of or about other users of the Service.
You may not access or use the Service in order to develop or create a similar or competitive product or service.
YOU ARE SOLELY RESPONSIBLE FOR THE CONTENT THAT YOU POST, DISSEMINATE, TRANSMIT OR OTHERWISE COMMUNICATE THROUGH, OR TO THE SERVICE, OR WHEN USING THE SERVICE AND FOR THE CONSEQUENCES ASSOCIATED WITH DOING SO.
Without derogating from any of the above, you may not post, provide or otherwise communicate through or in connection with the Service, any Content which:
May infringe rights of others, including patents, copyrights, trade secrets, trademarks, a person’s right to privacy or right of publicity;
May depict or identify minors, their personal details, their address or ways to contact them, without their legal guardians explicit consent, as well as such minors approval, when practically possible;
Is false, inaccurate, deceptive or misleading; May include software viruses, spyware or any other malicious applications;
May, through posting, publication, dissemination, or making available, be prohibited by any applicable law, including court orders;
May be threatening, abusive, harassing, defamatory, libelous, vulgar, violent, obscene or racially, ethnically or otherwise objectionable (with the understanding that reasonable use of relevant medical content is acceptable);
May include unsolicited commercial communications (“spam”), chain letters, or pyramid schemes.
We may employ technological measures to detect and prevent fraudulent or abusive use of the Service. We may suspend or terminate your account, or block your access to and use of the Service, without prior notice and at our sole discretion, if we believe that you are using the Service fraudulently or abusively.
9.- THIRD-PARTY PROFESSIONALS
The App allows you to connect directly with Professionals who are listed on the App and to communicate directly with them. We do not employ the Professionals directly and your engagement with Professionals is done directly with them through the App. We allow various Professionals to be listed on the App after they have provided us with their professional credentials and our App will assist you in connecting and communicating with Professionals. However, we do not control the Professionals and we assume no responsibility for the quality of their services or any advice they may give you. We do not make any representation or warranty with respect to the Professionals’ services or anything that they communicate to you.
Prior to onboarding and listing a Professional on the App, we review the Professional’s credentials and qualifications for the Professional’s respective profession. However, we cannot guarantee the accuracy or veracity of the information provided to us by a Professional. When you engage a Professional, your relationship is directly with the Professional. Our App only assists you in facilitating your communications with the Professional, and we do not provide you with any professional, medical or therapeutic advice or counseling. You also acknowledge and understand that your communications with a Professional are not a substitute for and are not intended to replace any treatment or medical advice you may be receiving from your physician or healthcare provider. You further acknowledge and agree that in order to facilitate your communication with a Professional, it may be necessary to share your personal information with the Professional and by opting to engage with a Professional, you consent to the sharing of your personal information with the Professional.
11.- FEE-BASED SERVICES
Fee-Based Service. The Service may be subject to subscription fees at the rates and schemes determined according to the plan you selected and whose details were presented to you when you registered for the Service (the "Subscription Plan"). You must pay for the Subscription Plan you selected through one of the payment methods we establish from time to time and provide for you to use in the App. By providing us with payment information for a payment method, you confirm that your selected payment method will be charged for the applicable fees. You are responsible for any commission or surcharges introduced by your selected payment method. However, if your Insurer or Provider has contracted with us, you may be eligible to select a Subscription Plan and/or receive the Services at no cost to you. Your eligibility for a free Subscription Plan or no-cost receipt of Services will be determined and presented to you at the time of your registration to the Service.
Free Trial and Automatic Subscription Plan Renewals. The Subscription Plan is a periodic subscription plan that automatically renews at the end of each subscription period, unless you cancel your subscription before the subscription renews. By selecting a Subscription Plan, you agree that your Subscription Plan will be automatically renewed, and unless you cancel your subscription, you authorize us to charge your payment method for the renewal term. When you first select your Subscription Plan, we may provide you with a thirty (30) days free trial option to use the App and the features provided to you through the Subscription Plan you selected ("Free Trial"). If you were provided with a Free Trial, your payment method will be charged at the end of your Free Trial unless you cancel your Subscription Plan before the end of the Free Trial. Subsequently, your payment method will be automatically charged at the beginning of each subscription period. You must keep the billing information you provided to us upon registration current, complete, and accurate, and notify us promptly in case of any change in your billing information.
