Terms of Service
These Terms of Service (“Terms of Service”) govern your use of Allay’s Application (the “Application”), as well as content, services, features, websites, and materials appearing on the Application.
Allay Health is referred to throughout these Terms of Service as “Allay”, “us”, “our”, “ours”, or “we”. For purposes of these Terms of Service, “you” and “your” means you as the user of the Application.
By using the Application, you accept all of the provisions of these Terms of Service and represent to us that you are at least 18 years of age and legally competent to enter into and agree to these Terms of Service. The Application is not designed or intended to appeal to minors, and we do not knowingly collect information from children under the age of thirteen. If a parent or guardian becomes aware that his or her child has provided us with information without their consent, he or she should contact us so we can promptly delete that information. If you do not agree to these Terms of Service, you may not use this Application.
The Application is currently available only to individuals who reside in the United States, Canada, Australia, and New Zealand. If you reside outside these regions, then you are not authorized to use the Application.
These Terms of Service describe your responsibilities, our liability, and the liability of third parties related to the Application. All users of our Application must accept and comply with the terms and conditions set forth in these Terms of Service. If you have any questions regarding these Terms of Service, please contact us via email at hello@allayhealth.net.
THESE TERMS OF SERVICE INCLUDE (1) AN ARBITRATION PROVISION; (2) A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST US; AND (3) A RELEASE BY YOU OF ALL CLAIMS FOR DAMAGE AGAINST US THAT MAY ARISE OUT OF YOUR USE OF THE APPLICATION. BY USING ANY OF THE APPLICATION, YOU AGREE TO THESE PROVISIONS.
1. Changes to these Terms
We reserve the right to modify the Terms of Service at any time in our sole discretion by including such alteration and/or modification in these Terms of Service, along with a notice of the effective date of such modified Terms of Service. Any continued use by you of the Application after the posting of such modified Terms of Service shall be deemed to indicate your agreement to such modified Terms of Service. Accordingly, if at any time you do not agree to be subject to any modified Terms of Service, you may no longer use the Application.
2. About the Application
a. Our mission is to help everyone suffering from gastrointestinal (GI) issues achieve health and wellness, starting with Inflammatory Bowel Disease (IBD) and Irritable Bowel Syndrome (IBS) patients. We use technology tools (including the Application and websites), data science, and clinical expertise to help people effectively understand the correlation between their symptoms and their lifestyle (e.g., food), and easily practice self-management for symptom relief.
b. Some of the data, advice, information, and materials available on the Application is not provided by us. To the extent the mobile application contains any third-party software, links, or materials your rights and obligations with respect to such items will be subject to and governed by the third-party’s terms and conditions. Third-Party Services and materials are covered below in section 4(f).
c. We may modify the features and functionality of the Application at any time during the term of this Agreement. If a modification meaningfully reduces performance of the Application, we will use reasonable efforts to notify you (by, for example, sending an email to the billing contact you designate in Your Account, through your account or in the Application itself).
d. Group Sessions. Through the Application, we may offer the opportunity for you to either participate in, or review recordings after the fact of, group sessions where you and other users of the Application will be able to interact with a qualified group facilitator who will be available to provide educational and informational support, as well as non-clinical behavioral coaching. We facilitate group sessions for informational and educational purposes only. Under no circumstances are group sessions intended to deliver medical advice, or create a provider-patient relationship between you and us, or the individual facilitating the group session. Additionally, you agree that we may require all participants in group sessions to agree to certain additional terms, or a code of acceptable conduct as a condition of participating.
g. No Professional Advice. The content available through the Application is for informational, personal, and educational purposes only, and is not a substitute for the professional judgment of a qualified healthcare professional in diagnosing and treating patients. We do not, through the Application or any other available products or services, provide medical advice, nor do we provide medical prescriptions, treatments, or diagnostic services. Additionally, your use of the Application and any other information that we provide in connection with your use of the Application or any of our other products or services does not establish a physician-patient relationship.
