Terms of Service
LAST UPDATED: 5/19/22
Please read this terms of service agreement (the “Agreement”) carefully. By accessing or using this website or any other websites, mobile sites, services, applications, platforms and tools where this Agreement appears or is linked (collectively the “Site”) of Hiya Health Products, LLC (“Hiya Health” “us” or “we” or “our”), its affiliates or agents with links to this Agreement) in any way, including using the services and resources available or enabled via the Site (each a “Service” and collectively, the “Services”), completing the account registration process, or making a purchase, you represent that (1) you have read, understand, and agree to be bound by the terms of this Agreement, (2) you are of legal age to form a binding contract with the us, and (3) you have the authority to enter into this Agreement. If you do not agree to be bound by the terms of this Agreement, you may not access or use this Site or the Services.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”), and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service.
The Supplemental Terms shall be governed by the terms of this Agreement. If this Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
CHANGES TO THIS AGREEMENT
It is your responsibility to review this agreement periodically. We may revise this Agreement, in our sole discretion, at any time without notice to you. If you do not agree to this Agreement, please do not use this Site or the Services.
When changes are made, we will make a new copy of the Agreement available at the Site. We will also update the “Last Updated” date at the top of the Agreement. If we make any material changes, and you have registered to use the Services, we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Agreement. Any changes to the Agreement will be effective immediately. We may require you to provide consent to the updated Agreement in a specified manner before further use of the Site or the Services is permitted. If you do not agree to any change(s), after receiving a notice of such change(s), you must stop using the Site and/or the Services. Otherwise, your continued use of the Site and/or Service s constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT AGREEMENT.
When you purchase a subscription you'll receive repeat deliveries. These are based on the subscription duration and frequency that you select. Your payment details will be stored securely and you'll be charged for each of these deliveries, unless you choose to pay in advance. Some subscriptions may auto-renew at the end of their duration for additional periods of the same duration at Hiya Health’s then-current fee for such Services unless you cancel your subscription in accordance with the terms set forth herein. You may cancel or change your subscription at any time.
Your order confirmation emails have links to your order. You can manage your subscription from there. See our Refund Policy below for more details on returns and refunds.
We reserve the right to change, edit, suspend, delete and/or cancel any part of the Site or the Services, or we may terminate this Agreement, and/or your permission to use the Site or the Services immediately, without prior notice or liability, if: (a) you commit any breach of this Agreement; (b) we discontinue the Site or the Services, (c) we are prevented from providing the Site or Services for any reason, (d) if required by law, or (e) due to an event beyond our control.
On termination of this Agreement for any reason: (a) all rights granted to you under this Agreement will cease immediately, (b) you must immediately cease all activities authorized by this Agreement (including your use of the Site or Services), and (c) you acknowledge that we may restrict your access to the Site. Any provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive the termination or expiration of this Agreement and continue in full force and effect thereafter.
PERMITTED USE AND RESTRICTIONS
Subject to the terms and conditions of this Agreement, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable license to access and use the Site and Services (including updates and upgrades that replace or supplement them in any respect and which are not distributed with a separate license, and any documentation) for your personal use on a device that you own or control.
You must not use (or permit a third-party to use) the Site: (a) in any unlawful manner, for any unlawful purpose, or to act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Site or any operating system used by the Site, (b) in a way that could damage, disable, overburden, impair or compromise our systems or security, or interfere with other users, (c) to collect or harvest any information or data from the Site or our systems or attempt to decipher any transmissions to or from the servers running the Site, (d) link our products on or to any third party e-commerce Site, marketplace or mobile application without our specific written consent; (e) to send, knowingly receive, upload, download, use or re-use any material which does not comply with this Agreement, (f) to transmit, or procure the sending of, any unsolicited or unauthorized advertising or promotional material or any other form of similar solicitation (spam), or (g) for any other purpose that is to Hiya Health’s or its customers’ or partners’ detriment or commercial disadvantage.
