Terms of Use

 

Please read this Terms of Use Agreement (this “Agreement”) carefully as it constitutes a legally binding agreement between you (“you” or “your”) and HealthStrong Inc. (“HealthStrong,” “we,” “us,” or “our”) and it applies to your use of (a) [www.HealthStrong.] (the “Site”); (b) the HealthStrong platform, which allows you to access, upload, attach, purchase, rent, make available and/or use certain content, features, functionality, materials, Provider Content and services (the “Platform”); and (c) any other information, content, applications, features, functionality and services made available on or through the Site and/or the Platform (the functionality described in clauses (a), (b) and (c) above are collectively referred to herein as the “Services”).

 

Any additional terms we may provide regarding other products and services we may offer you are incorporated into this Agreement by reference (the “Additional Terms”). To the extent that there is a conflict between this Agreement and any Additional Terms, the Additional Terms shall govern.  Transparency over how we collect, safeguard and use your information is of significant importance to us.  For more information regarding the collection, use, sharing and transfer of your information, please refer to our Privacy & Cookie Policy which is hereby incorporated into this Agreement by reference.  Any capitalized terms used but not defined herein shall have their respective meanings in the Privacy & Cookie Policy. THIS AGREEMENT CONTAINS A CLASS ACTION WAVIER AND ARBITRATION CLAUSE WHICH MAY AFFECT YOUR RIGHTS.

 

1.         ACCEPTANCE OF TERMS/ELIGIBILITY

By using the Services, you acknowledge and agree that you shall comply with this Agreement. Use of the Services is limited to users who are thirteen (13) years of age or older.  By using the Services, you represent and warrant to us that: (a) you are at least thirteen (13) years of age or older; (b) you have read and understand the terms and conditions of this Agreement and agree to be bound by its terms and conditions; (c) if you are entering into this Agreement on behalf of your employer, you have been legally authorized by your employer to enter into this Agreement and have the authority to bind your employer to this Agreement; and (d) your use of the Services does not violate any law, rule or regulation to which you are subject, including any terms, conditions or requirements promulgated by any provider of Third Party Services (as defined below).  Certain features of the Services may be subject to heightened age and/or other eligibility requirements and restrictions. If you are a user between the ages of thirteen and eighteen (18), please review this Agreement with your parent or guardian. Your parent or guardian should agree to this Agreement on your behalf and parental discretion is advised for all users under the age of eighteen (18).

 

2.         USER REGISTRATION

In order to use the Services, you may be required to register for a user account and create a unique username and password combination (“User Credentials”).  You may also be required to provide certain personal information, including your name, email address, organization name, title, phone number, proof of content ownership and work or educational affiliation (collectively, “User Account”).  We collect, use and store such information in accordance with our Privacy & Cookie Policy. You are solely responsible for the accuracy and content of your information. You are also responsible for maintaining the strict confidentiality of your User Credentials and you are responsible for any access to or use of the Services by you or any person or entity using your User Credentials. You agree to immediately notify HealthStrong of any unauthorized use of your User Credentials or User Account or any other breach of security. It is your sole responsibility to (a) control the dissemination and use of your User Credentials and User Account; (b) control access to your User Credentials and User Account; and (c) cancel your User Account on the Services. We reserve the right to deny access, use and registration privileges to any User of the Services if we believe you have provided inaccurate information or if there is a question about the identity of the person trying to access the Services.  We shall not be responsible or liable for any loss or damage arising from your failure to comply with this Section 2. 

 

3.         INTELLECTUAL PROPERTY RIGHTS

Content Provider Ownership

Except for the rights granted to HealthStrong and users of the Services under this Agreement and any applicable license agreement, you retain all right, title and interest in your Provider Content, your Provider Content Information and any intellectual property rights therein.  For purposes of this Agreement, (i) “Provider Content” shall mean any and all audio-visual and audio-only content, applications, educational materials, tests, quizzes, movies, interactive tools, graphics, images, tools and information you provide to us, upload, attach or make available on or through the Services, whether by means of download, stream, link or otherwise and (ii) “Provider Content Information” shall mean the descriptions, format data, descriptive images and other information related to Provider Content, which you provide to us or make available in connection with your use of the Services, whether by means of download, stream, link or otherwise. 