3. Subscription Tele-Nutritionist Services
Through the Application, or our website, you may sign up to participate in and receive Tele-Nutritionist Services (“Nutritionist Care”) as a part of our “Total Nutritionist Program” (the “Program”). Nutritionist Care is provided by Modulla Health, a licensed nutritionist that we have partnered with. If you choose to subscribe to the Program, Allay will connect you to Modulla, collect payment that will be sent to Modulla on your behalf, and will receive information from Modulla about the Nutritionist Care provided to you, that we will use to enhance your experience through the Application. You also agree that we will share information about you with Modulla for the purposes of establishing your relationship with Modulla.
We facilitate access to Nutritionist Care solely as a convenience to Users of the Application, and to enhance the features of the Application for interested Users. However, you understand that Allay is not a licensed health care provider, and is not responsible for the care that you receive from Modulla, or any other health care provider that we may facilitate access to. Nutritionist Care is governed solely by Modulla’s terms and conditions.
By subscribing to the Program, you may be entering into a provider-patient relationship with Modulla. Nothing in these Terms will interfere with that provider-patient relationship, and you may choose to continue receiving Nutritionist Care from Modulla, even if you choose to cancel your subscription to the Program or terminate your use of the Application, however you understand in that case, that you will be financially responsible to Modulla for continuing to receive Nutritionist Care, and you may no longer receive access to the enhanced Application functionality enabled by the Program.
To cancel your subscription to the Program, you may either contact Allay via email at hello@allayhealth.net. The alternative is to inform Modulla directly via message or email. Upon receiving the cancellation request, your access to the Program and Nutritionist Care will cease at the end of your current subscription.
You understand that Allay may choose to cease offering the Program at any time, or may limit access to the Program to a select group of users.
4. User Account
To access and use any features of the Application, you are required to open an account (“Your Account”) by registering with us. When you register for Your Account, you must provide true, accurate, current, complete information, and you agree to update the account information in order to ensure that it is current.
As a condition of being permitted to open a User Account, you represent that you (i) have the legal capacity (including, without limitation, being of sufficient age) to enter into contracts under the law of the jurisdiction in which you reside, (ii) are not on a list of persons barred you from receiving services under U.S. laws (including, without limitation, the Denied Persons List and the Entity List issued by the U.S. Department of Commerce, Bureau of Industry and Security) or other applicable jurisdiction and (iii) are not a resident of Cuba, Iran, North Korea, Sudan or Syria.
You are responsible for maintaining the confidentiality of your passwords and for all of your activities and those of any third-party that occur through Your Account, whether or not authorized by you. You agree to immediately notify us of any suspected or actual unauthorized use of Your Account. You agree that we will not under any circumstances be liable for any cost, loss, damages, or expenses arising out of a failure by you to maintain the security of your passwords.
5. Terms Applicable to the Application
a. Access to the Application. Upon registration and opening of Your Account, we will make the Application available to you in accordance with the terms of this Agreement, for your own personal use, until such time as either you or we elect to terminate such right in accordance with these Terms of Service.
b. Use of the Application. You are responsible for providing the device, service plan, software, Internet connections and/or other equipment or services that you need to download, install and/or use the Application. WE DO NOT GUARANTEE THAT THE APPLICATION CAN BE ACCESSED AND USED ON ANY PARTICULAR DEVICE. WE DO NOT GUARANTEE THAT THE APPLICATION WILL BE AVAILABLE IN ANY PARTICULAR GEOGRAPHIC LOCATION. YOU ARE SOLELY RESPONSIBLE FOR ANY FEE, COST, OR EXPENSE THAT YOU INCUR TO DOWNLOAD, INSTALL AND/OR USE THE APPLICATION ON YOUR DEVICE.
You agree to receive marketing messages, related information, and other electronic communications from us via text message, phone call, email, and any other means of communication available based on the information you provided. Use of an automatic telephone dialing system may be used to deliver text messages. Standard data and message rates may apply. If you do not wish to receive marketing messages, you may opt out in accordance with our Privacy Policy.
c. Use Restrictions.