Further, (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Site or Services, (b) you shall not frame or utilize framing techniques to enclose any of our trademarks, logos, or other intellectual property (inc1uding images text, page layout or form); (c) you shall not use any metatags or other “hidden text” using our name or trademarks; (d) you shall not and you shall not cause, permit or authorize another party to modify, copy, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer, or hack any part of the Site except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) 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 any web pages contained in the Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Site; (h) you shall not cause, permit or authorize the modification, copy, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Site; (i) you shall not use the Site for any unlawful, prohibited, abnormal or unusual activity as determined by Hiya Health in our sole discretion; and (j) you shall not use the Site in any way not intended by Hiya Health. Any future release, update or other addition to the Site shall be subject to this Agreement. We, our suppliers and service providers expressly reserve all rights not granted in this Agreement. Any unauthorized use of the Site or Services terminates the licenses granted by us pursuant to this Agreement.
You acknowledge and agree that you are solely responsible, and Hiya Health has no responsibility or liability to you or any other person or entity for, any breach by you of this Agreement or for the consequences of any such breach. You agree to promptly report to Hiya Health any violation of this Agreement by others.
You agree not to provide inaccurate, misleading, or false information, including personal information, to Hiya Health or to any other user. If information provided by you, including personal information, to Hiya Health or another user subsequently becomes inaccurate, misleading, or false, you will promptly update the information. Hiya Health is not responsible nor is Hiya Health obligated to review any information, including any personal information, provided by you for its accuracy. In addition to the terms set forth herein, you agree NOT to provide us with any protected health information (i.e. information regarding medical conditions, diagnosis, or treatments), including, but not limited to demographic data that relates to:
- an individual’s past, present or future physical or mental health or condition;
- the provision of health care to an individual;
- the past, present, or future payment for the provision of health care to an individual; or
- any information that identifies an individual or for which there is a reasonable basis to believe it can be used to identify the individual.
To create an account and/or make purchases through the Site, you may be asked to submit certain information, which may include your name and/or a username, email address, and password. All of the information you provide to Hiya Health must be accurate and complete. You agree to keep this information up to date; failure to do so may result in termination of your account or an inability to access the Site. Each time you use your password or identification, you will be deemed to be authorized to access and use the Site in a manner consistent with this Agreement and we have no obligation to investigate the authorization or source of any such access or use of the Site.
YOU WILL BE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THIS SITE AND YOUR ACCOUNT BY ANYONE USING YOUR PASSWORD AND IDENTIFICATION WHETHER OR NOT SUCH ACCESS TO AND USE OF THIS SITE OR YOUR ACCOUNT IS ACTUALLY AUTHORIZED BY YOU, INCLUDING WITHOUT LIMITATION, ALL COMMUNICATIONS AND TRANSMISSIONS AND ALL OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, FINANCIAL OBLIGATIONS) INCURRED THROUGH SUCH ACCESS OR USE. You represent and warrant that: (i) you will be the only person accessing the Site through the account you create, (ii) you will keep your account credentials, including password, secure, and (iii) you will notify Hiya Health of any suspected breach of security or unauthorized use of your account.
You are solely responsible for protecting the security and confidentiality of your password and identification. We are not liable for any damages that result from unauthorized account access or use. You are solely responsible for the use of your account, how you use the Site and your interactions with third parties through your use of the Site. You acknowledge that Hiya Health is not liable for third-party access to your account that results from theft or misappropriation of your user name and password including any activities that occur using your account after any improper access event, theft or misappropriation. You shall immediately notify us of any unauthorized use of your password or identification or any other breach or threatened breach of this Site’s security.
If you purchase a subscription to our Services through our Site, you will receive an initial package with your refillable bottle including your thirty (30) day supply of vitamin supplements. Every thirty (30) days thereafter, on the first day following the end of the previous thirty (30) day period, we will send you a shipment containing an additional thirty (30) day supply of the vitamin supplements you previously ordered (each, a “Renewal Commencement Date”), at our then-current price for such subscription. Our subscription term is a recurring thirty (30) day period so that you do not run out of your vitamin supplements at the end of each month.
There is no subscription fee associated with your subscription. You will only be charged for the cost of the product and any relevant cost of shipping and handling. If your initial order includes a discount for your first order, you will be charged the non-discounted subscription amount for all subsequent months, unless your discount is said to expressly apply for all future months.
By subscribing, you authorize us to charge your payment provider now, and again on any Renewal Commencement Date. We may send you an email reminder prior to charging your payment provider on such Renewal Commencement Date.
We accept the following bank or credit cards: Visa, MasterCard, American Express and Discover. At the time of your first order, we will request shipping and payment information. You agree that we may update your payment information with information your bank or credit card issuer may supply, or other information available to us.
