Welcome, and thank you for your interest in Pivot™. Pivot was developed and is offered for use by Pivot Health Technologies Inc. (“Pivot,” “we,” “our” or “us”). The Pivot™ website(s) at www.pivot.co, networks, software, hardware devices, mobile application(s), coaching and other services provided by us are collectively referred to as the “Service” or “Services” throughout this document. Pivot is a digital health and technology company applying technology, clinical expertise, and behavioral science to help deliver wellness solutions. These Terms of Service and End User License Agreement are a legally binding contract between you and Pivot regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
By choosing “I Accept” you agree that you have read and understood, and agree to be bound, by the following terms and conditions, including Pivot’s privacy policy (together, the “Terms”). If you are not eligible, or do not agree to the terms, then you do not have our permission to use the service.
THE SERVICE IS NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, AND WHILE THE SERVICE PROVIDES INFORMATION AND MAY HELP IMPROVE YOUR HEALTH, WE CAN NOT AND DO NOT DIAGNOSE YOUR HEALTH CONDITIONS. ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTHCARE PROVIDER FOR PERSONAL MEDICAL ATTENTION AND ADVICE; DO NOT USE THE SERVICES AS A SUBSTITUTE FOR CONSULTING WITH YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER. THE SERVICE IS NOT DESIGNED FOR USE IN MEDICAL EMERGENCIES.
YOU HEREBY CONSENT TO OUR COLLECTION, USE AND DISCLOSURE OF YOUR PERSONAL INFORMATION, INCLUDING BEHAVIOR INFORMATION AND OTHER PROTECTED HEALTH INFORMATION (“PHI”) AS DEFINED UNDER THE HEALTH INFORMATION AND PRIVACY PROTECTION ACT (“HIPAA”), IN ACCORDANCE WITH OUR PRIVACY POLICY, AVAILABLE AT pivot.co/privacy. IF YOU DO NOT CONSENT TO THE COLLECTION, USE, AND/OR DISCLOSURE OF THIS INFORMATION IN ACCORDANCE WITH OUR PRIVACY POLICY, YOU MAY NOT ACCESS OR USE THE SERVICE.
1 Agreement Overview. As provided in greater detail in these Terms (and without limiting the express language of the Terms below), you agree and acknowledge that these Terms include the following provisions:
1.1 ARBITRATION – Disputes arising hereunder will be resolved by binding arbitration, and BY USING THE SERVICE, YOU AND PIVOT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (As set forth in Section 18);
1.2 LICENSE – other than the breath sensor hardware or other device hardware you may purchase or have provided to you by a health plan or employer sponsor on your behalf, the Service is licensed to you on a subscription basis set forth by the terms agreed with you or your health plan or employer sponsor. The Service is not sold to you, and you may use the Service only as set forth in these Terms. (As set forth in Section 6);
1.3 PRIVACY – you consent to the collection and use of certain personally identifiable information in accordance with Pivot’s Privacy Policy. (As set forth in Section 19.2);
1.4 NO WARRANTY – the Service is provided “AS IS” and “AS AVAILABLE” without warranties of any kind, and Pivot’s liability to you is limited. (As set forth in Sections 16 and 17);
2 Our Services. As part of certain Service Offerings, we offer programs (such as web-based coaching services, mobile applications, community interactions and breath sensors) to help eligible individuals understand their behaviors and wellness choices. Our Services may include, without limitation, the following:
2.1 Registration capabilities with respect to the Service;
2.2 The provision of a proprietary carbon monoxide breath sensor to you;
2.3 The provision of mobile application(s) to record and illustrate your behaviors;
2.4 The delivery of coaching, education and recognition services to build your awareness and competencies and recognize and/or reward milestone achievements;
2.5 The provision of web-based portal(s) to deliver the Service to you;
2.6 Access to your behavior information gathered through our Service to share with health coach(es) under whose care you are or will be;
2.7 Access to your behavior information gathered through our Service to build a social community in support of your wellness goals;
2.8 Customer services to address questions and concerns about the Services described above.
3 Eligibility. You must be at least 18 years old to use the Services. By agreeing to these Terms, you represent and warrant to us that: (i) you are at least 18 years old; (ii) you have not previously been suspended or removed from the Service (unless a buying entity acting on your behalf such as a health plan sponsor has authorized your use of the Service after you previously were suspended or removed from use); and (iii) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are accepting these Terms on behalf an entity, organization, or company, you represent and warrant that you have authority to bind that entity to these Terms, and you agree to be bound by these Terms.