(1) You agree that: (i) you will not use the Application if you are not fully able and legally competent to agree to these Terms of Service; (ii) you will only use the Application for lawful purposes; (iii) you will not use the Application for sending or storing any unlawful material or for fraudulent purposes or to engage in any illegal, offensive, indecent or objectionable conduct; (iv) you will not use the Application to advertise, solicit or transmit commercial advertisements, including “spam”; (v) you will not use the Application to cause nuisance, annoyance or inconvenience; (vi) you will not impair the proper operation of the Application; (vii) you will not try to harm the Application in any way whatsoever; (viii) you will not copy, or distribute the Application or other content without written permission from us; (ix) you will only use the Application for your internal operations and will not resell it to a third-party or otherwise use it for commercial purposes; and (x) you will keep secure and confidential your account password or any identification we provide you which allows access to the Application.
(2) You agree to protect the Application, and our proprietary content, information, and other materials from any unauthorized access or use, and you agree that you will not use the Application or proprietary content, information, or other materials except as authorized in writing by us. You agree that you will not directly or indirectly: (i) distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Application in any unauthorized manner, including but not limited to by trespass or burdening network capacity; (ii) use the Application in any service bureau arrangement; (iii) copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Application, in whole or in part, in any form or manner or by any means; (iv) harvest or scrape any content or data from the Application, or (v) permit any third-party to engage in any of the acts described in clauses (i) through (iv).
(3) You further understand and agree that you are not permitted to: (i) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Application; (ii) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the Application in whole or in part; (iii) use any means to discover the source code of any portion of the Application; or (iv) otherwise circumvent any functionality that controls access to or otherwise protects the Application. Any attempt to do any of the foregoing is a violation of our and our licensors’ rights. If you breach these restrictions, you may be subject to prosecution and damages. You further agree not to use the Application in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that we are not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using the Application.
(4) We may allow other Users to post content or material and make statements to the Application. You acknowledge that people using the Application may occasionally post content or material, or make statements, whether intentionally or unintentionally, that are inaccurate, misleading, illegal, or deceptive. We neither endorse nor are responsible for such submissions or statements, or for any opinion, advice, information, or other utterance made or displayed on the Application by any third person. The opinions expressed in the Application reflect solely the opinion(s) of the third-party poster and do not necessarily reflect our opinion(s). We have no obligation to monitor the Application or any submissions or other materials that you or other third persons or parties transmit or post on Application. You acknowledge and agree that we have the right (but not the obligation) to do any or all of the following, at our sole discretion: (i) alter, remove or refuse to post or allow to be posted or stored any user-submitted content, material or message; (ii) monitor and/or filter any of your communications through the Application (including without limitation, by means of blocking or replacing expletives or other language that may be deemed harmful or offensive); and (iii) disclose any submission or message or any communication through the Application, and the circumstances surrounding its transmission, to any third-party in order to operate the Application to (A) protect us and our employees, officers, directors, shareholders, agents, representatives, affiliates, users and visitors; (B) comply with legal obligations or governmental requests; (C) to enforce these Terms of Service; or (D) for any other reason or purpose.
(5) The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Application infringe your copyright, you (or your agent) may send us a written notice by mail or by e-mail (hello@allayhealth.net) requesting that we remove such material or block access to it. If you believe in good faith that someone has wrongly submitted a notice of copyright infringement to us involving content that you made available through the Application, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA.
