TERMS OF SERVICE
Last Modified: February 6, 2017
PLEASE REVIEW THE ARBITRATION CLAUSE (IN SECTION 15) CAREFULLY, INCLUDING THE LIMITATIONS OF YOUR RIGHTS CONTAINED THEREIN. ALL DISPUTES REGARDING THIS AGREEMENT AND/OR YOUR USE OF THE MERU HEALTH SERVICE (AS DEFINED BELOW) MUST BE RESOLVED VIA ARBITRATION. BY AGREEING TO THIS AGREEMENT, YOU ARE FORFEITING CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE IN COURT, THE RIGHT TO A JURY TRIAL AND THE RIGHT TO BRING OR BE PART OF A CLASS ACTION CASE.
1. Scope of Agreement.
1.1. Terms of Service. These terms of service (“Terms of Service”) govern the access and use of the website www.meruhealth.com, and affiliated websites, features, services, mobile applications, products, software and other services, or any portion thereof (collectively, the “Service”), owned or controlled by Meru Health, Inc., a Delaware corporation, or its affiliated companies (“Meru Health” or “we” or “our” or “us”). Affiliated companies are entities that control, are controlled by or are under common control with Meru Health.
2. Intellectual Property.
2.1. Ownership of Marks and IP. The design, trademarks, service marks, and logos of Meru Health and the Service (“Meru Health Marks”), are owned by or licensed to Meru Health Oy, a Finnish corporation (“Meru Health Oy”), subject to copyright and other intellectual property rights under United States, the laws of Finland, and other foreign laws and international conventions. Except as otherwise indicated, all copyright rights and other intellectual property rights in the Service and its contents, including any and all Meru Health Marks, content, data, databases, information, text, music, sound, photos, images, graphics, audio, video, software, code, technology, methods, analyses, studies, reports, and other intellectual property contained therein (“Meru Health IP”) are owned by or licensed to Meru Health Oy, and protected by law, including copyright, database, trade secret, and trademark laws of the United States and all applicable jurisdictions, as well as other applicable state, national, and international laws and regulations, including, without limitation, Finland.
2.2. License. During the term of this Agreement, Meru Health Oy grants you a limited, non-exclusive, non-transferable license to access the Service for your use in accordance with these Terms of Service. Meru Health Oy reserves all rights not expressly granted in and to the Service. You agree to not engage in the use, copying, or distribution of any of the Service, or any portion thereof, other than as expressly permitted.
3. Your Account.
3.1. Account Registration. If you choose to register for an account, you must complete the account registration process by providing us with current, complete, and accurate information as prompted by the applicable registration form. You agree to register only once using a single account. You agree you will not (i) register on behalf of another person; (ii) register under the name of another person or under a fictional name or alias; (iii) choose a username that constitutes or suggests an impersonation of any other person (real or fictitious) or entity or that you are a representative of an entity when you are not, or that is offensive; (iv) choose a username for the purposes of deceiving or misleading our users and/or the Meru Health as to your true identity; or (v) choose a username that incorporates a solicitation.
3.2. Account Information. You are entirely responsible for maintaining the confidentiality of your account information and password. Furthermore, you are entirely responsible for any and all activities that occur under your account. You should notify us immediately of any known or suspected unauthorized use of your username and password or any other breach of security. Meru Health will not be liable for any loss that you may incur as a result of someone else using your username, password, or account, either with or without your knowledge. You could be held liable for losses incurred by Meru Health or another party due to someone else using your username, password, or account. You may not use anyone else’s account at any time, without the permission of the account holder. Your account is unique to you and may not be transferred to any third party.
3.3. Account Security. Meru Health cares about the integrity and security of your account information. However, Meru Health cannot guarantee that unauthorized third parties will never be able to defeat the Service’s security measures or use any personal information you provide to us for improper purposes. You acknowledge that you provide your account information at your own risk.
4. The Meru Health Service.
4.2. Not Medical Advice. Meru Health does not give medical advice. The information and materials available through the Service are for informational and educational purposes only and are not intended to constitute professional advice, diagnosis or treatment, or to substitute for professional judgment. You assume full risk and responsibility for the use of information you obtain from or through the Service. In addition, we do not recommend or endorse any provider of health care or health-related products, items, or services.