Currency and Taxes. All Subscription Plans are quoted and charged in U.S. Dollars. Sales tax and other taxes may apply to your Subscription Plan. Where taxes apply, we will use best efforts to add them to your checkout amount and seek your confirmation to the total amount due, including taxes. However, we cannot guarantee the accuracy of the tax amount presented to you. If we later determine that we have under-collected taxes on your Fee-Based Service, we reserve the right to charge you for any under-collected amount.
No Refunds. Unless otherwise mandated by law, all your payment obligations are non- cancelable, and all amounts paid in connection therewith are non-refundable by us. You are solely responsible for paying all applicable fees for the Subscription Plan that you subscribed for, whether you used or benefited from the Service.
Failing to Pay. If you fail to settle your payments that are due for the Fee-Based Service, we may discontinue and block your use of the Service, without regard to any other remedies available to us under applicable law.
12.- INTELLECTUAL PROPERTY
All rights, title and interest in and to the Service (except – as provided below with respect to users and third parties content), including, without limitation, patents, copyrights, trademarks, trade names, service marks, trade secrets and other intellectual property rights, and any goodwill associated therewith, are owned by, or licensed to the Company.
Unless otherwise expressly permitted in the Terms, you may not copy, distribute, display or perform publicly, sublicense, decompile, disassemble, reduce to human readable form, execute publicly, make available to the public, adapt, make commercial use, process, compile, translate, sell, lend, rent, reverse engineer, combine with other software, modify or create derivative works of any of the content on the Service, which is subject to intellectual property rights or other proprietary rights, either by yourself or by a third party on your behalf, in any way or by any means, including, but not limited to electronic, mechanical or optical means, without prior written authorization from the Company.
You may not adapt or use otherwise any name, mark or logo that is identical, or confusingly similar to the trademarks, services marks and logos of the Company. You must refrain from any action or omission which may dilute, or tarnish our goodwill.
WE DO NOT CLAIM OWNERSHIP OVER CONTENT THAT YOU CREATE, UPLOAD, DISSEMINATE OR OTHERWISE MAKE AVAILABLE THROUGH THE SERVICE. WHEN YOU USE THE SERVICE TO DO THIS, YOU REPRESENT AND WARRANT TO US THAT:
YOU ARE THE RIGHTFUL OWNER OF ALL RIGHTS TO SUCH CONTENT OR ARE LAWFULLY LICENSED BY ALL THE RIGHTFUL OWNERS TO UPLOAD, DISSEMINATE OR OTHERWISE MAKE AVAILABLE SUCH CONTENT ON THE SERVICE;
YOU ARE LAWFULLY ENTITLED TO GRANT US THE LICENSES IN AND TO SUCH CONTENT, AS CONTEMPLATED BY THESE TERMS;
USING THE CONTENT, UPLOADING, DISSEMINATING OR OTHERWISE MAKING THE CONTENT AVAILABLE THROUGH THE SERVICE, DOES NOT INFRINGE ON ANY RIGHTS OF THIRD PARTIES, INCLUDING INTELLECTUAL PROPERTY RIGHTS, PRIVACY RIGHTS AND PUBLICITY RIGHTS.
By uploading Content, including data, images and text to the Service, including any and all communications that you make with us on or through the Service, you grant the Company a royalty-free, worldwide, non-exclusive, perpetual and irrevocable license, to copy, distribute, display publicly, decompile, disassemble, reduce to human readable form, execute publicly, make available to the public, adapt, sub-license, make commercial use, process, compile, translate, sell, lend, rent, reverse engineer, combine with or incorporate into other content, modify and create derivative works on the Service, and in other communication and information networks, platforms, applications and services. You further waive all rights of attribution with respect to the use of your Content.
13.- CHANGES IN THE SERVICE AND DISCONTINUATION
We may, but are not obligated to, maintain the Service with periodic releases of bug fixes, code updates or upgrades. We will determine, in our discretion, the frequency and scope of such releases and you will have no plea, claim or demand against us or our directors, officers, employees, agents, advisors, consultants, subcontractors and assignees (collectively, our "Staff"), for any of these releases or the lack thereof.
You grant us your express consent to remotely send and automatically install on your mobile device, without any prior or additional notice, updates, upgrades, code modifications, enhancements, bug fixes, improvements and any other form of code or settings changes in or to the App, which, among other things, may change the App’s settings, layout, design or display.