(6) We, and our licensors, reserve the right to change, suspend, remove, or disable access to the Application at any time without notice. In no event will we be liable for the removal of or disabling of access to any such Application. We may also impose limits on the use of or access to the Application, in any case and without notice or liability.
e. User Submissions; License Grant. As a condition of your use of the Application, you agree to grant to us a nonexclusive, perpetual, irrevocable, royalty-free, worldwide, transferable, sublicensable license to access, use, reproduce, transmit, display, publish, distribute, modify and adapt and create derivative work from any content that you upload, submit or transmit to be made available through the Application (“User Submissions”) that allows us to use and exploit the User Submissions for any purpose. By submitting User Submissions through the Application, you represent and warrant (i) that you own or otherwise control all of the rights to User Submissions, including without limitation, all copyrights; and (ii) that use of User Submissions does not violate these Terms of Service and will not cause injury to any person or entity. We take no responsibility and assume no liability for any content or materials submitted or posted through the Application by you or any third-party.
You agree that we, and any third parties that we use to assist in providing the Application to you, will have the right to access Your Account and to use, modify, reproduce, distribute, display, and disclose Your Data, including personal data of your users, to the extent necessary to provide, secure, or improve the Application. Any third-party service providers we use will only be given access to Your Account as is minimally necessary to provide the Application and will be subject to (i) confidentiality obligations which are commercially reasonable; and (ii) their agreement to comply with the data transfer restrictions applicable to personal data and protected health information.
WE RESERVE THE RIGHT TO REMOVE ANY CONTENT, MATERIAL, OR SUBMISSION FOR ANY REASON, INCLUDING IF WE DETERMINE IN OUR SOLE DISCRETION VIOLATES ANY LAW OR RIGHT OF ANY PERSON, INFRINGES THE RIGHTS OF ANY PERSON, OR IS OTHERWISE INAPPROPRIATE FOR POSTING ON THE APPLICATION.
f. Third-Party Services. The Application may display, include, or make available content, data, information, applications, or materials from third parties (“Third-Party Services”) or provide links to certain third-party web sites. By using the Application, you agree that we are not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third-Party Services or web sites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any Third-Party Services or web sites, or for any other materials, products, or services of third parties. Third-Party Services and links to other web sites are provided solely as a convenience to you. We may undertake reasonable efforts to call attention to Third-Party Services, particularly when the use of those Third-Party Services require you to agree to separate terms and conditions, but we will not be required to do so, and do not guarantee that we will do so in all instances.
Your rights and obligations with respect to such Third-Party Services will be subject to and governed by the Third-Party’s terms and conditions. You may be required to register for or log into such Third-Party Services on their respective websites. In the event that you do not wish to use any Third-Party Service, your sole remedy is to not use the functionality of the Application requiring the use of the Third-Party Service.
“Third-Party Services” means third-party products, applications, services, software, networks, systems, directories, websites, databases, and information not provided by us, but which the Application links to. Third-Party Services may be embedded within the Application, may be launched from the Application but run independently, or may be accessed entirely from outside of the Application. The disclaimer set forth in this section will apply to the Third-Party Service regardless of the mechanism by which it is employed as part of the Application.
6. Collection and Use of Data
As you use the Application, we will gather and use information about you for a variety of lawful purposes, including to provide, support and improve the Application, to integrate it with third-party service providers, and to create anonymized data that may be used for lawful business purposes. Our collection and use of data through the Application is governed by and described in more detail in the Privacy Policy included in this Application which you agree to on sign up of your account and on the following website https://www.allayhealth.net/privacy-policy. By using the Application, you agree that data about you may be used in accordance with this Privacy Policy.
7. Payment
We may charge for certain features or to use the Application (or some features of the Application) (“Paid Features”). In the event that you choose to access Paid Features, those Paid Features may be provided with additional terms and conditions that we will present to you at the time of purchase.
Fees owed for Paid Features (if any) will be due in full, and we will charge a current, valid, accepted method of payment, that we collect from you at or before the time of purchase. Upon purchase of any features or access, you authorize us to charge Your Account and Payment Method associated with Your Account.
