THIS IS A LEGAL DOCUMENT. YOU MUST READ THE ENTIRE AGREEMENT AND AGREE TO BE BOUND BY IT BEFORE YOU USE THE AYBLE HEALTH PLATFORM. IF YOU DO NOT AGREE TO ALL THE TERMS BELOW, DO NOT USE THE AYBLE HEALTH PLATFORM.
Please read this End User License Agreement (the “Agreement”) carefully, as it sets forth the terms and conditions of the contract between you (“You” or “Client”) and Ayble Health, Inc., a Delaware limited liability company (“Ayble Health”). This Agreement governs your use of the Ayble Health Platform.
IMPORTANT – READ CAREFULLY THIS NON-LIMITING SUMMARY OF CERTAIN KEY TERMS OF THIS AGREEMENT, EACH OF WHICH YOU MUST READ IN FULL:
- You must be at least 18 years of age and a citizen of the United States to use the Platform;
- You agree to use the Platform and related data solely for your own, personal, non-commercial purposes and solely in connection with the services provided by Ayble Health;
- You agree not to reverse-engineer, copy, or disseminate any information related to the Platform or how it operates and to use the Platform solely in a manner intended by Ayble Health;
- You agree that this Agreement, and Your license to use the Platform, may be terminated or revised at any time for any reason by Ayble Health;
- You agree that Ayble Health will be entitled to an immediate injunction or other equitable relief against You, and all of its attorneys’ fees and other expenses, in connection with enforcing Ayble Health’s intellectual property, computer code, source code, confidential information, or trademarks;
- You acknowledge and agree that no medical advice is provided by the Platform and that no doctor-patient or provider-patient relationship is or will be created;
- You agree to use the Platform at your own risk, that the Platform is provided as-is without any warranty or representation, and that the Platform is subject to the limitations of liability set forth herein;
- You agree that Ayble Health has no responsibility for any third-party products, services, software, functionality, or content that may be incorporated into or used with the Platform; and
- You agree to the restrictions set forth herein on your use of or access to the Platform and to indemnify, defend, and hold harmless Ayble Health in connection with any claims relating to your use of the Platform.
You agree to be bound by the terms of this Agreement (including all incorporated agreements and policies) by accessing the Platform, opening and accessing the App, logging into the Site (defined below) as a user, or clicking the “Agree” button. The term (“Term”) of this Agreement will commence when you first do any of the foregoing. And You reaffirm Your agreement each time You do any of the foregoing.
If You do not agree to these terms, do not use the Platform (not even as a trial use) and close out of and delete all instances of the App and disconnect all Your devices from the Platform.
If You decline these terms prior to, or within 24 hours of, your first use of the Platform, You may seek a refund of any fees paid prior to such first use.
This Agreement does not apply to any other services of Ayble Health, including but not limited to, your participation in research conducted by Ayble Health or coaching services provided by Ayble Health in connection with the Platform, which are subject to separate terms and conditions.
This Agreement is a legal document. The terms and conditions apply to the following, each of which constitute part of the “Platform”:
- the Ayble Health website available at www.ayblehealth.com (the “Site”)
- the Ayble Health application (“App”);
- all databases, algorithms, third-party integrations, and other functionality to which the App and Site are connected;
- all text, images, graphics, sounds, audio, music, videos, audiovisual combinations, blogs, social media, interactive features, collections or other material. You may view on or access through the Platform (“Content”);
- all computer software (including but not limited to, algorithms, source code, object code, compilation code or software, build tools or data, data structures, databases, firmware, hardware, and any related data, information or code as well as all updates, patches, data or new versions of the Platform);
- data input to or via the Platform, stored in connection with the Platform, related to the Platform, modified by the Platform, transmitted by the Platform, or exported in any way (e.g., printing, creating documentation or reports from, or displaying) from the Platform;
- the operation and layout off the Platform, including but not limited to, the manner and process by which information is input, stored, displayed, analyzed, presented or otherwise processed;
- the look and feel of the Platform (e.g., icons, colors, screen layout, and graphical user interface or GUI);
- instructions, documentation, and other materials describing or associated with the Platform;
- legal notices; and
- the information regarding your account registration on the Site or Platform (“Registration”).