You may be charged local tax, if applicable. If your payment method is declined, we will attempt to process your charge until the transaction is approved. If we are unable to complete the transaction, we may contact you directly to update your account information.
We reserve the right to modify our fees for our products or shipping at any time. We will inform you of this at least 30 days before the change takes effect. You will have the opportunity to cancel the subscription before the price change occurs. When we notify you of the price change, we will also inform you that it will take effect if you do not cancel the subscription. Once the thirty (30) day period of validity ends, and as long as you have not canceled the subscription after receiving our information, we will charge you for the subscription at the new price. If you do not agree with the price change, you must cancel and stop using the subscription version before the Renewal Commencement Date when the change takes effect.
We use a third-party service provider for payment services (e g. credit card transaction processing, merchant settlement, and related services). You hereby consent to provide and authorize Hiya Health and its third-party service provider to share any information and payment instructions you provide to the extent required to complete payment transactions in accordance with this Agreement, including personal, financial, credit card payment, and transaction information. Upon initial registration of your payment method, you may see a pending charge as part of the authorization confirmation process. This is not a charge and is used to confirm account authenticity. The pending charge should automatically clear on its own. If you have any issues, please contact email@example.com.
We are not responsible for any fees or charges that your bank or credit card issuer may apply.
Currently, we only ship to addresses within the US and Southern Canada.
We will use best efforts to send your product within 3-5 business days of order using USPS, UPS, or FEDEX.
The risk of loss and title for items purchased by you passes to you upon our delivery of the items to the carrier.
Your subscription will continue, and you will be charged, every thirty (30) days, until you choose to cancel. However, please note that all fees for the Services are non-refundable, so if you cancel your subscription the Renewal Commencement Date, we will send you any outstanding supply of vitamin supplements you purchased but we will not refund you any amounts for shipments not received as of the date of cancellation. You agree that your account will be subject to this automatic renewal feature unless you cancel your subscription at any time prior to the Renewal Commencement Date by emailing us at firstname.lastname@example.org.
If you choose to cancel your subscription at any time, your subscription will terminate automatically and we will not charge your payment provider on the next Renewal Commencement Date. You agree that we may either terminate or suspend your subscription for any reason at any time in our sole discretion.
If you would like to request a refund, please contact us at email@example.com. Any refunds will be issued by us in our sole discretion. Refunds shall not apply to discounted orders unless Hiya Health expressly agrees.
The Services allow registered users to post reviews, ratings and comment s about products sold on the Site (collectively, “Reviews”), and you are solely responsible for any content, opinion, statement, recommendation or advance contained therein. Reviews posted on our Site may not be endorsed by Hiya Health and may not represent the views of Hiya Health. You acknowledge that any opinions, statement, recommendation, ratings, offers, advice or other information presented or disseminated in any Review are those of their respective authors who are solely responsible and liable for their content. That means that you, and not Hiya Health, are solely responsible and liable for any Reviews that you post, including the content contained therein. By posting a Review, you grant Hiya Health a nonexclusive, royally free, perpetual, transferable, irrevocable and fully sublicensable right to (a) host, use, reproduce, modify, run, adapt, translate, distribute, publish, create derivative works from and publicly display and perform such Review of yours throughout the world in any media, now known or hereafter devised; (b) make the Review available to the rest of the world and to let others do the same; (c) to provide, promote, and improve the Services and to make your Review shared on the Site available to other companies, organizations or individuals for the syndication, broadcast, distribution, promotion or publication of such Review of yours on other media and services, subject to this Agreement; and (d) use the name and/or trademark that you submit in connection with such Review of yours. You acknowledge that Hiya Health may choose to provide attribution of your Review at our discretion, You further grant Hiya Health the right to pursue at law any person or entity that violates your or Hiya Health’s rights in your Review by a breach of this Agreement. You acknowledge and agree that your Review is nonconfidential and non-proprietary. You affirm, represent and warrant that you own or have the necessary licenses, rights (including copyright and other proprietary rights), consents and permissions to publish and otherwise use (and for Hiya Health to publish and otherwise use) your Review as authorized herein.
