Date last modified: May 28, 2014
(a) “Content” means any and all information, text, graphics, photos or other materials uploaded, downloaded, or appearing on the Services.
(b) “Platform” means the platform for uploading, viewing, and modifying User Content provided by us to our Users through the Website and mobile application.
(c) “Healbe”, “we”, “us” or similar terms means Healbe Corporation, a Delaware corporation.
(d) “User”, “you”, “your” or similar terms mean the person or legal entity utilizing or accessing the Services.
(e) “User Content” means any and all information, text, graphics, photos or other materials uploaded to the Platform or created using the Service by a User.
(f) “Website” means our website located at http://www.healbe.com.
2. PURCHASE OF HEALBE PRODUCT
(a) Orders. Our order service allows you to order the GoBe online at healbe.com. The GoBe will be available for shipment up to 10 (ten) business days fro the date of order, which is an estimate only and may be changed at any time in our discretion. Due to potential, unanticipated manufacturing delays or difficulties with local customs we cannot guarantee dates of delivery for ordered items. Ordered items are sold on a first come first sold basis. Payment for ordered items must be made when the order is placed. A order cannot be canceled after payment is received. If for any reason we cannot fill your order, a full refund will be issued.
(b) Returns. You may return any product purchased through the Healbe Website within 30 days of purchase in original condition for a full refund based on your original method of payment. Products must be packed in their original packaging including all accessories, manuals, and documentation. You will be responsible for, and pre-pay, all return shipping charges and shall assume all risk of loss or damage to product while in transit to Healbe. We recommend that you use a traceable method of shipping for your protection.
(c) Limited Product Warranty.
(i) One-Year Limited Product Warranty. Healbe warrants that the GoBe is free of defects in materials and workmanship under normal use and service (the “Limited Warranty”) for 1 year from the date of purchase from Healbe only (the “Limited Warranty Period”). Proof of purchase may be required to verify purchase date. If a defect covered by this Limited Warranty occurs during the Limited Warranty Period, Healbe will, at its option, replace the product or refund the original purchase price. The foregoing remedies are purchaser’s sole and exclusive remedy and Healbe’s sole and exclusive liability for breach of the Limited Warranty.
(ii) Exclusions. This Limited Warranty is subject to compliance with the applicable Healbe user guidelines, and specifically excludes normal wear and tear or damage caused by improper or incorrectly performed maintenance, negligence, accident, misuse, abuse or unreasonable use, modification, tampering, use of parts or accessories not manufactured by Healbe or any other causes not related to materials or workmanship. Without limited the foregoing, the GoBe is specifically not intended for use in temperatures about 40є C. This Limited Warranty excludes any replaceable batteries and accessories.
(iii) How to Make a Claim. If the product fails to comply with this Limited Warranty, please contact us at email@example.com. Upon confirmation and approval of your warranty claim, we will, in our sole discretion, either replace, or refund the original purchase price. The purchaser will be responsible for, and will pre-pay, all return shipping charges and shall assume all risk of loss or damage to product while in transit to Healbe.
(d) Warranty Disclaimer. Except as expressly provided herein and where prohibited by law, the Product, the Services, the Platform and the Website are provided “as-is” and “as available” and we expressly disclaim any warranties and conditions of any kind, whether express or implied, including the warranties or conditions of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement. We make no warranty that the Services, the Platform or the Website (i) will meet your requirements; (ii) will be available on an uninterrupted, timely, secure, or error-free basis; or (iii) will be accurate, reliable, free of viruses or other harmful code, complete, legal, or safe. We further make no warranties or representations regarding the accuracy or completeness of the content on any sites linked to the Website.
3. HEALBE SERVICES
(a) Eligibility. You must be at least 13 years of age to open an account with us. Your Healbe account may be deleted and your use of the Services may be terminated without warning, if we believe that you are less than 13 years of age. In addition, minors are not allowed to purchase Products through our Website, and by purchasing Products you declare and represent that you are at least 18 years of age and that you have full legal capacity to complete such contractual action without need for any additional approvals or consents.
