Effective Date: November
Last Updated Date: November 30, 2017
THE INFORMATION PROVIDED ON THIS WEBSITE IS NOT INTENDED NOR RECOMMENDED AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER REGARDING ANY MEDICAL CONDITION OR TREATMENT. NOTHING CONTAINED ON THIS WEBSITE IS INTENDED TO BE FOR MEDICAL DIAGNOSIS OR TREATMENT.
SECTION 12 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 12 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.
- Use of the Services and Health Wizz Properties. The Application, the Software, the Site, the Services, and the information and content available on the Site and in the Application, and the Services (as these terms are defined herein) (collectively, the “Health Wizz Properties”) are protected by copyright laws throughout the world. Subject to the Terms, Health Wizz grants you a limited license to reproduce portions of Health Wizz Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Health Wizz in a separate license, your right to use any Health Wizz Properties is subject to the Terms.
- Application License. Subject to your compliance with the Terms, Health Wizz grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business 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 the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
- Health Wizz Software. The Software is embedded in the Health Wizz Application. At no time will Health Wizz provide you with a tangible copy of our Software. Any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis. Subject to your compliance with the Terms, Health Wizz grants you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by the Terms.
- Updates. You understand that Health Wizz Properties are evolving. As a result, Health Wizz may require you to accept updates to Health Wizz Properties that you have installed on your computer or mobile device. You acknowledge and agree that Health Wizz may update Health Wizz Properties with or without notifying you. You may need to update third-party software from time to time in order to use Health Wizz Properties.
- Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Health Wizz Properties or any portion of Health Wizz Properties; (b) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Health Wizz Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Health Wizz Properties; (d) you shall not access Health Wizz Properties in order to build a similar or competitive product or service; and (e) except as expressly stated herein, no part of Health Wizz Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update or other addition to Health Wizz Properties shall be subject to the Terms. Health Wizz, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of Health Wizz Properties terminates the licenses granted by Health Wizz pursuant to the Terms.
- Registering Your Account. In order to access certain features of Health Wizz Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account on the Site or has an account with the provider of the Application for the User’s mobile device (“Account”). [As a Registered User with an Account that uses the Site and Services, you may also [order/receive] certain smart caps for insulin pens and/or kits (“Products”).]
- Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are at least thirteen (13) years old (or such other minimum age of requirement as may be applicable in your jurisdiction) and not a person barred from using Health Wizz Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to notify Health Wizz immediately of any unauthorized use of your password or any other breach of security and exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Health Wizz has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Health Wizz has the right to suspend or terminate your Account and refuse any and all current or future use of Health Wizz Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. You agree not to create an Account or use Health Wizz Properties if you have been previously removed by Health Wizz, or if you have been previously banned from any Health Wizz Properties.
- Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you will have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and will forever be owned by and inure to the benefit of Health Wizz.
- Necessary Equipment and Software. Except for any equipment you receive as part of the Services such as Products, you must provide all equipment and software necessary to connect to Health Wizz Properties, including but not limited to, a mobile device that is suitable to connect with and use Health Wizz Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Health Wizz Properties. By providing your cellphone number and using the Services, you hereby affirmatively consent to our use of your cellphone number for calls and texts in order to perform and improve upon the Services. Health Wizz will not assess and charge for any calls or texts, but standard message charges or other charged from your wireless carrier may apply. You may opt out of receiving text messages from us by emailing [email protected].
- Health Wizz Properties. You agree that Health Wizz, its licensors and suppliers own all rights, title and interest in Health Wizz Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, the Services, or Health Wizz Properties.
- Trademarks. and other related graphics, logos, service marks and trade names used on or in connection with Health Wizz Properties or in connection with the Services are the trademarks of Health Wizz and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Health Wizz Properties are the property of their respective owners.
- Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Health Wizz through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Health Wizz has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Health Wizz a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sub licensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Health Wizz Properties.
- App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (“App Store”). You acknowledge that the Terms are between you and Health Wizz and not with the App Store. Health Wizz, not the App Store, is solely responsible for Health Wizz Properties, including the 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). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Health Wizz Properties, including the Application. 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 Health Wizz Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
- Accessing and Download the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
- You acknowledge and agree that (i) the Terms are concluded between you and Health Wizz only, and not Apple, and (ii) Health Wizz, 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.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- 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 Health Wizz 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 Health Wizz.
- You and Health Wizz acknowledge that, as between Health Wizz 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.
- You and Health Wizz 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 Health Wizz and Apple, Health Wizz, 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.
- You and Health Wizz acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
- Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
- Indemnification. You agree to indemnify and hold Health Wizz , its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Health Wizz Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your use of, or inability to use, Health Wizz Properties; (b) your violation of the Terms; (c) your violation of any rights of another party, including any Users; or (d) your violation of any applicable laws, rules or regulations. Health Wizz reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Health Wizz in asserting any available defenses. This provision does not require you to indemnify any of the Health Wizz Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Site or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to Health Wizz Properties.
- Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF HEALTH WIZZ PROPERTIES IS AT YOUR SOLE RISK, AND HEALTH WIZZ PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. HEALTH WIZZ PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SITE. HEALTH WIZZ MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HEALTH WIZZ OR THROUGH HEALTH WIZZ PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. HEALTH WIZZ PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) HEALTH WIZZ PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF HEALTH WIZZ PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) INFORMATION MADE AVAILABLE THROUGH HEALTH WIZZ PROPERTIES IS UP-TO-DATE, ACCURATE, OR RELIABLE; OR (4) ANY ERRORS IN HEALTH WIZZ PROPERTIES WILL BE CORRECTED. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- Limitation of Liability.
- Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT WILL HEALTH WIZZ PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH HEALTH WIZZ PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT HEALTH WIZZ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF HEALTH WIZZ PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE HEALTH WIZZ PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH HEALTH WIZZ PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON HEALTH WIZZ PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO HEALTH WIZZ PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY WILL NOT APPLY TO LIABILITY OF A HEALTH WIZZ PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A HEALTH WIZZ PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A HEALTH WIZZ PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- Cap on Liability. UNDER NO CIRCUMSTANCES WILL HEALTH WIZZ PARTIES BE LIABLE TO YOU FOR MORE THAN ONE HUNDRED DOLLARS ($100.00). THE FOREGOING CAP ON LIABILITY WILL NOT APPLY TO LIABILITY OF A HEALTH WIZZ PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A HEALTH WIZZ PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A HEALTH WIZZ PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HEALTH WIZZ AND YOU.
- Remedies. In the event that Health Wizz determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for Health Wizz Properties, Health Wizz reserves the right to: (a) warn you via e-mail (to any e-mail address you have provided to Health Wizz) that you have violated the Terms; (b) discontinue your registration(s) with the any of Health Wizz Properties, including any Services or any Health Wizz community; and (c)) pursue any other action which Health Wizz deems to be appropriate.
- Term and Termination.
- Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Health Wizz Properties, unless terminated earlier in accordance with the Terms.
- Termination of Services by Health Wizz. Health Wizz has the right to, immediately and without notice, suspend or terminate any Services provided to you, if you have materially breached any provision of the Terms, or if Health Wizz is required to do so by law (e.g., where the provision of the Site, the Application, the Software or the Services is, or becomes, unlawful). You agree that all terminations for cause will be made in Health Wizz’s sole discretion and that Health Wizz will not be liable to you or any third party for any termination of your Account.
- Termination of Services by You. If you want to terminate the Services provided by Health Wizz, you may do so by (a) notifying Health Wizz at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Health Wizz’s address set forth below.
- Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information and files associated with or inside your Account (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately. All provisions of the Terms, which by their nature should survive, will survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
- No Subsequent Registration. If your registration(s) with or ability to access Health Wizz Properties is discontinued by Health Wizz, you agree that you will not attempt to re-register with or access Health Wizz Properties or any Health Wizz community through use of a different member name or otherwise. In the event that you violate the immediately preceding sentence, Health Wizz reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
- International Users. Health Wizz Properties can be accessed from countries around the world and may contain references to Services that are not available in your country. These references do not imply that Health Wizz intends to announce such Health Wizz Properties in your country. Health Wizz Properties are controlled and offered by Health Wizz from its facilities in the United States of America. Health Wizz makes no representations that Health Wizz Properties are appropriate or available for use in other locations. Those who access or use Health Wizz Properties from other countries do so at their own volition and are responsible for compliance with local law.
- Dispute Resolution; Arbitration. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Health Wizz and limits the manner in which you can seek relief from us.
12.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Health Wizz Properties, or to any aspect of your relationship with Company, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Health Wizz may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).
IF YOU AGREE TO ARBITRATION WITH HEALTH WIZZ, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST HEALTH WIZZ ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST HEALTH WIZZ IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
12.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent
Harvard Business Review
. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Health Wizz will pay them for you. In addition, Health Wizz will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Health Wizz will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
12.3 Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority (a) determine the scope and enforceability of this arbitration agreement and (b) to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Health Wizz. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
12.4 Waiver of Jury Trial. YOU AND HEALTH WIZZ HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Health Wizz are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 12.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
12.5 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Notwithstanding anything to the contrary herein, (a) representative actions for public injunctive relief may be arbitrated on a class basis, and (b) in the event that the foregoing sentence is deemed invalid or unenforceable with respect to a particular claim or dispute for recovery of damages, neither you nor we shall be entitled to arbitration of such claim or dispute and instead the applicable claim or dispute shall be resolved in a court as set forth in Section 13.
12.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Health Wizz, Inc.,2841 Hartland Rd., Falls Church, VA 22043 or [email protected] within 30 days after first becoming subject to this Arbitration. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
12.7 Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
12.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Health Wizz.
12.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Health Wizz makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Health Wizz.
- General Provisions.
- Governing Law and Venue
This Agreement, your access to and use of the Health Wizz Properties shall be governed by and construed and enforced in accordance with the laws of the state of Delaware, without regard to conflict of law rules or principles of the state of Delaware, or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of the state of Delaware, and the United States, respectively, sitting in the state of Delaware.
Notwithstanding anything contained in this Agreement, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Health Wizz Properties, at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.
If any term, clause or provision of this Agreement is held invalid or unenforceable, then that term, clause or provision will be severable from this Agreement and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of this Agreement.
- Export Control
You may not use, export, import, or transfer Health Wizz Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Health Wizz Properties, and any other applicable laws. In particular, but without limitation, Health Wizz Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Health Wizz Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Health Wizz Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, or technology provided by Health Wizz are subject to the export control laws and regulations of the United States. You will comply with these laws and regulations and will not, without prior U.S. government authorization, export, re-export, or transfer Health Wizz products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
The following sections will survive the expiration or termination of this Agreement and the termination of your Account: all defined terms and Sections 1, 8, 9, 10, 11, 12, and 13.
This Agreement constitutes the entire agreement between you and Health Wizz relating to your access to and use of the Health Wizz Properties. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Health Wizz, and Health Wizz’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. Except as otherwise provided herein, this Agreement is intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.
End of Terms