For the avoidance of doubt, any reference to the “Platform” in this Agreement includes the entire Platform as well any portion of the Platform.
You represent and warrant that:
- all information You submit to Ayble Health or the Platform is and will be true and accurate;
- You will not use or rely upon the Platform or any Service of Ayble Health for the purposes of obtaining medical advice;
- You are 18 years of age or older and a citizen of the United States;
- You will use the Platform only as intended by Ayble Health;
- You have read all terms and disclaimers set forth in this Agreement prior to using the Platform and Agree to be bound by the terms of thisAgreement; and
- You will not use Platform, or submit information to the Platform, in violation of any law or rights of any other person or entity.
The Platform is offered for informational purposes only for You to guide Your self-management of Your digestive wellbeing.
The Platform is not a substitute for any medical advice or for a doctor-patient or provider-patient relationship.
If You have concerns about any medical condition, diagnosis, or treatment, You should personally consult a licensed healthcare provider. In the case of a medical emergency, You should call 911 immediately.
No use of the Platform creates or constitutes a doctor-patient or provider-patient relationship between You and Ayble Health. By using the Platform, You explicitly acknowledge that You understand Your use of the Platform does not create a doctor-patient or provider-patient relationship between You and Ayble Health. Your use does not create any duty for Ayble Health to follow up with You about any medical condition, diagnosis, or treatment or any other duty related to your health or wellness.
The Platform does not provide any licensed services. Nothing on the Platform is intended to, or does, constitute the practice of medicine, dietetics, or similar licensed activities. Although the Platform allows Clients to track eating patterns and food intake, and any related digestive effects, the Platform does not diagnose, treat, cure, or prevent any condition or illness.
You agree to use the Platform at your own risk. Ayble Health does not warrant the accuracy, timeliness, sufficiency, effectiveness, or suitability of any advice, suggestion, comment, or other content made or used in connection with the Platform.
The Platform may use or incorporate third-party products or software, including but not limited to, third-party software or fitness wearables or at home testing kits (“Third-Party Services or Products”). Ayble Health is not responsible in any manner for any Third-Party Services or Products. Ayble Health does not warrant the accuracy, timeliness, sufficiency, effectiveness, or suitability of any Third-Party Services or Products, which you use at your own risk. You agree that You have no recourse against Ayble Health for any claim or loss arising out of or related to any Third-Party Service or Product. Claims against third-parties in connection with Third-Party Services or Products must be brought against the applicable third-party (e.g., the manufacturer or provider of such service) and not Ayble Health.
For the avoidance of doubt, the mere inclusion of links to any third-party website in or with the Platform does not create or imply any affiliation between Ayble Health and such website.
Certain software included in, distributed with, or downloaded in connection with the Platform may comprise third-party proprietary software or code that is subject to separate license terms (“Third-Party Software”). All such Third-Party Software may comprise or include software or software components that are derived, in whole or in part, from software that is distributed as free software, open source software, or under similar licensing or distribution models (collectively, “External Software”).
Your use of External Software is subject in all cases to the applicable licenses from the applicable External Software providers, which will take precedence over the rights and restrictions granted in this Agreement solely with respect to such External Software and solely to the extent required by such licenses. You will comply with the terms of all applicable External Software licenses, if any. For example, copyrights to open source software are held by their respective copyright holders indicated in the copyright notices in the corresponding source files. The Software may include software developed by the OpenSSL Project for use in the OpenSSL Toolkit(http://www.openssl.org/).
FOR THE AVOIDANCE OF DOUBT, AYBLE HEALTH PROVIDES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO SUCH EXTERNAL SOFTWARE, INCLUDING BUT NOT LIMITED TO, WITH RESPECT TO FUNCTIONALITY OF SUCH EXTERNAL SOFTWARE.