(b) Services. Healbe Services consist of (i) the Bluetooth-connected GoBe wearable body monitoring device, which automatically measures a User’s calorie intake, calories burned, heart rate, stress level, hydration levels, and sleep status, and (ii) the Platform that facilitates the monitoring and analysis of the information collected by the GoBe device. Full use of the Healbe Services requires compatible Healbe Products, Internet access, and certain software; may require periodic updates; and may be affected by the performance of these factors.
(c) Right to Use Services. Healbe hereby grants you permission to use the Services and the Platform solely as set forth in this Agreement and in the manner set forth on the Website. In the event of any conflict between the terms of this Agreement and the Website, the terms of this Agreement shall prevail. Any use of the Platform other than as set forth in this Agreement or in violation of any term of this Agreement will result in suspension or revocation of your use privileges in our sole discretion.
(d) Right to Terminate Use of Services. We reserve the right to suspend or terminate the account of any User at any time for failure, or perceived failure, to comply with this Agreement, or for any other reason in our sole discretion.
(e) Intellectual Property Rights.
(i) All Rights Reserved. We retain title to and ownership of all rights (including copyright, trademark, patent, trade secret and all other intellectual property rights) in and to the Product, the Services, the Website, the Platform, and the Content. You acquire no rights whatsoever to all or any part of the Services except for the limited use rights granted by this Agreement. All rights not expressly granted to you are reserved to us.
(ii) Do Not Reproduce. You agree to not engage in the use, copying, or distribution of any of the Content other than as expressly permitted herein, including any use, copying, or distribution of User Content of third parties obtained through the Platform for any purpose. You agree not to circumvent, disable or otherwise interfere with security related features of the Platform or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Platform or any of the Content therein.
(f) Prohibited Uses. You are expressly prohibited from using the Services in any of the following ways or for any of the following purposes:
(i) No Illegal Purpose. You may not use the Services for any illegal or unauthorized purpose, including in any way that violates copyright or other laws applicable in the United States or applicable to you.
(ii) No Tampering. You may not use the Services in a way that is detrimental to the operation of the Services or the access or use of the Services by anyone else. You will not upload or transmit viruses, worms or any other destructive code. The restriction in this Section 3(f)(ii) applies to any use that interferes or attempts to interfere with the normal operations of the Services, including by hacking, deleting, augmenting or altering the Services or any Content.
(iii) Permission Required. You may not, without Healbe’s prior written permission (A) copy, distribute, modify, enhance, translate, reproduce, sell, resell, sublicense, rent, lease, or otherwise attempt to exploit the Services; (B) decompile, disassemble, reverse engineer, or otherwise attempt to discover the source code; (C) make derivative works of the Services; or (D) modify another website so as to falsely imply that it is associated with the Services, Healbe or any other Healbe products or services.
(g) Backup and Storage. We have implemented commercially reasonable technical and organizational measures designed to secure your personal information and User Content from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information or User Content for improper purposes. By using the Services, you acknowledge that you provide your personal information, or information about the entity that you represent, at your own risk.
(h) Feedback. We welcome your feedback or suggestions regarding the Website and the Platform. If you give us feedback or suggestions, you agree that you assign to us all rights to such feedback or suggestions and that we can use such feedback or suggestions in any manner we deem appropriate.
(i) Customer Support. To get in touch with a member of our Customer Support team, please send a message to firstname.lastname@example.org.
4. YOUR HEALBE ACCOUNT
In order to access the Services, you will have to download the mobile application to your smartphone and create an account and become a registered User. Unauthorized use of someone else’s account is expressly prohibited hereunder. The following terms apply to your Healbe account:
(a) User Responsibilities. You are solely responsible for the activity that occurs on your account, including your conduct on the Platform and any and all content you may submit, post or share via the Platform.
(b) User Content.
(i) Ownership of User Content. You represent and warrant that you have the right, power, and authority to post your User Content and to grant the license specified below. You further represent and warrant that by posting such User Content, you will not violate third party rights of any kind. To the extent that your User Content may be copyrightable, your represent and warrant, that you are the owner of all copyright rights to such User Content and that Healbe may exercise the rights to your User Content granted under this Agreement without any liability or obligation for any payment.