 

HealthStrong Ownership

As between you and HealthStrong, HealthStrong owns the Services (excluding your Provider Content and Provider Content Information), including all of the content (e.g., audio-visual content, photographs, audio, images, illustrations, graphics, video, copy, software, etc.), code, data and materials displayed on or otherwise made available through the Services, including as contained in any advertisements and the “look and feel” of such content (collectively, “HealthStrong Content”). This includes all intellectual property and proprietary rights in such HealthStrong Content. When you use the Services, or download or access materials from the Services, you do not acquire any ownership of any such HealthStrong Content.  Unless otherwise permitted in this Agreement, the Services are only for your personal use, which is required to be non-commercial in nature. You may not make any commercial use of the Services, or any HealthStrong Content made available on the Services, unless you have received our prior written permission.  HealthStrong grants to you a non-exclusive, non-assignable, nontransferable and limited right and license to use the Services, solely in accordance with the terms and conditions of this Agreement.

Trademarks

The trademarks, logos, service marks and trade names (collectively the “Trademarks”) displayed on the Services are registered and unregistered Trademarks of HealthStrong and may not be used in any manner that is likely to cause customer confusion, or that disparages or discredits HealthStrong. You do not receive, by implication or otherwise, any license or right to use any Trademark or HealthStrong Content displayed on the Services without our prior written permission, which may be withheld in our sole discretion.  

 

Data

As between you and HealthStrong, HealthStrong owns any and all data, statistics, content, play histories and information, in any form or medium, that is collected, downloaded, uploaded or otherwise received, directly or indirectly, from you, any user or Content Provider by or through the Services, including any data, content and information derived or processed by the Services based on your, another user’s or a Content Provider’s use of and access to the Services (collectively, “Data”).  No rights or licenses are granted to you to use the Data under this Agreement and HealthStrong reserves all rights, title and interest therein.

 

Restrictions

Except as we may expressly permit (or, in the case of Provider Content, the applicable Content Provider permits), you may not download, display, copy, distribute, modify, perform, transfer, create derivative works from, sell, or otherwise exploit any Provider Content, Provider Content Information or HealthStrong Content on the Services; provided, however, if you are the owner of the Provider Content and or Provider Content Information, this provision shall not restrict your right to exploit or use your Provider Content and/or Provider Content information. The framing or scraping of or in-line linking to the Services or any Provider Content, Provider Content Information or HealthStrong Content and/or the use of WebCrawler, spidering or other automated means to access, copy, index, process and/or store any Provider Content, Provider Content Information or HealthStrong Content, other than as expressly authorized by us, is prohibited.  You further agree to abide by exclusionary protocols (e.g., Robot.txt, Automated Content Access Protocol (ACAP), etc.) used in connection with the Services.  Additionally, you are not permitted to alter, delete or conceal in any manner any copyright, Trademark or other notices contained on the Services, including, without limitation, notices on any Provider Content, Provider Content Information or HealthStrong Content you transmit, display, print, stream or reproduce from the Services. Any unauthorized or prohibited use of any Provider Content, Provider Content Information or HealthStrong Content may violate or infringe copyright and other laws of the United States and other countries, as well as applicable local and state laws and may subject you to liability for such unauthorized use.

4.         DIGITAL MILLENNIUM COPYRIGHT ACT

We require users to respect our copyrights, trademarks and other intellectual property rights and shall enforce same. We likewise respect the intellectual property of others. If you believe that the Services contain elements that infringe your copyrights in your work, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Agent (as set forth below) with the following information in writing (see 17 U.S.C. 512(c)(3) for further details):

 

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

  • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a representative list of such works on the Services;

  • 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 us to locate the material;

  • Information reasonably sufficient to permit us to contact you, such as an address, telephone number and, if applicable, email address;

  • 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

  • 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.

 

Written notification of claimed infringement must be submitted to the following Designated Agent:

 

HealthStrong Inc.