Ayble Health does not provide any warranty, maintenance, technical, or other support for any External Software. Accordingly, Ayble Health is not responsible for Your use of any External Software or any personal injury, death, property damage (including, but not limited to, to Your home),or other harm or losses arising from or relating to Your use of any External Software.
Ayble Health or the Platform may ask general questions about You and gather information about You in order to provide the Service (defined below). Some of that information may constitute personally identifiable information, sensitive information, or protected health information (“PHI”). You agree not to use, provide, transmit, store, or disclose any such information unless and until specifically asked for it. Ayble Health is not responsible for, and has no duty to, learn whether You provide, transmit, store, or disclose any personally identifiable or sensitive information or PHI while using the Platform.
If You use, provide, transmit, store, or disclose any such personally identifiable or sensitive information or PHI in connection with the Platform, You agree to, assumed and payable on demand, indemnify, defend, and hold harmless Ayble Health against any Claim or Loss (defined below) resulting from, arising from, or in connection with such use, provision, transmission, storage, or disclosure of personally identifiable or sensitive information or PHI.
The Platform is neither intended nor designed for persons under the age of 18. Ayble Health does not knowingly collect or solicit personally identifiable information from any person known by Ayble Health to be a person under the age of 18. Should Ayble Health inadvertently come to possess personally identifiable information about a person under the age of 18, Ayble Health will not knowingly disclose contact information relating to a person under the age of 18 to any third-party.
Certain features associated with the Platform use internet protocols and may send to the appropriate systems computer information, such asYour internet protocol address; the type of operating system, browser, and name and version of the software You are using; or the language code of the device where You installed or access the Platform. Ayble Health or its designees may use this information to make the internet-based services available to You.
During the period of time when You maintain an active, paid-up account with Ayble Health and contingent at all times upon Your compliance with the terms of this Agreement: Ayble Health conveys to You a limited, non-exclusive, personal, freely revocable right to access the Platform in object code or executable form only and solely for internal, personal, and non-commercial purposes (the “License”).
The Platform is proprietary to Ayble Health and its licensors.All right, title, and interest in and to the Platform, including but not limited to all intellectual property and all other legal rights, titles, and interests, do and will remain with Ayble Health and its licensors. For the avoidance of doubt, and by non-limiting example, You acknowledge and agree that the source and object code of the Platform and the format, directories, queries, databases, algorithms, structure, and organization of the Platform are the intellectual property and proprietary and confidential information of Ayble Health and its licensors only. All rights not expressly granted under this Agreement are reserved to Ayble Health and its licensors.
Neither this Agreement, nor any rights or obligations provided in it, constitutes a sale or other transfer of any right, title, or interest in or to the Platform or any portion thereof.
All trademarks, service marks, trade names, logos, slogans or other identifiers of source—and the goodwill associated therewith—included or displayed in or around the Platform (“Marks”) are the exclusive property of Ayble Health with the exception of third-party marks expressly identified by Ayble Health as the property of another third-party. You are not permitted to use any of the Marks, or any third-party mark, without the prior written consent of Ayble Health.
Persons under the age of 18 or that are not citizens of theUnited States are not authorized to use, input data into, or interface in anyway with the Platform, and You will not permit any such person to do so.