Hiya Health reserves the right to refuse to post or remove any material submitted or posted in any Review in its sole discretion. Notwithstanding the foregoing, you acknowledge that Hiya Health is under no obligation to edit or modify any information available in any Reviews or decide any dispute or disagreement between the posters and shall have no liability to you for any content posted in a Review. Hiya Health does not assume liability for Reviews or for any claims for economic loss resulting from such ratings and Reviews. You agree: (i) to base any rating or review you post only on your first-hand experience with the product you are reviewing; (ii) you will not submit a rating or Review in exchange for payment or other benefits from any individual or entity; and (iii) your Review will comply with the terms set forth herein. If Hiya Health determines, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews, we may exclude such Review without notice. We may, but are not obligated to, monitor or review our Site at any time. If we become aware of any possible violations by you of this Agreement or applicable law, we reserve the right to investigate such violations, and we may, at our sole discretion, immediately terminate your license to use the Site. You understand and agree that Hiya Health may, but is not obligated to, review and delete (without notice) any information that Hiya Health in its sole discretion determines violates this Agreement, violates the rights of another person or entity, or which might be offensive, illegal or threaten the safety of others. Specifically, Hiya Health may remove any Reviews in the event it determines, in its sole discretion, that a Review:
1. Is false, unlawful, misleading, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing (or advocates harassment of another person), threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
2. Is patently offensive to the online community, such as that which promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
3. Would constitute, encourage, promote or provide instructions for conduct of an illegal activity, a criminal offense, give rise to civil liability, violate the rights of any party in any country of the world, or that would otherwise create liability or violate any local, national or international law, including, without limitation, the regulations of the U.S. Securities and Exchange Commission (SEC) or any rules of any securities exchange, including but not limited to, the New York Stock Exchange (NYSE) and/or the NASDAQ;
4. Provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy or providing or creating computer viruses;
5. May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
6. Constitutes mass mailings or “spamming”, “junk mail”, “chain letters” or “pyramid schemes”;
7. Impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity, including Hiya Health;
8. Is private information of any third party, including, without limitation, addresses, phone numbers, email addresses, social security numbers and credit card numbers;
9. Include or are intended to facilitate viruses, corrupted data or other harmful, disruptive or destructive files;
10. Is unrelated to the topic of the Reviews or products in which such Review is posted;
11. Is otherwise objectionable to Hiya Health is in its sole discretion,
12. Restricts or inhibits any other person from using or enjoying the Services, or
13. May expose Hiya Health or its users to any harm or liability of any type.
By agreeing to this Agreement or using the Site, you agree to receive communications from us, including via email, text message, or telephone. Communications from us may include communications concerning marketing materials or responses to your inquiries. If you no longer want to receive our newsletter, emails or other marketing communications, you may unsubscribe at any time by following the “unsubscribe” link at the bottom of our emails. If you no longer which to receive telephone or text messages communications from us, please see the Mobile Messaging Service section below on how you can opt-out.
Mobile Messaging Service
If you have opted in, Hiya Health may provide updates, alerts, information, promotions, specials, questions and other marketing offers (e.g., cart reminders) via text messages through your wireless provider to the mobile number you provided (the “Mobile Services”). The Mobile Services may be sent using an automatic telephone dialing system or other technology. Your consent to the Mobile Services is not required as a condition of purchasing any goods or services. Your use of the Mobile Service constitutes your agreement to these terms and conditions. We may modify or cancel the Mobile Service or any of its features without notice. We may also modify this Agreement at any time and your continued use of the Mobile Service following the effective date of any such changes shall constitute your acceptance of such changes.
We do not charge for the Mobile Service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message and data rates may apply. Please contact your wireless carrier for information about your messaging plan. Your carrier may impose message or charge limitations on your account that are outside of our control. All charges are billed by and payable to your wireless carrier. Message frequency varies.
To opt out of the Mobile Services and stop receiving any messages at any time, text the single keyword command STOP to 844-388-4482 . You’ll receive a one-time opt-out confirmation text message. If you have subscribed to other Hiya Health mobile message programs and wish to cancel, you will need to opt out separately from those programs by following the instructions provided in their respective mobile terms. For Service support or assistance, text HELP or email at firstname.lastname@example.org.
We may change any short code or telephone number we use to operate the Mobile Service at any time and will notify you of these changes. You acknow1edge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages.
The wireless carriers supported by the Mobile Service are not liable for delayed or undelivered messages. You agree to provide us with a valid mobile number. You agree to maintain accurate, complete, and up-to-date information with us related to your receipt of messages, including, without limitation, notifying us immediately if you change your mobile number.