THE SERVICE IS NOT INTENDED TO BE USED FOR SELF-DIAGNOSIS OR MEDICAL ADVICE, AND THE SERVICE IS SOLELY A TOOL TO BE USED IN CONJUNCTION WITH A HEALTHCARE PROVIDER. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN, HEALTHCARE PROVIDER OR OTHER QUALIFIED HEALTH PROVIDER REGARDING A MEDICAL CONDITION OR TREATMENT.
MERU HEALTH DOES NOT OFFER MEDICAL ADVICE OR DIAGNOSES OR ENGAGE IN THE PRACTICE OF MEDICINE. THE SERVICE IS NOT INTENDED TO BE, AND DOES NOT CONSTITUTE, A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT AND IS OFFERED FOR INFORMATIONAL PURPOSES ONLY. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS REGARDING YOUR MEDICAL CONDITION OR THE USE (OR FREQUENCY) OF ANY MEDICATION OR MEDICAL DEVICE. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ IN CONNECTION WITH THE SERVICE. TO THE EXTENT YOU RECEIVE MEDICAL CARE CONSEQUENT TO THE SERVICE, YOUR TREATING MEDICAL PROFESSIONAL IS RESPONSIBLE FOR OBTAINING YOUR INFORMED CONSENT TO ANY MEDICAL DIAGNOSIS OR TREATMENT, INCLUDING WITHOUT LIMITATION, YOUR CONSENT TO USE TELEMEDICINE IN THE COURSE OF YOUR TREATMENT TO THE EXTENT SUCH CONSENT IS REQUIRED BY APPLICABLE LAW. THIS DIAGNOSIS OR TREATMENT IS SEPARATE FROM AND UNRELATED TO THE SERVICE PROVIDED BY MERU HEALTH. MERU HEALTH DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR ANY PARTICULAR DRUG OR TREATMENT IS SAFE, APPROPRIATE, OR EFFECTIVE FOR YOU.
4.3. Group-Based Programs. As part of the Service, we offer group-based programs to certain individuals (such as web-based coaching services) to support you in making changes to habits that can lead to health problems. The Service may include, without limitation, the following:
• The ability to access information shared by you and others through the Service, augmented with information collected about you through authorized third parties (e.g., Fitbit®) and to build an online community related to your goals.
• The ability to interact with relevant professionals from the time of initial application and throughout the course of program participation.
• The ability to interact with other users of the Service from the time of registration with the Service and throughout the course of engagement with the Service.
4.4. No Emergency Services. If Meru Health becomes aware of or contemplates an emergency, Meru Health may, at its sole discretion secure from any licensed hospital, physician, and/or medical personnel (“Emergency Responders”) any emergency treatment deemed necessary by Meru Health for your immediate care. You understand and agree that, in the event that Meru Health does take any action with respect to securing Emergency Responders on your behalf, you, not Meru Health, will be solely responsible for payment of any and all medical services rendered in connection with any such treatment.
THE SERVICE IS FOR NON-EMERGENCY PURPOSES ONLY. DO NOT ATTEMPT TO ACCESS EMERGENCY CARE THROUGH THE SERVICE. IF AT ANY TIME YOU ARE CONCERNED ABOUT YOUR CARE OR TREATMENT, OR IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911 (USA) OR THE EMERGENCY PHONE NUMBER IN YOUR COUNTRY, OR GO TO THE NEAREST OPEN EMERGENCY ROOM.
THE SERVICE IS NOT INTENDED TO SUPPORT OR CARRY EMERGENCY OR TIME-CRITICAL CALLS OR COMMUNICATIONS TO ANY TYPE OF HOSPITAL, LAW ENFORCEMENT AGENCY, MEDICAL CARE UNIT, OR ANY OTHER KIND OF EMERGENCY OR TIME-CRITICAL SERVICES.
IF YOU ARE CONSIDERING OR COMMITTING SUICIDE OR FEEL THAT YOU ARE A DANGER TO YOURSELF OR TO OTHERS, YOU MUST DISCONTINUE USE OF THE SERVICE IMMEDIATELY, CALL 911 (USA) OR THE EMERGENCY PHONE NUMBER IN YOUR COUNTRY, OR NOTIFY APPROPRIATE POLICE OR EMERGENCY MEDICAL PERSONNEL.