You may not do or attempt to do, have done, or assist, encourage, or induce others to do any of the following:
- access or use the Platform other than as specifically set forth in this Agreement or allow any other person or entity other than You to access or use the Platform;
- attempt to use the Platform for Your or Your company’s gain independent of Ayble Health or as otherwise not in furtherance of the interests of Ayble Health;
- use the Platform for any advertising purpose or submit any advertisement or solicitation through or to it;
- reverse engineer, decompile, disassemble, or access any portion of the Platform;
- alter, copy, download, scrape, remove, or acquire any data in, or associated with, the Platform, including but not limited to, accessing, using, or copying any portion of the Platform using automated mechanisms, such as bots, spiders, scrapers, web crawlers, or indexing agents;
- reproduce, publicly display, publicly perform, download, use, copy, modify, reconfigure, divide, create derivative works of, sublicense, or distribute any portion of the Platform;
- remove or modify any markings, notices of rights, or Marks;
- make the Platform available in any manner to any third-party for use in the third-party’s business operations or otherwise, including but not limited to, re-hosting or using the Platform on equipment, operating systems, or platforms not approved by Ayble Health;
- transmit to the Platform any information that contains any viruses or other computer programming routines that may damage, interfere with, intercept, or take any system or data associated with the Platform;
- send to or otherwise impose an unreasonably large amount of information or requests to the Platform;
- use the Platform in any way that violates any applicable federal, state, local, or international law or regulation (including but not limited to, any laws regarding the export of data or software to and from the US or other countries);
- use the Platform for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise;
- use the Platform to send, knowingly receive, upload, download, use, or re-use any material that does not comply with this Agreement or any other rights or obligations of a third-party;
- use the Platform to transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including but not limited to, any “junk mail,” “chain letter,” “spam,” or any other similar solicitation;
- use the Platform to impersonate or attempt to impersonate any person or entity other than Yourself, including but not limited to, Ayble Health, an Ayble Health representative, any other Client, or any other person or entity (including but not limited to, by using email addresses or login credentials associated with any of the foregoing);
- engage in conduct that is harmful, unethical, fraudulent, deceptive, or offensive; or
- use the Platform to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Platform, or that may harm Ayble Health or its users or Clients, or expose any of the foregoing to reputational harm or liability.
The Platform is not open to Clients who live in countries that are prohibited by law, regulation, treaty, or administrative act from entering into trade relations with the United States. It is solely Your responsibility to determine if You may lawfully use the Platform in any particular country or jurisdiction.
Unless terminated as provided in this section 15, and subject to any update or modification as set forth in this section, the terms of this Agreement will continue in perpetuity.
You agree that Ayble Health may revise, update, or change this Agreement at any time in its sole discretion. Updates may be posted publicly on the Site or other operative website of Ayble Health or distributed to You via the Platform or other means. If there is any ambiguity as to which version of this Agreement applies, You agree that the terms of the most recent version will apply by default to the entire time of your use of the Platform.
You agree that Ayble Health may issue additional policies related to the Platform.
Ayble Health will have the right to terminate this Agreement for any reason at any time in its sole and complete discretion.
Additionally, by way of non-limiting example, Your right to access the Platform and your account will terminate upon Your failure to comply with any term or condition of this Agreement, Your unlawful use of the Platform and any Ayble Health Service, or Your abusive conduct involving the Platform that is outside the normal contemplated use thereof. The foregoing includes any acts induced by You, contributed to by You, or conducted with your participation, direction, or assent. Upon termination of the License granted herein, You must cease all use of the Platform and destroy all copies (physical or electronic)of any portion of the Platform (including but not limited to, the App and all component parts and copies thereof and all related materials, data, and documents) and certify to Ayble Health, if so requested by Ayble Health, that all the foregoing have been so destroyed.
The License to You will immediately terminate upon Your breach of any term of the Agreement, unless such breach is curable and is actually and immediately cured by You, which will be determined in Ayble Health’s sole and complete discretion. These remedies are cumulative and in addition to any other remedies available to Ayble Health.
All terms of Sections 5, 6, 7, 8, 9, 10, 12, 13, 18, 19, 21, 22, 23, 24, 25, 26, 27, and 28 as well others that by their nature are intended to or would be expected to survive, will survive termination of this Agreement.
You may be required to create an Account on Ayble Health’s Website or Ayble Health’s App. You may be asked to complete an initial questionnaire to start the collection of Self-Reported Health Information and begin using Ayble Health’s Services.