We may also, at any time and without prior notice, change the layout, design, scope, features or availability of the Service. Such changes, by their nature, may cause inconvenience or even malfunctions. YOU AGREE AND ACKNOWLEDGE THAT WE DO NOT ASSUME ANY RESPONSIBILITY WITH RESPECT TO, OR IN CONNECTION WITH THE INTRODUCTION OF SUCH CHANGES OR FROM ANY MALFUNCTIONS OR FAILURES THAT MAY RESULT THEREFROM.
We may, at any time, at our sole discretion, discontinue, terminate or suspend the operation of the Service, or any part or aspects thereof, temporarily or permanently, without any liability to you. We are not obligated to give any notice prior to such change, discontinuation or suspension.
You agree to regard and retain as confidential and not divulge to any third party, or use for any unauthorized purposes either during or after your use of the Service any Confidential Information, as defined below, that you acquire during your access and use of the Service, without the written approval consent of the Company. Without limiting the scope of this duty, you agree not to design or develop any products or services, which incorporate any Confidential Information. All Confidential Information remains the property of the Company and no license or other rights in the Confidential Information is granted hereby.
"Confidential Information" shall include, but will not be limited to, information regarding research and development related to the Service, inventions, whether patentable or non- patentable, discoveries, innovations, designs, drawings, sketches, diagrams, formulas, computer files, computer programs, hardware, App screenshots, software, manuals, selection processes, data, planning processes, trade secrets, business secrets, business plans, copyrights, proprietary information, processes, formulae, know-how, improvements and techniques and any other data related to the Service and its users. Confidential Information will include information in written, oral and/or any other form of communication.
15.- SERVICE SUPPORT, AVAILABILITY AND QUALITY
The availability, quality and functionality of the Service depends on various factors, including software, hardware, communication networks, and the quality of cellular/WiFi network connectivity, which are provided by third parties, at their responsibility. These factors are not fault-free.
WE DO NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT DISRUPTION, ERRORS OR INTERRUPTIONS, OR THAT IT WILL BE ACCESSIBLE, OR AVAILABLE AT ALL TIMES OR IMMUNE FROM ERRORS, GLITCHES OR UNAUTHORIZED ACCESS.
We may, but are not obligated to, offer technical support in connection with your use of the Service, in the format, frequency, scope and scheme that we, at our sole discretion, determine from time to time. You will have no plea, claim or demand against us or our Staff in any matter related to our provision of technical support, or for the lack thereof.
16.- CHANGES TO THE TERMS
We may amend the Terms from time to time. In such case, we will notify you of the amended Terms, through the App. If you do not accept the amended Terms, we may terminate the Terms and your User Account and block your access to, and use of the Service. Your continued use of the Service after the effective date of the amended Terms constitutes your consent to the amended Terms. The latest version of the Terms will be accessible through the App.
17.- DISCLAIMER OF WARRANTY
THE SERVICE IS PROVIDED FOR USE "AS IS" AND "WITH ALL FAULTS". WE AND OUR STAFF DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, THE APP, THE DEVICES, THE USER SUBMISSIONS, THE CONTENT, YOUR USER ACCOUNT, ANY INTERACTION RELATED TO THE SERVICE, ANY COMMUNICATION MADE BY THE SERVICE AND THIRD PARTY PLATFORMS.
WE AND OUR STAFF DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, RELIABILITY, NON-INFRINGEMENT, TITLE, COMPATIBILITY, PERFORMANCE, AVAILABILITY, SAFETY, SECURITY OR ACCURACY – REGARDING THE SERVICE. YOU ACKNOWLEDGE AND AGREE THAT THE USE OF THE SERVICE IS ENTIRELY, OR AT THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, AT YOUR OWN RISK.
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE IS PROVIDED FOR GENERAL KNOWLEDGE ONLY. THE SERVICE IS NOT, AND YOU MUST NOT DEEM OR REPRESENT IT TO BE, A SUBSTITUTE FOR QUALIFIED PROFESSIONAL MEDICAL, PARAMEDICAL OR PHARMACEUTICAL ADVICE, DIAGNOSIS OR TREATMENT. ALWAYS SEEK THE ADVICE OF A PHYSICIAN OR QUALIFIED HEALTH CARE PROFESSIONAL FOR ANY MEDICAL OR HEALTH RELATED ISSUES.