4.5. Assumption of Risk. The Service is designed to provide a designated third-party with health-related information based on your inputs to surveys and mobile interactions, as such interactions are catalogued via your mobile device. The Service and any related data supplied to you by Meru Health is not, nor a substitute for, medical advice. By granting you the right to use the Service, Meru Health does not assume any obligation or liability with respect to your health or your physical activity or condition. In no event shall Meru Health be liable for any death or bodily injury that you suffer, or that you cause to any third party, in connection with your use of the Service or any activity you undertake in connection with your use of the Service. As between you and Meru Health, you are solely responsible for your use of the Services and your health and medical condition and treatment related thereto. Meru Health shall have no liability for any unauthorized disclosure of your personally identifiable information due to your actions or omissions or that of your healthcare provider.
YOU AGREE THAT: (i) IF YOU ARE IN NEED OF OR ARE SEEKING MEDICAL TREATMENT OR EMERGENCY CARE, YOU SHOULD CONTACT YOUR HEALTHCARE PROVIDER OR CALL 911 (USA) OR THE EMERGENCY PHONE NUMBER IN YOUR COUNTRY, IMMEDIATELY; (ii) MERU HEALTH DOES NOT PROVIDE MEDICAL TREATMENT, ADVICE, OR DIAGNOSIS AND IS NOT A HEALTHCARE PROVIDER; (iii) YOU WILL NOT LEAVE ANY MESSAGES WITH, OR SEND ANY EMAILS TO, MERU HEALTH WITH RESPECT TO YOUR MEDICAL CONDITION, AS MERU HEALTH IS NOT YOUR HEALTHCARE PROVIDER, IS NOT AND DOES NOT PROVIDE 911 (USA) OR THE EMERGENCY PHONE NUMBER IN YOUR COUNTRY, OR OTHER EMERGENCY SERVICES, AND CANNOT CONTACT YOU OR ANYONE ON YOUR BEHALF WITH RESPECT TO YOUR MEDICAL CONDITION OR TREATMENT; (iv) DATA PROVIDED BY MERU HEALTH THROUGH THE SERVICE IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO REPLACE THE RELATIONSHIP BETWEEN YOU AND YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER; (v) MERU HEALTH IS NOT A LICENSED MEDICAL CARE PROVIDER AND HAS NO EXPERTISE IN DIAGNOSING, EXAMINING, OR TREATING MEDICAL CONDITIONS OF ANY KIND, OR IN DETERMINING THE EFFECT OF ANY SPECIFIC TREATMENT ON A MEDICAL CONDITION; (vi) YOU SHOULD ALWAYS CONSULT A PHYSICIAN IF YOU HAVE ANY QUESTIONS REGARDING A MEDICAL CONDITION; (vii) NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ OR RECEIVED USING THE SERVICE; (viii) MERU HEALTH HAS NO LIABILITY WITH RESPECT TO ANY SURVEY OR RESEARCH/MEDICAL PROGRAM OR STUDY WITH WHICH YOU MAY BE USING THE SERVICE; AND, (ix) MERU HEALTH IS NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, EFFECTIVENESS, OR CORRECT USE OF INFORMATION YOU RECEIVE THROUGH OR IS GENERATED BY THE SERVICE.
5. User Conduct and User Content.
5.1. User Conduct. As a condition of your use of and access to the Service, you agree not to use the Service for any unlawful purpose or in any way that violates these Terms. Any use of the Service in violation of these Terms of Service may result in, among other things, termination or suspension of your account and your ability to use the Service. You may not engage in any of the following prohibited activities:
(a) Copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; collecting or harvesting any personally identifiable information, including account names, from the Service; altering, modifying or creating derivative works of the Service, or any portion thereof;
(b) Using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service; accessing any content or features of the Service through any technology or means other than those provided or authorized by the Service;
(c) Transmitting spam, chain letters, or other unsolicited email; using the Service for any commercial solicitation purpose or political campaigning;
(d) Attempting to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Service; uploading invalid data, viruses, worms, or other software agents through the Service; bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or features or enforce limitations on use of the Service or the content or features therein;
(e) Taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on Service infrastructure; interfering with the proper working of the Service;
(f) Impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; or
(g) Disrupting the normal flow of dialogue, causes a screen to “scroll” faster than other Users are able to type, or otherwise negatively affects other Users’ ability to engage in real time exchanges.