8. Termination
a. We may terminate this Agreement and your use of the Application and end your account at any time.
b. If you breach any of the terms of these Terms of Service, all licenses granted by us, including permission to use the Application, will terminate automatically. Additionally, we may suspend, disable, or delete your access to the Application (or any part of the foregoing) with or without notice, for any or no reason. If we revoke your access to the Application for any suspected breach of these Terms of Service by you, you are prohibited from re-registering for the Application under a different name. In the event we revoke your use of the Application, we may, but are not obligated to, delete any of Your Data. We will not be responsible for the deletion of (or failure to delete) Your Data. All sections which by their nature should survive the termination of these Terms of Service shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms of Service by us or you. Termination will not limit any of our other rights or remedies at law or in equity.
9. Disclaimer of Warranties & Limitation of Liability
a. YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE APPLICATION, INCLUDING YOUR INTERACTIONS WITH OTHER USERS OF THE APPLICATION. YOU AGREE THAT USE OF THE APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION (INCLUDING, WITHOUT LIMITATION, ANY THIRD-PARTY MATERIALS, THIRD-PARTY SOFTWARE OR SERVICES) ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APPLICATION (INCLUDING THE USE, PERFORMANCE AND SUPPORT OF THE APPLICATION), EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, INTERFERENCE WITH ENJOYMENT, COMPLETENESS, INTEGRATION, FREEDOM FROM DEFECTS OR DISABLING DEVICES, UNINTERRUPTED USE AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT WARRANT THAT (I) THE APPLICATION WILL MEET YOUR REQUIREMENTS, (II) OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE, (III) THAT THE APPLICATION WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM OR DEVICE, OR (IV) DEFECTS IN THE APPLICATION WILL BE CORRECTED. ANY ORAL OR WRITTEN ADVICE PROVIDED BY US OR OUR AUTHORIZED AGENTS WILL NOT BE DEEMED TO CREATE ANY WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
b. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL WE BE LIABLE (I) FOR DAMAGES OF ANY KIND, INCLUDING INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APPLICATION), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OF SERVICE OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE APPLICATION OR THESE TERMS OF SERVICE AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (II) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR THE DELIVERY, USE OR PERFORMANCE OF THE APPLICATION. OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY DISPUTE WITH US (INCLUDING WITHOUT LIMITATION YOUR USE OF THE APPLICATION) IS TO DISCONTINUE YOUR USE OF THE APPLICATION. IN ANY EVENT, IF ANY OF THE ABOVE PROVISIONS IN THIS SECTION ARE NOT ENFORCEABLE IN AN APPLICABLE JURISDICTION, OUR MAXIMUM LIABILITY WILL BE LIMITED TO, AT OUR SOLE DISCRETION, EITHER THE (1) CORRECTION OR DELETION OF ANY INACCURATE CONTENT OR LINK; OR (2) REFUND OF ANY FEES FOR THE APPLICATION RECEIVED BY US FROM YOU.
c. By entering into these Terms of Service and using the Application, you agree that you shall defend, indemnify and hold us, our licensors and their respective parent organizations, subsidiaries, affiliates, officers, directors, members, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) your violation or breach of any term of these Terms of Service or any applicable law or regulation; (b) your violation of any rights of any third-party; (c) any unauthorized use of the Application; (d) your negligence or willful misconduct.
10. Ownership
a. The Application and the content, including the “look and feel” (e.g., text, graphics, images, logos), proprietary content, information, and other materials, are protected under intellectual property, copyright, trademark, and other laws. You acknowledge and agree that we and/or our licensors own all right, title and interest in and to the Application (including without limitation any and all patent, copyright, trade secret, trademark, show-how, know-how and any and all other intellectual property rights in or related to the Application) and you agree not to take any action(s) inconsistent with such ownership interests. You do not acquire any rights or licenses under any of our (or our licensors’) patents, patent applications, copyrights, trade secrets, trademarks, or other intellectual property rights on account of these Terms of Service.
b. Any and all (i) suggestions for correction, change and modification to the Application and other feedback (including but not limited to quotations of written or oral feedback), information and reports provided to us by you (collectively “Feedback”), and all (ii) improvements, updates, modifications or enhancements, whether made, created or developed by us or otherwise relating to the Application (collectively, “Revisions”), are and will remain our property. You acknowledge and expressly agree that any contribution of Feedback or Revisions does not and will not give or grant you any right, title, or interest in the Application or in any such Feedback or Revisions. You agree to assign to us any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback and Revisions.