Ayble Health, in its sole and complete discretion, may terminate Your use of the Platform (including Your Registration) at any time and for any reason without notice. You agree that if Your use of the Platform is terminated pursuant to this Agreement, You will not attempt to use the Platform, including but not limited to, under any name, real or assumed.
You agree and acknowledge that Your account and Registration on the Platform is for Your use only and not for the use of any other person or entity.
You are solely responsible for Your own account activity and agree to maintain Your own secure password and not use anyone other person’s password or login credentials. You further agree not to share or sell Your password or login and to notify us if You suspect unauthorized use of Your account.
Please immediately alert Ayble Health to any unauthorized use of Your account, password, username, email, or other breaches of security. You should email Ayble Health at firstname.lastname@example.org.
YOU EXPRESSLY ACKNOWLEDGE THAT USE OF THE PRODUCT IS AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NEITHER AYBLE HEALTH NOR ITS SUPPLIERS, DISTRIBUTORS, OR CUSTOMERS, NOR THEIR RESPECTIVE AFFILIATES, OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, AGENTS OR LICENSORS (EACH A“RELATED PARTY”) MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE PLATFORM, ITS USE, OR THE RESULTS OF SUCH USE.
ALL WARRANTIES AND CONDITIONS OF ANY KIND, PAST OR PRESENT, WHETHER STATUTORY, COMMON-LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE,INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
UNDER NO CIRCUMSTANCES WILL AYBLE HEALTH OR ANY RELATED PARTY BE LIABLE UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STATUTORY, OR OTHERWISE) FOR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR STATUTORY OR CIVIL PENALTIES OF ANY KIND—INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF MONEY, REVENUES, PROFITS, GOODWILL, USE, DATA,OR OTHER INTANGIBLE LOSSES RESULTING FROM THIS AGREEMENT OR THE INSTALLATION,MAINTENANCE, PERFORMANCE, DEFECT, FAILURE, OR INTERRUPTION OR USE OF THE PLATFORM OR ANY PRODUCT OR SERVICE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), EVEN IF AYBLE HEALTH IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IF, NOTWITHSTANDING THESE TERMS, AYBLE HEALTH OR ANY RELATED PARTY IS FOUND TO BE LIABLE, SUCH LIABILITY (INCLUDING ANY DAMAGES OR REMEDY) IS AND WILL BE LIMITED EXCLUSIVELY TO A MAXIMUM OF TEN U.S. DOLLARS ($10.00).
Without limiting the foregoing, Ayble Health does not warrantor represent that the operation of the Platform will be uninterrupted or error-free or that any defect within the Platform will be corrected. Furthermore, Ayble Health does not warrant or make any representation regarding the results of Your use of the Platform in terms of capability, correctness, accuracy, reliability or otherwise; that the Platform will meet Your requirements; or that the Platform is secure. No presentation, specimen, information, or advice—whether oral or written—given by Ayble Health, any representative of Ayble Health, any Client, or any Community Communication will create a warranty.
For the avoidance of doubt, neither Ayble Health nor any Related Party will have liability with respect to the content of the Platform, including but not limited to, with respect to errors or omissions contained in the Platform or any claim of libel, infringement of rights of publicity, violation or infringement of any intellectual property right, violation of privacy, business interruption, personal injury, loss of privacy, violation of moral right, or disclosure of confidential information.
You release and waive all claims against the Ayble Health and any Related Party from any and all claims, damages, liabilities, costs and expenses arising out of Your use of the Platform. If You are a California resident, You waive any rights You may have under § 1542 of the California Civil Code—or any similar law or right—which reads: “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 agree to release unknown claims and waive all available rights under California Civil Code § 1542 or under any other statute or common law principle of similar effect. To the extent permitted by applicable law, this release covers all such claims regardless of the negligence of the Ayble Health or any Related Party.
Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential, or special damages or the exclusion of implied warranties or limitations on how long a given warranty may last, so the above limitations may not apply to You. The limitations provided in this Agreement are intended to apply to the fullest extent allowable under applicable law, and You acknowledge that the terms will be construed and enforced as necessary to limit Ayble Health’s and any Related Party’s possible liability to the amount set forth herein.
YOU AGREE TO, ASSUMED AND PAYABLE ON DEMAND, INDEMNIFY, DEFEND, AND HOLD HARMLESS AYBLE HEALTH AND ANY RELATED PARTY FROM AND AGAINST ANY AND ALL ALLEGATIONS, NOTICES, CLAIMS, LIABILITIES, DAMAGES,LOSSES, COSTS, EXPENSES, AND FEES (INCLUDING REASONABLE ATTORNEYS’ FEES) (“CLAIM OR LOSS”) RESULTING FROM, ARISING FROM, OR IN CONNECTION WITH YOUR USE OF THE PLATFORM; YOUR VIOLATION OF THIS AGREEMENT; OR YOUR INTERACTION WITH AYBLE HEALTH.
YOU AGREE AND ACKNOWLEDGE THAT AYBLE HEALTH WILL NOT INDEMNIFY YOU IN ANY WAY IN CONNECTION WITH THIS AGREEMENT OR THE PLATFORM, INCLUDING BUT NOT LIMITED TO, IN CONNECTION WITH AN AUTHORIZED PARTY USING YOUR ACCOUNT.
Ayble Health utilizes encryption and Secure Sockets Layer(SSL) protocol, which are provided and controlled by third-parties, for financial transactions.
Ayble Health seeks to protect sensitive personal data from unauthorized access, use, and disclosure using appropriate physical, technical, organizational, and administrative security measures based on the type of personal data and how Ayble Health processes that data. However, the Platform is subject to several factors that Ayble Health cannot control (e.g., communication lines over the internet); as such, Ayble Health cannot guarantee that the Platform will be absolutely secure.
You acknowledge and agree that the internet is neither more nor less secure than other communications media, including mail, facsimile, and telephone services—all of which can be intercepted and otherwise compromised.
You have been advised and agree to assume that all internet communications are not secure.
By providing Ayble Health with Your email address, You consent to receive unencrypted and unsecured email communications from Ayble Health. You agree that any notices, agreements, disclosures, or other communications that Ayble Health provides to You by email or other electronic means (including but not limited to, through the Platform) satisfy any legal communication requirements.
Ayble Health has the right, but not the duty, to monitor Your use of the Platform, including but not limited to, any information You provide. Any information You send to Ayble Health by email may be misdirected or intercepted by unintended recipients, and thus it may not constitute a confidential medium of communication. If You have confidentiality concerns, you will use an alternative mode of communication and not transmit any sensitive or confidential information to Ayble Health via email.
The Platform provides You the option to communicate with Ayble Health through email. This option is provided solely for Your convenience, and it may not be secure. By using email, You agree that Ayble Health is not responsible for the privacy of any email messages. Ayble Health does not warrant the confidentiality or security of any email transmission.
You are responsible for all information You send through or to the Platform. This means that You agree not to transmit information that is illegal, threatening, libelous, defamatory, obscene, ethnically or racially offensive, or discriminatory, profane, invades the rights of publicity or privacy of another person, or any other information that violates any law, confidentiality agreement, or legal right of any person or entity. Ayble Health may edit, delete, modify, or ban such information and take necessary legal action.
“Confidential Information” means any non-public information of Ayble Health that is marked or is otherwise identifiable, by its nature or the circumstances surrounding its disclosure, as confidential or proprietary at the time of disclosure and includes, but is not limited to, information related to and contained in the Platform, instructions or feedback provided by the Platform, information associated with the Ayble Health services, and software as well as business plans, sensitive information, trade secrets, know-how, inventions, techniques, data, research, developments, specifications, samples, patterns, designs, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, customer lists, personal information, financial information, strategic information, historical data or data analyses, operational information, business plans, sales and marketing plans, or other non-public information and all other information disclosed to You via the Platform. “Confidential Information” does not include any information that, without breach of this Agreement, breach of any other obligation, or other wrongful or unreasonable act (i) is or becomes a part of the public domain; (ii) based upon conclusive, documentary evidence, was known to You at the time you received it from Ayble Health; or (iii) is independently developed by You without reference the Confidential Information.