(h) The Service is for personal use only. Users may not use the Service or any content contained in the Service (including, but not limited to, content of other users, designs, text, graphics, images, video, information, logos, software, audio files and computer code) in connection with any commercial endeavors, such as (i) advertising or soliciting any user to buy or sell any products or services not offered by Meru Health or (ii) soliciting others to attend parties or other social functions, or networking, for commercial purposes. Users of the Service may not use any information obtained from the Service to contact, advertise to, solicit, or sell to any other user without his or her prior explicit consent. Organizations, companies, and/or businesses may not use the Service or the Service for any purpose except with Meru Health’s express consent (such as for promoted profiles or other advertisements), which Meru Health may provide or deny in its sole discretion. Meru Health may investigate and take any available legal action in response to illegal and/or unauthorized uses of the Service, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of or linking to the Service.
5.2. User Content. As a user with a registered account, you may be able to submit content to the Service, including software code, videos, photos, images, audio, text, information (including, without limitation, Personally Identifiable Information), user comments, and any other content (collectively, “User Content”). You shall be solely responsible for your own User Content and the consequences of submitting and publishing your User Content on the Service. You further agree that you will not submit to the Service any User Content or other material that is contrary to these Terms of Service or contrary to applicable local, national, and international laws and regulations.
5.3. Representations. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish User Content you submit. You further agree that User Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant us all of the license rights granted herein. We do not permit copyright infringing activities and infringement of intellectual property rights on the Service, and we will remove all User Content if properly notified that such User Content infringes on another’s intellectual property rights. We reserve the right to remove User Content without prior notice. By using the Service, you expressly agree not to use, reproduce, modify, adapt, edit, translate, publicly display, telecommunicate or perform, post, upload to, transmit, distribute, store, create derivative works from or otherwise publish throughout the world, in any media, now known or hereafter devised, on or through the Service any of the following:
(a) User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, foreign, national or international law, including, without limitation, the regulations of the U.S. Securities and Exchange Commission;
(b) User Content that is indecent, profane (including masked profanity where symbols, initials, intentional misspellings or other characters are used to suggest profane language), obscene, pornographic, abusive, inflammatory, untrue, misleading, illegal, invasive of privacy or publicity rights, libelous, slanderous or defamatory. We do not tolerate users harassing, threatening or embarrassing other users, including harassment or denigration based on age, gender, race, religion, national origin, sexual orientation or disability, marital status or veteran status, or the stalking of other users;
(c) User Content that contains any confidential or proprietary information of any person or entity, or that otherwise violates the legal rights of any person or entity. You may not include in any User Content either any email addresses or telephone numbers of any person or entity, including your own. You may not use a false email address, impersonate any person or entity (including any other user), or otherwise mislead as to the origin of your User Content;
(d) User Content that is unrelated to the topic or context in which such Content is posted, or that, in the sole judgment of Meru Health, contravenes the above, is otherwise objectionable or inappropriate, or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Meru Health or its affiliates or its users to any harm or liability of any type.
5.4. Rights and License. You retain all of your ownership rights in your User Content. However, by submitting User Content to the Service, you hereby grant Meru Health a worldwide, non-exclusive, royalty-free, sub-licensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Content in connection with the Service and Meru Health’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels (including for advertising or other commercial use). If we publish your User Content or authorize or license others to do so, your User Content may be edited for length, format, clarity or for any other reason either before or after it is published. You also hereby grant each user of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in User Content you submit to the Service terminate within a commercially reasonable time after you remove your User Content from the Service. You understand and agree, however, that we may retain, but not display, distribute, or perform, server copies of your User Content that have been removed. The above licenses granted by you in user comments you submit are perpetual and irrevocable.