You agree to indemnify, defend, and hold us harmless from any third-party claims, liability, damages or costs arising from your use of the Mobile Service or from you providing us with a phone number that is not your own.
You agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through the Mobile Service, any errors in such information, and/or any action you may or may not take in reliance on the information or Service.
While we try to maintain the timeliness, integrity and security of the Site, the Site may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Site. While we take reasonable precautions to prevent the existence of computer viruses and/or other malicious programs, we accept no liability for them.
THEREFORE, WE DO NOT PROMISE, COVENANT, REPRESENT, WARRANT OR GUARANTEE THAT YOU OR ANY OTHER USER OF THE SITE OR SERVICES WILL OBTAIN ANY PARTICULAR OR TANGIBLE RESULT OR GOAL THROUGH THE USE OF THE SITE, OR ANY PRODUCT OR SERVICE MADE AVAILABLE ON OR THROUGH THE SITE.
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED, THE SITE, THE SERVICES AND THE PRODUCTS OFFERED ON THE SITE ARE PROVIDED ON AN “AS IS”AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES AND GUARANTEES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
WE DO NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED ON THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE DEFECTS WILL BE CORRECTED OR THAT THE SITE, THE SERVICES, OR THE SERVER THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF THE SERVICES OR THE MATERIALS ON THE SITE IN TERMS OF THEIR CORRECTNESS. ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE. APPLICABLE LAW MAY NOT ALLOW LIMITATIONS OR EXCLUSIONS ON WARRANTIES SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR THROUGH THE SITE OR SERVICES, INCLUDING IN CONNECTION WITH THE PRODUCTS OFFERED THROUGH THE SITE, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
NOTICE REGARDING MEDICAL ADVICE.
THIS SITE DOES NOT PROVIDE MEDICAL OR OTHER LICENSED PROFESSIONAL ADVICE. NOTHING STATED OR POSTED ON THIS SITE OR AVAILABLE THROUGH ANY SERVICES ARE INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE. THE SITE MATERIALS, SUCH AS TEXT, GRAPHICS, IMAGES, AND INFORMATION OBTAINED FROM THIS SITE ARE FOR INFORMATIONAL PURPOSES ONLY. THE SITE IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF INFORMATION YOU HAVE OBTAINED THROUGH THIS SITE. RELIANCE ON ANY CONTENT ON THIS SITE IS SOLELY AT YOUR OWN RISK. INFORMATION PROVIDED ON THE SITE DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND ANY OF THE HEALTH PROFESSIONALS AFFILIATED WITH THE SITE (IF ANY).
IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY.
YOU ACKNOWLEDGE AND AGREE THAT WE ARE NOT COVERED BY AND THEREFORE, ARE NOT COMPLIANT WITH, THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (HIPAA) AND RELATED REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ANY APPLICABLE COMPLIANCE WITH FEDERAL OR STATE LAWS GOVERNING THE PRIVACY AND SECURITY OF PERSONAL INFORMATION, INCLUDING MEDICAL OR OTHER SENSITIVE DATA. YOU ACKNOWLEDGE THAT THE SITE MAY NOT BE APPROPRIATE FOR THE STORAGE OR CONTROL OF ACCESS TO SENSITIVE DATA, SUCH AS MEDICAL OR HEALTH INFORMATION AND “PROTECTED HEALTH INFORMATION” (ALSO KNOWN AS PHI) AS DEFINED UNDER HIPAA. WE SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY THAT THE SITE, AS OFFERED, COMPLIES WITH HIPAA. WE DO NOT SIGN “BUSINESS ASSOCIATE AGREEMENTS” AND YOU ACKNOWLEDGE THAT WE ARE NOT A BUSINESS ASSOCIATE, SUBCONTRACTOR, OR AGENT OF YOURS PURSUANT TO HIPAA.
LIMITATION OF LIABILITY
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL WE, OR OUR AFFILIATES, AND THEIR RESPECTIVE BUSINESS PARTNERS, LICENSEES, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (THE “INDEMNIFIED PARTIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH THE SITE, THIS AGREEMENT OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, ANY BREACH OF SECURITY OR ANY DAMAGE TO YOUR DEVICE, PERSONAL INJURY, EMOTIONAL DISTRESS, PROPERTY DAMAGE, OR LOSSES ARISING OUT OF YOUR USE OF OR RELIANCE ON THE SITE, OR YOUR INABILITY TO ACCESS OR USE THE SITE WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ON ANY THEORY OF LIABILITY WHETHER FRAMED IN CONTRACT, TORT, OR STRICT LIABILITY, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF THE INDEMNIFIED PARTIES.