11. Arbitration and Class Action Waiver
This Section includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a Class Action or other representative proceeding). Please read it carefully. You may opt out of the arbitration agreement by following the opt out procedure described below.
a. Informal Process First. You agree that in the event of any dispute between you and us, you will first contact us and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.
b. Arbitration Agreement. Under these Terms, you agree that any dispute, claim, or controversy arising out of or relating to these Terms of Service or your use of our Application or relating in any way to the communications between you and us or any other user of Use will be finally resolved by confidential binding arbitration administered by Judicial Arbitration and Mediation Services (“JAMS”) in within 50 miles of Seattle, Washington. The arbitration will be conducted according to the JAMS Expedited Procedures for arbitration by a single arbitrator nominated jointly by you and us. If JAMS is not hearing consumer commercial disputes at the time, we may select another arbitral body at its sole discretion. The arbitrator's award will be binding and may be entered as a judgment in a court of competent jurisdiction. This clause shall not preclude us from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction, or to seek injunctive relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of our copyrights, trademarks, trade secrets, or patents. This arbitration agreement does not (a) govern any Claim by us for infringement of our intellectual property or access to the Application that is unauthorized or exceeds authorization granted in these Terms of Service or (b) bar you from making use of applicable small claims court procedures in appropriate cases.
You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and we are each waiving the right to a trial by jury or to participate in a Class Action. This arbitration provision will survive any termination of these Terms of Service.
Class Action Waiver
Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration.
If this Class Action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, will be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If for any reason a claim proceeds in court rather than in arbitration, you and us each waive any right to a jury trial.
12. General Provisions
a. We reserve the right to monitor use of the Application, and to investigate and take appropriate legal action against any party that uses the Application in violation of these Terms of Service or applicable law. We reserve the right to accept, reject or modify any content posted to the Application, but assume no liability based on its acceptance, rejection, modification, or failure to modify any such content.
b. Export Laws. You agree that you will not export or re-export, directly or indirectly the Application and/or other information or materials provided by us under these Terms of Service, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Application may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.
c. U.S. Government Restricted Rights. The Application and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to these Terms of Service.
d. Taxes. You are solely responsible for any and all duties, taxes, levies, or fees (including any sales, use or withholding taxes) imposed on or in connection with these Terms of Service by any authority.
e. Injunctive Relief. You agree that a breach of these Terms of Service will cause irreparable injury to us for which monetary damages would not be an adequate remedy and we will be entitled to equitable relief in addition to any other remedies available to us under these Terms of Service, or at law without a bond, other security, or proof of damages.
f. Miscellaneous. These Terms of Service constitute the entire agreement between you and us regarding your use of the Application. If any term or provision of these Terms of Service is found to be invalid, illegal or otherwise unenforceable, such a finding will not affect the other terms or provisions of these Terms of Service, or the Terms of Service as a whole, but such a term or provision will be deemed modified to the extent necessary to render such a term or provision enforceable, and the rights and obligations of you and us will be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements set forth in these Terms of Service. Your obligations pursuant to these Terms of Service will survive termination of your use of the Application. The JAMS Rules and the laws of Washington State, excluding its conflicts of law rules, govern these Terms of Service and your use of the Application. Your use of the Application may also be subject to other local, state, national, or international laws.
Under California Civil Code Section 1789.3, California users of the Application receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
g. Contact Us. You may contact us regarding the Application or these Terms of Service by mail at Allay Health, Inc www.allayhealth.net or by email at hello@allayhealth.net. These Terms of Service sets forth the entire understanding of the parties with respect to their subject matter.