5.5. Community Services. Meru Health provides a number of means by which you may communicate with other users and with us, including various communication and personalization tools and services that are part of our Meru Health community (the “Community Services”). The Community Services may include comments, discussion forums, and listings, in which you or other users may post content, messages, materials or other items on the Service. All of your communications made to or through these other means or our Community Services, as well as any attachments to those communications or otherwise submitted to us (such as documents, photographs and videos) are included in the definition of “User Content,” and are subject to the terms for User Content as set forth above. You are solely responsible for your use of such Community Services and use them at your own risk. No action should be taken based upon any of the information contained in the Community Services. You should seek independent professional advice from a person who is licensed and/or knowledgeable in the applicable area before acting upon any opinion, advice, or information contained on the Service. All statements, information and other User Content submitted by users are solely the opinions of users, and not of Meru Health. You are responsible for all usage and activity in the Community Services through your username and password, including use of your username and password by any third party. You are responsible for all usage and activity in the Community Services through your username and password, including use of your username and password by any third party. You should be aware that disclosure in the Community Services of your full name, street address or other personal information raises safety concerns and may result in solicitations from third parties or unwanted communications. We disclaim any responsibility or liability arising from your disclosure of such personal information, or any other information, in the Community Services.
5.6. User Content Disclaimers. We do not endorse any User Content submitted to the Service by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with User Content. Meru Health takes no responsibility and assumes no liability for any User Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto or in connection therewith, nor is Meru Health liable for any mistakes, inaccuracies, infringements, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. As a provider of interactive services, Meru Health is not liable for any statements, representations or User Content provided by its users. Although Meru Health has no obligation to screen, edit or monitor any of the User Content posted to or distributed through the Service, Meru Health reserves the right, and has absolute discretion, to remove, screen or edit without notice any User Content posted or stored on the Service at any time and for any reason and without liability to you or any third party, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Service at your sole cost and expense. However, we also reserve the right in our sole discretion to display any User Content that is submitted to us (or to decline to remove any User Content), even if it violates this Agreement. Since not all of the areas of the Service are monitored on a “real time” basis, you may see User Content that violates this Agreement before we do. Please report such items to email@example.com.
6. Copyright Policy.
6.1. Copyright Agent. Meru Health respects the intellectual property rights of others and expects users of the Service to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to our designated copyright agent (“Copyright Agent”). Our designated Copyright Agent to receive notifications of claimed infringement is:
Meru Health, Inc.
470 Ramona St.
Palo Alto, CA 94301
Attn: Copyright Agent
For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to firstname.lastname@example.org. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.
6.2. Claims of Infringement. If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(c) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
(d) Information reasonably sufficient to permit Meru Health to contact you, such as an address, telephone number, and, if available, an electronic mail;
(e) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(f) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
6.3. Counter-Notice. If you believe that your content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your content, you may send a counter-notice containing the following information to our Copyright Agent:
(a) Your physical or electronic signature;
(b) Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
(c) A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
(d) Your name, address, telephone number, and e-mail address, a statement that you consent to the arbitration provision of this Agreement, and a statement that you will accept service of notice from the person who provided notification of the alleged infringement;
(e) If a counter-notice is received by our Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that he or she may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at our sole discretion.
7. Third Parties.
7.1. Third Party Links. The Service may contain links to third-party advertisers, websites or services. You acknowledge and agree that Meru Health is not responsible or liable for: (i) the availability or accuracy of such advertisements, websites or services, or (ii) the content, products, or resources on or available from such advertisers, websites or services. Links to such advertisers, websites or services do not imply any endorsement by Meru Health of those websites or services. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or services.
7.2. Third Party Content. Through the Service, you will have the ability to access and/or use content provided by third parties. Meru Health cannot guarantee that such third party content will be free of material you may find objectionable or otherwise. Meru Health disclaims any responsibility or liability related to your access or use of any third party content.
7.3. Third Party Promotions. Some third parties may promote sweepstakes, competitions, promotions, and other similar opportunities on the Service (“Third Party Promotions”). Meru Health is not the sponsor or promoter of these Third Party Promotions and does not bear any responsibility or liability for the actions or inactions of any third parties who organize, administer or are otherwise involved in any of promotion of these Third Party Promotions. If you wish to participate in any of these Third Party Promotions, you are responsible for reading and ensuring that you understand the applicable rules and any eligibility requirements and are lawfully able to participate in such Third Party Promotions in your jurisdiction.
7.5. Third Party Listings. We do not warrant and shall not be liable for the quality of any third party products, services, information, or other material obtained by you through the Service.
7.6. Errors, Inaccuracies and Omissions. Occasionally there may be information in the Service that contains typographical errors, inaccuracies or omissions. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information if any information in the Service or on any related website is inaccurate at any time without prior notice. We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.