Your sole remedy for dissatisfaction with the Site or the Services including, without limitation, content on the Site, is to stop using the Site and/or terminating your use of the Services. Such limitation shall also apply with respect to any information or advice received through or advertised in connection with the Site or any links on the Site.
In the event the foregoing exclusion of liability is determined, in whole or in part, to be invalid or unenforceable, then the Indemnified Parties’ liability arising in connection with the Site, or under this Agreement whether in contract, tort (including without limitation negligence, strict liability and other actions in contract or tort) or otherwise, shall not exceed, under any circumstances, the amount received by us as a result of your use of the Services in the subscription period during which you first, assert a claim. If you have not paid Hiya Health any amounts in the subscription period during which you first assert any such claim, the Indemnified Parties sole and exclusive liability shall be limited to fifty dollars ($50).
These limitations of liability shall apply even if a limited remedy fails of its essential purpose. You agree that any claim or cause of action arising under this Agreement, in relation to our Site or Services, or the performance or non-performance of the Site or Services must be brought within one year after such claim or cause of action arises or be forever barred. The limitation of liability herein applies to all liabilities in the aggregate, including, without limitation, those resulting from your use or your inability to use the Site, or from any Third-Party Sites, including from any virus that may be transmitted in connection therewith, or any other matter arising from or relating to the Site or the Services.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE INDEMNIFIED PARTIES’ LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON THE CHOICE OF LAW PROVISION SET FORTH BELOW.
COPYRIGHT AND TRADEMARKS
The technology underlying the Site and the entire contents of the Site is copyrighted as a collective work under the United States and other copyright laws, and is the property of Hiya Health Products LLC and protected by copyright and other intellectual property or proprietary rights. All trademarks, service marks and trade names of Hiya Health Products LLC on the Site, including the HIYA mark, are trademarks or registered trademarks of Hiya Health Products LLC or their respective owners. You do not have the right to use any of our trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws. You acknowledge that all intellectual property rights to Hiya Health, the Site, the Services, Hiya Health’s trademarks copyrights, whether registered or unregistered, including but not limited to rights in graphics, logos, “look and feel,”, trade dress, structure, organization, code, any Site-related software, data, text, images, graphics, proprietary algorithms, logos, user interface, audio clips, digital downloads, data compilation or code and videos displayed through the Site and all content in the Site and compilation thereof and ownership of all intellectual property rights relating to the Site and Services, anywhere in the world, belong to us or our licensors and are valuable trade secrets and confidential information of Hiya Health and/or our licensors, protected by intellectual property laws. You acknowledge and agree that Hiya Health, or its licensors, owns all right, title and interest in and to the Site and Services, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the Site and Services are protected by U.S. and international copyright laws. Further, you acknowledge that the Site and Services may contain information that Hiya Health has designated as confidential and you agree not to disclose such information without Hiya Health's prior written consent. Nothing posted on the Site grants a license to any Hiya Health or our licensor’s trademarks, copyrights, or other intellectual property rights, whether by implication, estoppel or otherwise. You should assume that everything you see or read on the Site is proprietary information protected by copyright or trademark unless otherwise noted and may not be used except with the written permission of Hiya Health or where indicated, our licensors. You are authorized to use Hiya Health content only as expressly authorized at the point of interacting with of such materials. Nothing in this Agreement transfers ownership of such rights. When accessing the Site or the Services, you agree to obey the law and to respect the intellectual property rights of others. Your use of the Site and Services is at all times governed by and subject to laws regarding copyright.
COMPLIANCE WITH LAWS
You may use the Site and Services only for lawful purposes. The Site and Services are subject to, and you agree that you will at all times comply with, all applicable local, state, national, and international laws, statutes, rules, regulations, ordinances and the like applicable to the use of the Site and Services.