(ii) License to Healbe. You maintain all your ownership rights in any User Content you submit to Healbe. You grant Healbe a royalty-free, sub-licensable, transferable, perpetual, irrevocable, worldwide license to use such User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, in connection with the Website, the Platform, and the Services, including without limitation for promoting the Website, the Platform and the Services in any media formats and through any media channels.
(iii) Removal of User Content. We reserve the right to review any User Content and decide, in our sole discretion, whether User Content is appropriate and complies with this Agreement. We may remove any User Content and/or terminate a User’s access for uploading User Content at any time without prior notice and in our sole discretion.
(c) Security. You are responsible for maintaining the security of your account and User Content, and you are fully responsible for all activities that occur under your account and any other actions taken in connection with the Platform. You agree to immediately notify Healbe in writing of any unauthorized uses of your account or any other breaches of security. Healbe cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
(d) Your Representations to Us. By using the Services, you represent and warrant that (i) all registration information you submit is truthful and accurate; (ii) you will maintain the accuracy of such information; (iii) you are 13 years of age or older; and (iv) your use of the Services does not violate any applicable law or regulation.
(e) Promotional Materials. When registering an account with us, you may expressly agree to receive promotional content from Healbe, by mail or email, from time to time. You will also be given an option to opt out of receiving our promotional materials. If you wish to change your election with respect to promotional materials, you may do so on the Website at any time.
5. THIRD PARTIES
(a) Third Party Service Providers. You acknowledge that the Services may allow you to access and use content and services offered by third party service providers. You agree to comply with the relevant terms and conditions of any such third party service provider.
(b) Links to Third Party Sites. The Website may include links to other websites. We do not control or endorse any third party site. You agree that we are not responsible for the availability or contents of any such third party sites. Your use of third party sites is at your own risk.
6. LIMITATION OF LIABILITY
(a) Limitation of Liability. In no event shall Healbe, its officers, directors, employees, or agents, be liable to you or to any third party for any direct, indirect, incidental, special, punitive, or consequential damages whatsoever arising from or related to either this Agreement, or use of the Product, the Services, the Platform or the Website. Our liability to you for any damages arising from or related to this Agreement, will at all times be limited to the amount you have paid to us in the prior 12 months (if any). The existence of more than one claim will not enlarge this limit. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
(b) Third Party Products and Services. Healbe does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Website or any hyperlinked website or featured in any banner or other advertising, and Healbe will not be a party to or in any way be responsible for monitoring any transaction between you and third-party providers of products or services.
(c) Medical Content. Any use of Content, including, without limitation, User Content will be at your own risk. Without limiting the generality of the foregoing, you acknowledge and agree that Healbe is not responsible for any Content that purports to give medical advice or advice regarding fitness training, exercise, or diet. Always seek the advice of a physician or other qualified health provider with any questions you may have regarding a medical condition and prior to starting a diet or physical fitness program.
(d) Other Jurisdictions. We make no representations that the Services, the Platform or the Website are appropriate or available for use in all locations. Those who access or use the Services, the Platform, or Website from jurisdictions prohibiting such use, do so at their own volition and are responsible for compliance with local law.
You agree to defend, indemnify and hold harmless Healbe and its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) your use of and access to the Product, the Services, the Platform, and the Website; (b) your violation of any term of this Agreement; (c) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (d) any claim that your User Content caused damage to a third party. This defense and indemnification obligation will survive the termination of this Agreement and your use of the Product, the Services, the Platform or the Website.
(b) Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Healbe without restriction or limitations.
(c) No Personal Jurisdiction. You agree that: (i) the Services shall be deemed solely based in the State of California; and (ii) the Website shall be deemed a passive website that does not give rise to personal jurisdiction over Healbe, either specific or general, in jurisdictions other than the State of California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles.
(d) Claims. You agree that any cause of action arising out of or related to the Product, the Services, the Platform, or the Website must commence within one (1) year after the cause of action occurs. Otherwise, such cause of action shall be permanently barred.
(e) Severability. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
(f) Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Healbe’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.