4 Accounts and Registration. To access some features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, mobile phone number or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. If you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at [email protected]. You shall not (a) select or use as a user ID a name of another person with the intent to impersonate that person; (b) use as a user ID a name subject to any trademark or similar rights of a person other than you without appropriate authorization; or (c) use as a user ID a name that is otherwise offensive, vulgar or obscene. We reserve the right to refuse registration of, or cancel a user ID in our sole discretion.
5 Location Based Services. Some of the features of the Service may enable Pivot to access your location in order to tailor your experience with the Service based on your location (“Location-based Services”). In order to use certain Location-based Services, you may be asked to enable certain features of your mobile phone, which enable Pivot to identify your location through a variety of means, including GPS location, IP address, cell tower location, geo-fencing technology, or detection by physical on-location Wi-Fi or Bluetooth sensors, as available. If you choose to disable any Location-based Services on your device, you may not be able to utilize certain features of the Service. By enabling Location-based Services, you agree and acknowledge that: (i) device data we collect from you is directly relevant to your use of the Service; (ii) Pivot may provide Location-based Services related to and based on your then-current location; and (iii) Pivot may use any such information collected in connection with provision of the Service.
6 General Payment Terms for Certain Situations/Features. The terms of this Section 6 will apply to any payment you make to Pivot related to the Service. In cases where the Service were made available to you through a buying agent such as a health plan sponsor, your employer, an insurer or a wellness company, these terms will apply with respect to any costs related to the Services you are required to share to be eligible to receive them. These terms will also apply to certain premium features of the Service which may become available to you that require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged.
6.1 Pricing. Pivot reserves the right to determine pricing for the Service. Pivot will make pricing that you are responsible for paying known to you through at least one of the communication channels available including but not limited to direct email, website, app notifications, etc. Pivot may change the fees for any feature of the Service, including additional fees or charges; provided that Pivot gives you advance notice of changes before they apply. Pivot, at its sole discretion, may make promotional offers with different features and different pricing to any of our customers. These promotional offers, unless made to you, will have no bearing whatsoever on your offer or contract.
6.2 Authorization. You authorize Pivot or a third party payment processor to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Pivot, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, Pivot or a third-party payment processor may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. If we use a third-party payment processor, such as Stripe, their use of your personal information is subject to their applicable terms of service and privacy policy. For Stripe, those terms are available at https://stripe.com/gb/legal and https://stripe.com/gb/privacy.
6.3 Subscription Service. The Service may include certain components for which you must make recurring payments (“Subscription Service”). If you activate or update Subscription Service through the Service, you authorize Pivot to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you first purchase the Subscription Service and each monthly recurrence thereof. “Subscription Fee” is the price made known to you as described in section 6.1. Your account will be charged automatically on the Subscription Billing Date for all fees which apply for the next subscription period. The subscription will continue unless and until you cancel your subscription or we terminate it. You must cancel your subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your account. We will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your account information). You may cancel your Subscription Service by contacting us at: [[email protected]] if we are your billing entity. If we are not your billing entity, you should contact your employer, health plan provider, or other billing entity, whichever is applicable, to cancel your Subscription Service.
6.4 No Refunds. All charged by Pivot for and related to the Services are charged in U.S. dollars and are non-refundable and non-recoupable.
6.5 Delinquent Accounts. Pivot reserves the right to suspend or terminate Service for any accounts for which any amount is due but unpaid. In addition to the amount due for the Service, such accounts will be charged with fees or charges that are incidental to any chargebacks or collection of any such unpaid amounts including collection fees.
7 Licenses
7.1 Limited License. Subject to your ongoing compliance with the Terms, Pivot grants you: (i) a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use the Pivot breath sensor, install the mobile application(s) associated with the Service on your personal mobile device, to use such mobile applications so installed, and to use any software embedded in Pivot devices, in each case solely in object code format, and solely for your personal, non-commercial use for lawful purposes, on devices that you own or control, and (ii) permission to access and use the Service for your personal use.
7.2 License Restrictions. Except and solely to the extent permitted by applicable law notwithstanding these restrictions, you may not: (i) reproduce, distribute, publicly display, or publicly perform the Service or any part thereof; (ii) reverse engineer, decompile, or make modifications to the Service or any part thereof; or (iii) interfere with or circumvent any feature of the Service or any part thereof, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
7.3 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Pivot an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
8 Ownership; Proprietary Rights. The Service is owned and operated by Pivot. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Pivot are protected by intellectual property and other laws. All Materials included in the Service are the property of Pivot or our third-party licensors. Except as expressly authorized by Pivot, you may not make use of the Materials. Pivot reserves all rights to the Materials not granted expressly in these Terms.