You will use Your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term of this Agreement, and at least three years after termination of this Agreement; provided, however, that You will keep confidential in perpetuity all computer code or source code, all Confidential Information stored in Ayble Health databases, and all trade secrets of Ayble Health. For the avoidance of doubt, the restrictions set forth above (including but not limited to, in section 13 (Restrictions on Use) will survive the termination of this Agreement and survive in perpetuity.
You will not use any Confidential Information other than in the ordinary course of using the Platform. You will notify Ayble Health in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by anyone and will cooperate with Ayble Health in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use.
Upon request of Ayble Health, You will promptly return (or destroy, if requested by Ayble Health) all materials incorporating any Confidential Information and any copies there of. You will not use any Confidential Information for any purpose following expiration or termination of this Agreement.
If You are legally required to disclose any of theConfidential Information, then, prior to such disclosure, You will (i) immediately notify Ayble Health prior to such disclosure to allow Ayble Health an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Ayble Health in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In all circumstances, You will disclose the Confidential Information only to the minimum extent necessary to comply with the applicable legal requirements.
Do not send Ayble Health any ideas, suggestions, materials, concepts, or other information (collectively “Information”) unless specifically requested by the Platform or Ayble Health. If You do send Information to Ayble Health, that Information will become the property of Ayble Health, and You do and will disclaim and waive any intellectual property right, and any other right or ownership, in or to such Information, including but not limited to, disclaiming and waiving all rights of publicity or privacy associated with such information. This means that Ayble Health will have unrestricted use of the Information for Ayble Health’s personal and commercial purposes. Ayble Health will not compensate You and will not be liable to You or any other provider of the Information.
If You send Information to Ayble Health, You represent and warrant that (i) it is original to You; (ii) it does not contain or violate the intellectual property or other legal rights or any person or entity, and (iii) that You have the right to disclose and submit it to Ayble Health without any confidentiality or other obligations. You acknowledge and agree that You have no recourse against Ayble Health for any alleged or actual infringement or misappropriation of any proprietary right in any Information.
Ayble Health is not obligated to maintain the confidentiality of any Information submitted, and Ayble Health disclaims any liability that may result from its disclosure of any Information submitted in violation of its policy.
You acknowledge and agree that, in the event of a breach or threatened breach by You of this Agreement or any threatened or actual harm to any right, title, or interest of Ayble Health or a Related Party in or to the Platform, including but not limited to, any computer code or source code, database, confidential information, trade secret, or intellectual property right associated with any portion of the Platform, Ayble Health, or Ayble Health’s business: Ayble Health will have no adequate remedy in money or damages and, accordingly, will be entitled to an injunction, temporary restraining order, or other immediate equitable or legal relief that Ayble Health seeks, according to the sole and complete discretion of Ayble Health. You agree that Ayble Health has the unequivocal right to obtain such injunctive relief, immediately upon request. Ayble Health’s right to obtain injunctive relief shall not limit its right to seek further remedies.
You agree that regardless of any statute or law to the contrary, any claim or cause of action You may have arising out of or related to use of any of the Platform or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The laws of the state of Massachusetts, without giving effect to its principles of conflicts of law, govern all adversarial proceedings arising out of this Agreement. Subject to the dispute resolution provisions set forth below, if You take legal action against Ayble Health or a Related Party in connection with any action or dispute relating to this Agreement, You will file such action only in a dispute resolution entity or state or federal court located in Boston, Massachusetts.