Email Address of Designated Agent: [security@HealthStrong.com]

Subject Line: Attention: DMCA Copyright Agent

 

For clarity, only DMCA notices should be sent to the Designated Agent and any other feedback, comments, requests for technical support and other communications should be directed to our customer service by sending an email to [support@HealthStrong.com].  You acknowledge and agree that if you fail to comply with all of the requirements of this Section 4, your DMCA notice may not be valid.

 

If you believe that your content 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 applicable law, to make such content available to HealthStrong for use on the Services, you may send a counter-notice containing the following information to our Copyright Agent:

 

  • Your physical or electronic signature;

  • 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;

  • A statement that you have a good faith belief that the content was removed or disabled as a result of a mistake or a misidentification of the content; and 

  • Your name, address, telephone number and email address and a statement that you shall accept service of process from the person who provided notification of the alleged infringement.

 

If a counter-notice is received by our Designated Agent, HealthStrong may send a copy of the counter-notice to the original complaining party informing that person that it 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 the user, the removed content may be replaced, or access to it restored, in ten to fourteen (10-14) business days or more after receipt of the counter-notice, at HealthStrong’s sole discretion.

 

We reserve the right to terminate the User Accounts of repeat infringers. 

 

5.         USER CONDUCT

 

We want to keep the Services safe and enjoyable for everyone and the use of the Services for unlawful or harmful activities is expressly prohibited. 

 

HealthStrong assumes no responsibility for monitoring the Services for inappropriate, false, incorrect, misleading, deceptive or unlawful content, information, materials or conduct posted by or on behalf of a third party.  

 

If at any time HealthStrong chooses in its sole discretion to monitor the Services, HealthStrong nonetheless assumes no responsibility for Provider Content, Provider Content Information or User Postings (as hereafter defined), assumes no obligation to modify or remove any Provider Content, Provider Content Information or User Postings and no responsibility for the conduct of any user. HealthStrong reserves the right to investigate and take appropriate legal action against anyone who, in HealthStrong’s sole discretion, violates, or is suspected of violating, this Section 5, including, without limitation, reporting you to law enforcement authorities. 

 

6.         USER POSTINGS

  

The Services may provide you with an opportunity to submit, post, email or otherwise make available comments, reviews and feedback via the Services (collectively, “User Postings”). We do not acquire any ownership rights in the User Postings, other than the license you grant to us herein. You also represent that you own the User Posting posted by you or otherwise have the right to grant the rights, licenses and privileges described in this Agreement.  We have the right, but not the obligation, to review any User Posting and to delete, remove, move, edit or reject, without notice to you, for any reason or for no reason.  Under no circumstances shall HealthStrong be liable in any way for User Postings, including, without limitation, errors or omissions in any User Postings, or any loss or damage of any kind incurred as a result of any User Postings made available. 

7.         ADDITIONAL TERMS SPECIFIC TO CONTENT PROVIDERS

If you elect to offer or make available Provider Content on or through the Services, you shall be treated as a “Content Provider” and agree to do so solely in accordance with the terms and conditions of this Agreement. Any and all other uses of the Provider Content are strictly prohibited.  

 

Content License  

By submitting, attaching, making available and offering your Provider Content on the Services, you hereby grant to HealthStrong a non-exclusive, worldwide, right and license to copy, transmit, perform, display, modify (solely for formatting purposes), capture, translate, distribute, make available and use your Provider Content and Provider Content Information (including all intellectual property rights embodied therein) on the Services; and in connection with the operation, marketing and/or promotion of your Provider Content (including by capturing and displaying images of your Provider Content) and the Services. 