18.- LIMITATION OF LIABILITY
WE AND OUR STAFF SHALL NOT BE LIABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, STATUTORY, INCIDENTAL OR CONSEQUENTIAL DAMAGE, OR ANY SIMILAR DAMAGE OR LOSS (INCLUDING LOSS OF PROFIT AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY, ARISING FROM, OR IN CONNECTION WITH THE SERVICE, THE DEVICES, THE USE OF OR THE INABILITY TO USE THE SERVICE OR YOUR USER ACCOUNT, ANY COMMUNICATION OR INTERACTIONS WITH THE SERVICE OR IN CONNECTION WITH THIRD PARTY PLATFORMS OR DEVICES, YOUR RELIANCE UPON OR THE EXPECTED OUTCOME FROM ANY INFORMATION AVAILABLE ON THE SERVICE OR DEVICES, ANY FAILURE, ERROR, OR BREAKDOWN IN THE FUNCTION OF THE SERVICE OR DEVICES, ANY FAULT, OR ERROR MADE BY OUR STAFF, OR FROM ANY DENIAL OR CANCELATION OF YOUR USER ACCOUNT, OR FROM RETENTION, DELETION, DISCLOSURE AND ANY OTHER USE OR LOSS OF YOUR CONTENT ON THE SERVICE. YOU ACKNOWLEDGE AND AGREE THAT THE USE OF THE SERVICE IS ENTIRELY, OR AT THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, AT YOUR OWN SOLE RESPONSIBILITY. OUR TOTAL LIABILITY FOR CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS IS LIMITED TO THE GREATER OF (1) ONE THOUSAND AND NO/100 DOLLARS ($1,000) OR (2) THE TOTAL AMOUNT OF THE FEES THAT YOU PAID TO USE THE RELEVANT SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE DATE SUCH CLAIM WAS FILED.
To the maximum extent permitted by law, you agree to indemnify, defend and hold harmless, us and our Staff, at your own expense and immediately after receiving a written notice thereof, from and against any damages, loss, costs and expenses, including attorney's fees and legal expenses, resulting from any plea, claim, allegation or demand, arising from, or in connection with your use of the Service, the Devices, any Content, or Information, or from your breach of the Terms. You are solely responsible for Content you provide and communicate through the Service, and for all consequences associated with it.
20.- APPLICATION MARKETPLACE
The following terms apply if you downloaded the App from an App Store (as defined below). You and the Company agree and acknowledge as follows:
With respect to any App accessed through or downloaded from the Apple App Store, Google Chrome Web Store, Google Play marketplace or any similar store or marketing place (each, an “App Store ” and references to an App Store include the corporate entity and its subsidiaries making such App Store available to you), you agree to comply with all applicable third party terms of the relevant App Store (e.g. Apple App Store’s Usage Rules) (the “Usage Rules“).These Terms are concluded between yourself and the Company, and not with the App Store. The App Store is not responsible for the App. In the event of a conflict between these Terms and the Usage Rules set forth for the applicable App or the App Store Terms of Service as of the Effective Date (that is when you indicated your agreement to be bound by these Terms, by clicking the appropriate button), the Usage Rules or the App Store Terms of Service will prevail. If any provision of these Terms is less restrictive than the corresponding provision of the Usage Rules or the App Store Terms of Service, the Usage Rules or the App Store Terms of Service will prevail.
You may use the App on your smartphone or tablet device that you own or control. The smartphone or tablet device provider has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
Neither the App Store nor the smartphone or tablet device provider is responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including: (i) product liability claims, (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation.
In the event of any third party claim that the App or your possession and use of the App infringes that third party’s IP Rights, neither the App Store nor the smartphone or tablet device provider will be responsible for the investigation, defense, settlement and discharge of any such infringement claim.
Apple Inc. (“Apple”) and its subsidiaries are third party beneficiaries of these Terms. Upon Your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
If you downloaded an App from a different application marketplace, other third parties may be beneficiaries of these Terms, pursuant to those marketplace’s terms. Such other third parties are not responsible for providing maintenance and support services with respect to the App.
21.- COMMERCIAL INFORMATION
We may incorporate in the Service advertisements and/or information of commercial nature. The source of such information may originate from us or from third parties. If such information originates from third parties, we cannot guarantee its reliability or accuracy. It is underscored that the advertising of commercial content by the Company does not constitute a recommendation or encouragement to procure the goods or services advertised. We may allow advertisers to use the Service to conduct surveys and/or approach the Service’s users with questions of commercial nature.