NOTICE FOR CALIFORNIA RESIDENTS PURSUANT TO CA CIVIL CODE SECTION 1789.3
Under California Civil Code Section 1789.3, California users of an electronic commercial service receive the following consumer rights notice: California residents may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R. Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
To the fullest extent permitted under applicable law, you agree to indemnify, defend and hold harmless the Indemnified Parties from and against all claims, demands, losses, causes of action, debt, judgments, awards, liabilities, expenses, damages, costs, fees, and expenses including reasonable attorneys’ fees, to the extent that such action is based on, arises out of, or is resulting from (a) any breach, violation, or alleged violation of this Agreement; (b) any activity related to use of the Site or Services (including all Reviews by you through the Site and any negligent or wrongful conduct) by you; (c) any other person accessing the Site using your account, or your ability or inability to use the Site and Services, including any products purchased thereon (d) your violation of the rights of any third-party; or (e) any other activities of yours accomplished using the Site. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, which shall not excuse your indemnity obligations. In such event, you shall provide the Indemnified Parties with such cooperation as is reasonably requested by the Indemnified Parties
THIRD-PARTY LINKS AND SITES
This Site may link to other websites operated by third parties and materials made available by third parties, including our third-party licensors, (collectively, “Third-Party Site”). We have no control over, nor are we responsible for, these Third Party Sites and any Intellectual Property Rights therein, their contents, accuracy, validity, timeliness, completeness, reliability, integrity, legality, usefulness, safety, actions, and/or availability. Nothing in this Agreement will be deemed to be a representation or warranty by us with respect to any Third-Party Sites. We have no obligation to monitor Third-Party Sites, and we may block or disable access to any Third-Party Sites (in whole or part) through the Site at any time. In addition, the availability of any Third-Party Sites through the Site does not imply our endorsement of, or our affiliation with, any provider of such Third-Party Sites, nor does such availability create any legal relationship between you and any such provider. Each Third-Party Site has its own separate privacy and data collection practices independent of Hiya Health. Your use of the Third-Party Site or locations will be governed by their terms and conditions and privacy policies (if any) (“Third-Party Terms”). It is your responsibility to read and comply with Third-Party Terms. You should contact the site administrator for the applicable third party site if you have any concerns regarding such links or the content located on any such third party site.
You agree that submission of any ideas, suggestions, documents, and/or proposals to us through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that we have 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 us a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-form at, 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 the Site and Services.
Your use of the Site shall be governed in all respect s by the laws of the state of Delaware, USA, without regard to choice of law provisions. You and Hiya Health hereby submit and consent, except as otherwise provided below, to the exclusive jurisdiction of any state or federal court located within Los Angeles, California and irrevocably agree that all actions or proceedings between you and Hiya Health shall be brought, maintained and litigated exclusively in such courts, and each of you and Hiya Health waives any objection which it may have based on improper venue or forum non conveniens to the conduct of any such action or proceeding in such court. Notwithstanding the foregoing, Hiya Health shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
This Agreement and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Notwithstanding the foregoing, we may transfer our rights and obligations under this Agreements to another organization, but this will not affect your rights or our obligations under this Agreement.
We shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages or delays of transportation or shipping facilities, fuel, energy, labor or materials.
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any portion of this Agreement is held to be invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
You acknowledge and agree that Hiya Health would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to any breach of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship or other relationship between the parties or any of their affiliates is intended or created by this Agreement. This Agreement does not create any right that may be enforced by a third party and neither party shall have the right, power, or authority under this Agreement to create any duty or obligation on behalf of the other party.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with us and limits the manner in which you can seek relief from us.
Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Site and the Services, to any products sold or distributed through the Site, or to any aspect of your relationship with us, will be resolved by binding arbitration, rather than in court, except that (i) 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 we 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). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Last Updated Date of this Agreement or any prior version of this Agreement.
IF YOU AGREE TO ARBITRATION WITH HIYA HEALTH PRODUCTS LLC, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST US ALLEGING CLASS, COLLECTIVE, AND / OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST US 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.
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. 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/. JAM’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 JAMSs filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, we will pay them for you. In addition, we 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, we 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.
Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority 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 us. 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 or 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.
Waive of Jury Trial. YOU AND HIYA HEALTH PRODUCTS LLC, 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 we are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in 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.
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 CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in the Federal or state courts of Los Angeles, California.
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 email@example.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your username (if any), 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.
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.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with us.
Notwithstanding any provision in this Agreement to the contrary, we agree that if we make 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 us.