 

Uploading Provider Content; Compliance with Laws; Responsibility for Provider Content 

By submitting, making available, uploading and offering your Provider Content and Provider Content Information on the Services, you represent, warrant and covenant that you have obtained and shall maintain all necessary rights, licenses, permissions and clearances in order to make your Provider Content and Provider Content Information available and your provision of your Provider Content and Provider Content Information shall not violate any applicable laws, rules or regulations (including any laws regarding content and age rating and the export of data or software to and from all relevant countries) or infringe on the intellectual property rights of any third party.  You are responsible for determining and disclosing the countries in which your Provider Content may legally be made available. You must ensure that your Provider Content and Provider Content information comply with all applicable country specific laws and regulations.  You further represent, warrant and covenant that your Provider Content shall not contain any viruses, malicious code, trojan horse, worm, time bomb, self-help code, back door or other software code or routine designed to (or resulting in): (i) damage, destroy or alter any software, hardware or network; (ii) reveal, damage, destroy or alter any data; (iii) disable any computer program automatically; or (iv) permit unauthorized access to any software, hardware, or network.  You, not HealthStrong, shall be solely responsible for your Provider Content and Provider Content Information and the consequences of submitting, attaching, making available and offering your Provider Content and Provider Content Information on the Services.

 

Right to Reject Content; Content Removal 

HealthStrong shall have the right, in its sole and absolute discretion, to reject, remove or disable access to any of your Provider Content for any reason.  You may elect to have any of your Provider Content removed from the Services by clicking on the Provider Content removal links associated with the applicable Provider Content. HealthStrong will remove your Provider Content from the Services as requested within thirty (30) days after receipt of your request and no longer display your Provider Content on the Services. 

 

Provider Content Placement

Unless otherwise agreed in writing, HealthStrong reserves the right, in its sole discretion, to determine whether or not and when to display your Provider Content in the Services and to display your Provider Content in the Services in any order or level of prominence as it deems appropriate in its sole discretion.

 

Provider Content Support 

You are solely responsible for support and maintenance of your Provider Content. Unless otherwise agreed, HealthStrong shall not have any obligation to provide support or maintenance for any of your Provider Content. You are solely responsible for ensuring your Provider Content’s compatibility with the Services and end users’ devices. You must clearly communicate any compatibility requirements which are necessary for users to use your Provider Content.

 

8.         THIRD PARTY SERVICES AND CONTENT

The appearance, availability or your use of any third party websites (whether in the form of a hyperlink or redirect), platforms (e.g., YouTube), data or materials (“Third Party Services”) referenced or included anywhere in connection with the Services does not constitute an endorsement by, nor does it incur any obligation, responsibility or liability on the part of HealthStrong.  If any Third Party Services you interact with obtains or collects personal information from you, in no event shall we assume or have any responsibility or liability. Accordingly, we encourage you to be aware when you leave the Services or access Third Party Services via the Services and to read the terms and conditions and privacy policy of each Third Party Service you use.

 

9.         ADVERTISEMENTS

From time to time, you may choose to communicate with, interact with or obtain Third Party Services from our advertisers, sponsors or other promotional partners (collectively, “Advertisers”) found on or through the Services or via a hyperlinked website, service or platform. All such communication, interaction and participation is strictly and solely between you and such Advertisers and we shall not be responsible or liable to you in any way in connection with these activities or transactions (including, without limitation, any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the Advertisers or any goods or services you may purchase or obtain from any Advertiser). 

 

10.       PAYMENT, PRICING AND RELATED TERMS 

Fee-Based Services

We may make available certain fee-based transactions, content and other e-commerce services, including without limitation branding services for Content Providers, subscriptions and additional enhancements and questionnaires associated with Provider Content (“Fee-Based Services”).  Certain Fee-Based Services may utilize third party service providers (e.g., Apple, etc.) and all purchases made through these third party service providers are subject to their respective terms and conditions.  HealthStrong is not responsible, and has no liability whatsoever, for goods or services you obtain through our third party service providers or other web sites or web pages.  You agree to pay in full the prices for any purchases made using the User Account registered to you, including all applicable taxes. 

 

Additional Terms and Conditions

HealthStrong may revise any or all of the fees and prices associated with the Fee-Based Services at any time for any or no reason. Further, while we try to be as accurate as possible when describing and displaying our products and services, HealthStrong does not guarantee that product or service descriptions or other content, services or products will be available, accurate, complete, reliable, current or error-free. 