8. Fees, Payments and Changes.
8.1. Fees. Meru Health reserves the right at any time to charge fees for access to the Service, or any portion thereof. However, in no event will you be charged for access to the Service unless we obtain your prior agreement to pay such charges. You may cancel your account at any time. You agree to pay all charges that may be incurred by you or on your behalf through the Service, at the price(s) in effect when such charges are incurred, including all shipping and handling charges. In addition, you remain responsible for any and all taxes that may be applicable to your purchase(s), and you agree that such taxes, if any, are not our responsibility. Refunds and exchanges shall be subject to our refund and exchange policies, in the applicable additional terms, as may be made available by us and updated by us from time to time.
8.3. Changes. We reserve the right, with or without prior notice, to: change descriptions or references to products, subscriptions, software or services; limit the available quantity of any products, subscriptions, software, or services; honor, or refuse to honor, any coupon, coupon code, promotional code or other similar promotions (collectively, the “Rewards Program”); and/or refuse to provide any user of the Service with any products, subscriptions, software or services. We may modify the Rewards Program, any points, or the terms that govern their usage, at our sole discretion, and such modifications may make the Rewards Program points more or less common, valuable, effective, or functional.
9. Mobile Services and Applications.
9.1. “Mobile Services” means certain software and services that are available via a mobile device, including (i) the ability to upload data to the Service via a mobile device, (ii) the ability to use the Service from a mobile device, and (iii) the ability to access certain features through an application downloaded and installed on a mobile device.
9.2. Wireless Carriers. To the extent you access the Mobile Services through a mobile device, your wireless carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
9.3. Notifications and Messages. By using the Mobile Services, you agree that we may communicate with you regarding Meru Health and other entities by SMS, MMS, text message or other electronic means to your mobile device for the purpose of providing the applicable service and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Meru Health account information to ensure that your messages are not sent to the person that acquires your old number. In the event that you fail to comply with the obligation to promptly update your Meru Health account information when changing or deactivating your mobile telephone number, you accept full responsibility for any of your messages, which may not be delivered or may be sent to the person that acquires your old number.
9.4. License. Subject to your compliance with this Agreement, Meru Health grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Meru Health mobile application (“Application”) on a mobile device that you own or control and to run such copy of the Application solely to access the Service for your own personal non-commercial purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
9.5. App Stores. You acknowledge and agree that the availability of the Application and the Service is dependent on the third party from whom you received the Application license, e.g., the Apple or Android app stores (“App Store”). You acknowledge that this Agreement is between you and Meru Health and not with the App Store. Meru Health, not the App Store, is solely responsible for the Service and Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g. product liability, legal compliance, or intellectual property infringement). You agree to pay all fees (if any) charged by the App Store in connection with the Application or Service. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the App Store’s terms and policies) when using the Application and the Service. You acknowledge that the App Store (and its subsidiaries) are third party beneficiaries of these Terms and will have the right to enforce them.
9.6. Accessing and Download the Application from the Apple App Store. The following applies to any Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) this Agreement is concluded between you and Meru Health only, and not Apple, and (ii) Meru Health, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Meru Health and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Meru Health.
(d) You and Meru Health acknowledge that, as between Meru Health and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Meru Health acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Meru Health and Apple, Meru Health, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
(f) You and Meru Health acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of these Terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
(g) Without limiting any other terms of these Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
11. Termination, Suspension, and Restrictions, and Survival of Terms.
11.1. Termination, Suspension, and Restrictions. Meru Health may terminate or suspend your access to or ability to use the Service immediately, without prior notice or liability, for any reason or no reason, including breach of this Agreement. In particular, Meru Health may immediately terminate or suspend accounts that have been flagged for repeat copyright infringement. Upon termination of your access to or ability to use the Service, your right to use or access the Service will immediately cease. Meru Health may change, restrict access to, suspend, or discontinue any aspect of the Service at any time, including availability of any feature, database, or content. Meru Health may also impose limits on certain features and services or restrict your access to all or parts of the Service without notice or liability.
11.2. Survival of Terms. This Agreement’s terms and conditions that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability. Termination of your access to and use of the Service shall not relieve you of any obligations arising or accruing prior to termination or limit any liability that you otherwise may have to Meru Health or any third party.