You agree that You will notify Ayble Health in writing about any dispute You have with Ayble Health regarding this Agreement, Ayble Health, or the Platform. You will provide in writing a detailed explanation of the bases for Your contentions in connection with any dispute and will provide such written notice and explanation at least ninety (90) calendar days before commencing any legal action or third-party party dispute resolution services.You agree to negotiate in good faith with Ayble Health during those ninety (90) calendar days to seek to resolve the dispute.
If the dispute is not resolved within ninety (90) calendar days after the initial notice, then a party may proceed in accordance with the following. Any dispute between the parties arising out of or relating to thisAgreement, including but not limited to, with respect to the interpretation of any provision and with respect to the performance by a party, or relating to the Platform or Ayble Health, will be resolved by binding and confidential arbitration. The arbitration will be administered by JAMS Alternative Dispute Resolution Services (with any successor organization or substitute organization chosen by Ayble Health in its sole and complete discretion, “JAMS”) under its Streamlined Arbitration Rules & Procedures then in effect in front of a single arbitrator. The arbitration will be held in Boston, Massachusetts. The arbitration panel, and not any federal, state, or local court or agency, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement, including but not limited to, the scope of this dispute resolution clause. The arbitration panel will have no power to award non monetary or equitable relief of any sort except as expressly permitted under this Agreement. It will also have no power to award damages inconsistent with the terms in this Agreement. Judgment on any arbitration award may be entered in any court having jurisdiction. You accept and acknowledge that any demand for arbitration arising from or in connection with this Agreement must be issued within one year from the date You became aware or should reasonably have become aware of the facts that give rise to Ayble Health’s alleged liability, and in any event no later than two years after the cause of action accrued.
There will be no right or authority for any claims subject to this arbitration clause to be arbitrated on a class action or consolidated basis or on bases involving claims brought in a purported representative capacity on behalf of the general public (including, but not limited to, as a private attorney general)
Other than as set forth in section 28, all administrative fees and expenses of arbitration will be divided equally between You and Ayble Health. Each party will bear the expense of its own counsel, experts, witnesses, and preparation and presentation of evidence at the arbitration hearing.
Notwithstanding the foregoing, Ayble Health may seek injunctive or other equitable relief to protect its Confidential Information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction at any time and without following the dispute resolution procedures otherwise set forth above.
Notwithstanding the foregoing, Ayble Health will be entitled to collect all attorneys’ fees and other costs and expenses incurred in seeking an injunction (or other legal or equitable relief) to protect its intellectual property, computer code, source code, confidential information, or Marks.
Pursuant to the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 C.F.R. Part 255Sections 255.0 through 255.5, some of the links are affiliated links. This means that Ayble Health may receive payment if You purchase products or services through such links. Ayble Health only utilizes affiliate links for products or services that its principals believe will add value to its visitors and Clients. Ayble Health will identify any such links as affiliated links.
The section headings used herein are for convenience of reference only and do not form a part of these terms and conditions, and no construction or inference will be derived therefrom.
Neither this Agreement, nor Your Registration, nor any rights or obligations You have under this Agreement, may be transferred or assigned by You. Ayble Health, however, may assign this Agreement or any other right or obligation associated with the Agreement at any time without notice to or consent from You.
You agree that: (i) if any provision of this Agreement is held to be unenforceable, then that provision will be modified to the minimum extent necessary to make it enforceable, unless that modification is not permitted by law, in which case that provision will be disregarded; (ii) if an unenforceable provision is modified or disregarded in accordance with this section, then the rest of this Agreement will remain in effect as written; and (iii) that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable.
This Agreement, and the policies and agreements incorporated in it, constitute the entire agreement between You and Ayble Health as it relates to Your use of and access to the Platform.
The relationship between the Ayble Health and You is that of licensor and licensee, and it is not the purpose or intention of this Agreement or of the parties to create a partnership, joint venture, principal-agent, or other relationship for any purpose whatsoever.