 

Support

If you have a complaint or dispute about a certain charge, or about a certain feature or product made available on or in connection with the Fee-Based Services, you must promptly notify HealthStrong’s customer service of such complaint or dispute by sending a detailed email to [billing@HealthStrong.com]

 

THIRD PARTY PRODUCTS AND SERVICES

WE ARE NOT RESPONSIBLE AND HAVE NO LIABILITY WHATSOEVER FOR GOODS OR SERVICES YOU OBTAIN THROUGH THIRD PARTY SERVICE PROVIDERS OR OTHER WEBSITES, WEB PAGES, APPLICATIONS AND PLATFORMS (EVEN IF ACCESSED WITHIN, THROUGH OR IN CONNECTION WITH THE SERVICES).  ANY SUCH PURCHASES ARE SUBJECT TO THEIR RESPECTIVE TERMS AND CONDITIONS OF USE. 

 

11.       DATA AND WIRELESS ACCESS CHARGES

  

Certain Services may require data access and the provider of data access (e.g., network operator, wireless carrier, etc.) for your device may charge you data access fees in connection with your use of such  including, without limitation, wireless carrier messaging and other communication, messaging and data fees and charges. HealthStrong will not be responsible for any such data access fees and charges in connection with your use of any of the Services. Further, the use or availability of certain Services may be prohibited or restricted by your wireless carrier and/or data access provider and not all Services may work with all wireless carriers, networks, platforms, services or devices.

 

12.       ASSIGNMENT

This Agreement and any rights, licenses and privileges granted herein, may not be transferred or assigned by you, but may be assigned or transferred by HealthStrong without restriction, notice or other obligation to you.

 

13.       MODIFICATIONS

We may modify this Agreement from time to time and at any time, without notice to you, for any reason, in our sole discretion. We may post or display notices of material changes on the Services and/or notify you via other electronic means. The form of such notice is at our discretion. Once we post or make them available on the Services, these changes become effective immediately and if you use the Services after they become effective it will signify your agreement to be bound by the changes. 

 

14.       INDEMNITY

You agree to indemnify, defend and hold HealthStrong, its affiliates and their respective successors and assigns, directors, officers, employees, representatives, agents, licensors, suppliers and service providers harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees), arising in any way out of or in connection with:  (a) your use of the Services or Provider Content; (b) your breach or violation of this Agreement; and/or (c) your Provider Content and/or Provider Content Information. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you and all negotiations for its settlement or compromise and you agree to fully cooperate with us upon our request.

 

15.       DISCLAIMER AND LIMITATIONS OF LIABILITY

THE SERVICES AND ALL CONTENT, PRODUCTS, ADDITIONAL SERVICES AND HEALTHSTRONG CONTENT MADE AVAILABLE ON, THROUGH OR IN CONNECTION THEREWITH, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, OR ANY GUARANTY OR ASSURANCE THAT THE SERVICES WILL BE AVAILABLE FOR USE, BE AVAILABLE OR PERFORM AS DESCRIBED.  ALL IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS RELATING TO THE SERVICES AND ALL CONTENT, PRODUCTS, ADDITIONAL SERVICES AND HEALTHSTRONG CONTENT ARE HEREBY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY MALICIOUS CODE, DELAYS, INACCURACIES, ERRORS OR OMISSIONS ARISING OUT OF YOUR USE OF THE SERVICES, HEALTHSTRONG CONTENT OR PROVIDER CONTENT. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT YOU ARE ASSUMING THE ENTIRE RISK AS TO THE QUALITY, ACCURACY, PERFORMANCE, TIMELINESS, ADEQUACY, COMPLETENESS, CORRECTNESS, AUTHENTICITY, SECURITY AND VALIDITY OF ANY AND ALL FEATURES AND FUNCTIONS OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, HEALTHSTRONG CONTENT OR PROVIDER CONTENT. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THE CAPACITY OF THE SERVICES, IN THE AGGREGATE AND FOR EACH USER, IS LIMITED. CONSEQUENTLY, SOME MESSAGES AND TRANSMISSIONS MAY NOT BE PROCESSED IN A TIMELY FASHION OR AT ALL AND SOME FEATURES OR FUNCTIONS MAY BE RESTRICTED OR DELAYED OR BECOME COMPLETELY INOPERABLE. AS A RESULT, YOU ACKNOWLEDGE AND AGREE THAT WE ASSUME NO LIABILITY, RESPONSIBILITY OR OBLIGATION TO TRANSMIT, PROCESS, STORE, RECEIVE OR DELIVER TRANSACTIONS, HEALTHSTRONG CONTENT OR PROVIDER CONTENT AND YOU ARE HEREBY EXPRESSLY ADVISED NOT TO RELY UPON THE TIMELINESS OR PERFORMANCE OF THE SERVICES FOR ANY TRANSACTIONS OR DELIVERY OF SUCH INFORMATION. SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF CERTAIN WARRANTIES OR CERTAIN LIMITATIONS ON DAMAGES AND REMEDIES, ACCORDINGLY SOME OF THE EXCLUSIONS AND LIMITATIONS DESCRIBED IN THIS AGREEMENT MAY NOT APPLY TO YOU.