The Service may contain links to content published on websites or external sources, provided by third parties. We do not operate, or monitor these websites and content. You may find them or the information and content posted therein not compatible with your requirements, or you may object to their content, or find such content to be annoying, improper, unlawful or immoral. By linking to a certain website or source, we do not endorse, or sponsor its content, or confirm its accuracy, credibility, authenticity, reliability, validity, integrity, or legality. We assume no responsibility or liability for such third party websites or content, or their availability.
23.- TERMINATION OF THESE TERMS
You may, at any time terminate these Terms and your User Account by doing all the following:
Completely removing the App from all of your Devices; and
We may terminate these Terms and your license to use the Service, at any time, by issuing you a notice of such termination, blocking your access to and use of the Service, or in any other manner contemplated by these Terms. Upon termination by us, you must discontinue any and all use of the Service and uninstall the App from all of your Devices.
24.- GOVERNING LAW & JURISDICTION
Regardless of your place of residence or where you access or use the Service from, these Terms and your use of the Service will be exclusively governed by and construed in accordance with the laws of the State of Washington, USA, excluding any otherwise applicable rules of conflict of laws, which would result in the application of the laws of a jurisdiction other than the State of Washington.
Before submitting any dispute, claim, or controversy arising out of, in connection with or relating to these Terms, to court, you and us will dedicate at least two weeks to attempt to amicably resolve such matter in an informal dispute resolution process. However, nothing herein shall, in any way, affect either party's right to seek interim or emergency relief in the court of competent jurisdiction, or our right to lodge a claim against you pursuant to the indemnity clause above, in any court adjudicating a third party claim against us – all, without referring the matter to amicable resolution pursuant to the foregoing.
Any dispute in connection with the Service or these Terms, that you and the Company are unable to amicably resolve, shall be submitted to the sole and exclusive jurisdiction and venue of the Washington State Courts located in King County, Washington, and the U.S. Federal District Court for the Western District of Washington. You and the Company hereby expressly consent to the exclusive personal jurisdiction and venue of such courts, and waive any objections related thereto including objections on the grounds of improper venue, lack of personal jurisdiction or forum non conveniens.
YOU AND THE COMPANY, EACH IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICE, EXCEPT IN THE EVENT THAT WE LODGE A CLAIM AGAINST YOU PURSUANT TO THE INDEMNITY CLAUSE ABOVE AND THE THIRD PARTY CLAIM AGAINST US IS BEING ADJUDICATED IN A TRIAL BY JURY.
Whenever used in these Terms, the term “Including”, whether capitalized or not, means without limitation to the preceding phrase. All examples and e.g. notations are illustrative, not exhaustive.
These Terms constitute the entire agreement between you and us concerning the subject matter herein, and supersede all prior and contemporaneous negotiations and oral representations, agreements and statements. These Terms may only be modified by written amendment duly executed by us. No waiver, concession, extension, representation, alteration, addition or derogation from the Terms by us, or pursuant to the Terms, will be effective unless consented to explicitly and executed in writing by our authorized representative.
Failure on our part to demand performance of any provision in the Terms shall not constitute a waiver of any of our rights under the Terms.
You may not assign or delegate these Terms or any of your rights, performances, duties or obligations hereunder. Any purported assignment or delegation, in contravention of the above, will be null and void. In the event of a Company merger, acquisition, change of control or the sale of all or substantially all of our equity or assets, we may, upon notice to you and without obtaining your consent, assign and delegate these Terms, in their entirety, including all of our rights, performances, duties, liabilities and obligations contained herein, to a third party. With such assignment, transfer and delegation, we are irrevocably and fully released from all rights, performance, duties, liabilities and obligations under these Terms.
The section headings in the Terms are included for convenience only and shall take no part in the interpretation or construing of the Terms.
If any provision of the Terms is held to be illegal, invalid, or unenforceable by a competent court, then the provision shall be performed and enforced to the maximum extent permitted by law to reflect as closely as possible, the original intention of that provision, and the remaining provisions of the Terms shall continue to remain in full force and effect.
At any time, you may contact us with any question or complaint that you may have with respect to the Service, at: firstname.lastname@example.org