12. General Disclaimers. YOU EXPRESSLY AGREE THAT USE OF THE SERVICE (INCLUDING, WITHOUT LIMITATION, MOBILE SERVICES), IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MERU HEALTH, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MERU HEALTH DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT SERVICE OR THE SERVERS THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR ANY OTHER HARMFUL COMPONENTS. MERU HEALTH DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE CONTENT OR DATA ON THE SERVICE, WITH RESPECT TO THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. MERU HEALTH DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCTS, OR SERVICES ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY OTHER ADVERTISING, AND MERU HEALTH WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF PRODUCTS OR SERVICES THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
13. Limitations of Liability. IN NO EVENT SHALL MERU HEALTH, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM YOUR USE OF THE SERVICE (INCLUDING, WITHOUT LIMITATION, MOBILE SERVICES), OR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR DATA, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR DATA OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT OR DATA POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MERU HEALTH IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT MERU HEALTH SHALL NOT BE LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. IN NO EVENT WILL MERU HEALTH’S TOTAL AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU TO USE THE SERVICE DURING THE PRIOR SIX (6) MONTHS.
14. Indemnification. To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Meru Health, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from: (i) your use of and access to the Service (including, without limitation, Mobile Services); (ii) your violation of any term of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your User Content caused damage to a user or third party. Meru Health may assume the exclusive defense and control of any matter for which users have agreed to indemnify Meru Health and you agree to assist and cooperate with Meru Health in the defense or settlement of any such matters. This defense and indemnification obligation will survive the termination of this Agreement and your use of the Service.
15. Dispute Resolution.
15.1. Mandatory Arbitration. For any dispute you have with Meru Health, you agree to first contact Meru Health and attempt to resolve the dispute informally. If Meru Health has not been able to resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement by binding arbitration. If you reside in the USA or Canada, the arbitration will be held in accordance with the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”) in effect at the time of the arbitration (the “AAA Arbitration Rules”) and the place of arbitration shall be in San Francisco, California. If you reside in any other country, the arbitration will be held in accordance with the Arbitration Rules of the International Chamber of Commerce of Finland (“ICC”) in effect at the time of the arbitration (the “ICC Arbitration Rules”) and the place of arbitration shall be in Helsinki, Finland. Each party will be responsible for paying any filing, administrative and arbitrator fees in accordance with the AAA or ICC Arbitration Rules, as applicable. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. This arbitration agreement survives the termination of this Agreement between you and Meru Health.
15.2. Waivers of Class Action and Trial by Jury. You and Meru Health both waive any right to participate in any class action involving disputes between us, and you and Meru Health are each waiving the right to a trial by jury. All claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. This class action waiver is an essential part of our arbitration agreement and may not be severed. If for any reason this class action waiver is found unenforceable, then the entire arbitration agreement will not apply. However, the waiver of the right to trial by jury set forth in this Section will remain in full force and effect.
15.3. Other Remedies. Notwithstanding the foregoing, if you reside in the USA, either party may bring an individual action in small claims court in San Francisco, California. Nothing in this Section precludes you from bringing issues to the attention of federal, state or local agencies. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to the Service.
15.4. Time Limitations. YOU AND MERU HEALTH AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.
16. Notice for California Users. Under California Civil Code Section 1789.3, California users of the online services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
17. Users From Other Jurisdictions. By accessing or using the Service, or submitting information, you acknowledge that you accept the practices and policies outlined in this Agreement and consent to having your data transferred to and processed in the United States. If you do not agree to the terms of this Agreement, please do not use the Service. The Service is controlled and operated by Meru Health from the United States and Finland. We do not represent or warrant that the Service, or any part thereof, is appropriate or available for use in any particular jurisdiction. Those who choose to access the Service, do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. You also are subject to United States export controls in connection with your use of the Service and are responsible for any violations of such controls, including, without limitation, any United States embargoes or other federal rules and regulations restricting exports. We may limit the availability of the Service, in whole or in part, to any person, geographic area or jurisdiction that we choose, at any time and in our sole discretion.
19. Contact Information. If you have any questions, feedback or to report a violation regarding these Terms of Service, you may email us at email@example.com or contact us by mail addressed to:
Meru Health, Inc.
470 Ramona St.
Palo Alto, CA 94301