 

YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, HEALTHSTRONG, OUR AFFILIATES AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, LICENSORS, OPERATORS, SUPPLIERS AND SERVICE PROVIDERS, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, OF ANY KIND, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING FROM USE OF THE SERVICES OR FROM THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES.  YOU FURTHER ACKNOWLEDGE AND AGREE THAT WE SHALL HAVE NO LIABILITY WITH REGARD TO THE INFORMATION YOU UPLOAD, PROVIDE OR MAKE AVAILABLE THROUGH THE SERVICES, INCLUDING PROVIDER CONTENT. 

 

16.       USER SUPPORT

For assistance with technical issues and other questions, please contact us at [support@HealthStrong.com].

 

17.       GOVERNING LAW; MISCELLANEOUS

 

A.         This Agreement contains the entire understanding and agreement between you and HealthStrong concerning the Services and supersedes any and all prior or inconsistent understandings relating to the Services and your use thereof. This Agreement cannot be changed orally. If any provision of this Agreement is held to be illegal, invalid or unenforceable, this shall not affect any other provisions and this Agreement shall be deemed amended to the extent necessary to make it legal, valid and enforceable. Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of this Agreement; however, no action arising out of this Agreement or your use of the Services, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such case arose).  The failure of HealthStrong to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision.  

 

B.         This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of New Jersey, exclusive of conflict or choice of law rules.  Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Essex County, New Jersey before one arbitrator. The arbitration shall be administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.  The parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. In any arbitration arising out of or related to this Agreement, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.  Each of you and HealthStrong agree to adopt and implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of this Agreement) with respect to any final award in an arbitration arising out of or related to this Agreement. Nothing in this Section 17(B) shall preclude any party from seeking a preliminary injunction or other provisional relief, from compelling arbitration or from confirming or vacating an award, to the extent authorized by the Federal Arbitration Act. either prior to, during or after invoking the procedures in this Section 17(B), if in its judgment such action is necessary to avoid irreparable damage or to preserve the status quo.  Any legal proceeding referenced in the foregoing sentence or that is not able to be arbitrated in accordance with the terms hereof shall be commenced in the federal or state courts sitting in the County of Essex in the State of New Jersey, and any appellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts.   EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 17(B).

 

C.         TO THE EXTENT ALLOWED BY LAW, EACH OF YOU AND HEALTHSTRONG WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASS WIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY ARBITRATION.

 

D.         The Services are controlled by HealthStrong from its offices in the U.S. HealthStrong makes no representation or warranty that the Services or HealthStrong Content contained on or made available in connection therewith is legal, appropriate or available for use in other locations. Those who choose to access the Services from other locations do so at their own risk and are responsible for compliance with any and all local laws, rules and regulation, if and to the extent local laws, rules and regulations are applicable. No software made available in connection with the Services may be downloaded, exported or re-exported into (or to a national or resident of) any countries that are subject to U.S. export restrictions.

 

Copyright © 2021 HealthStrong Inc.

Last updated:  December 7th, 2021