9 Third-Party Terms
9.1 Carrier Service. Your access to use the Service may be subject to separate third party terms of service and fees, including your mobile network operator’s terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility.
9.2 Third Party Services and Linked Websites. Pivot may provide tools through the Service that enable you to export information, including User Content, to third party services, such as those offered by your employer or health plan, including through features that allow you to link your account on Pivot with an account on the third party service, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any aspect of such third party services, including their security or any such third party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content. The inclusion of any such links to third-party websites or services does not imply endorsement by Pivot or any association with the third party website’s operators.
You agree that Pivot will have no responsibility or liability for any information, software, materials or services provided by any third parties, including without limitation any third party service providers linked through the service, and you agree to assume all responsibility and liability for any damages, loss, or other harm, whether to you or to third parties, resulting from or alleged to have resulted from your use of third party materials and third party websites.
9.3 Open Source Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute such components (“Open Source Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining such Open Source Components under the applicable third-party licenses or to limit your use of such Open Source Components thereunder.
10 User Content
10.1 User Content Generally. Certain features of the Service may permit users to voluntarily upload certain content to the Service, including messages, photos, video, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
10.2 Limited License Grant to Pivot. By voluntarily posting or publishing such User Content, you grant Pivot a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed consistent with our Privacy Policy.
10.3 Limited License Grant to Other Users. By posting or sharing User Content with other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
10.4 User Content Representations and Warranties. We expressly disclaim any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
A) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Pivot and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by Pivot, the Service, and these Terms; and
B) your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Pivot to violate any law or regulation.
10.5 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Pivot may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Pivot with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Pivot does not permit copyright-infringing activities on the Service.
10.6 Monitoring Content. Pivot does not control and does not have any obligation to monitor: (i) submitted content; (ii) any content made available by third parties; or (iii) the use of the Service by its users. You acknowledge and agree that Pivot reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time, Pivot chooses, in its sole discretion, to monitor the content, Pivot nonetheless assumes no responsibility or liability for the content or any loss or damage of any kind incurred as a result of the use of such content. During monitoring, information may be examined, recorded, copied and used in accordance with our Privacy Policy.
11 Prohibited Conduct. By using the service you agree not to:
a) use the Service for any illegal purpose or in violation of any local, state, national, or international law;
b) violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
c) post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
d) interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
e) interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service or using the Service to send unauthorized or unsolicited advertising or messages; (c) collecting personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
f) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
g) conduct commercial activities or sales such as contests, sweepstakes, bartering, advertising, or pyramid schemes on or using the Service;
h) sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 8) or any right or ability to view, access, or use any Materials; or
i) attempt to do any of the acts described in this Section 11 or assist or permit any person in engaging in any of the acts described in this Section 11.
12 Digital Millennium Copyright Act
12.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
Pivot Health Technologies Inc.
ATTN: Legal Department (Copyright Notification)
1010 Commercial St. Suite C
San Carlos, CA 94070
Email: [email protected]
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must comply with all required elements of notification as described in 17 U.S.C. §512.
12.2 Repeat Infringers. Pivot will promptly terminate the accounts of users that are determined by Pivot to be repeat infringers.
13 Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 12, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
14 Term, Termination, and Modification of the Service
14.1 Term. These Terms are effective beginning when you accept the Terms or download, install, access or use the Service, and ending when terminated as set forth in Section 14.2.
14.2 Termination. If you violate any provision of these Terms, your account and these Terms automatically terminate. In addition, Pivot may, at its sole discretion, terminate these Terms, your account on the Service or suspend or terminate your access to the Service at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at [email protected].
14.3 Effect of Termination. Upon termination of these Terms: (i) your license rights will terminate and you must immediately cease all use of the Service; (ii) you will no longer have access to your account; (iii) you must remit to Pivot any unpaid amounts due prior to termination; and (iv) upon termination of these Terms, all payment obligations accrued prior to termination and Sections 7.3, 8, 14.3, 15, 16, 17, 18 and 19 will survive.
14.4 Modification of the Service. Pivot reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. Pivot devices have an expiration date. If you attempt to use your Pivot device after such expiration date, the Service may treat the expired device as disabled. If you are not an active subscriber of the Services, Pivot may delete your account with or without notice to you.
15 Indemnity. You are responsible for your use of the Service, and you will defend and indemnify Pivot and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Pivot Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys' fees and costs (“Claims”) brought by a third party arising out of or connected with: (a) your use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those Claims.
16 Disclaimers; No Warranties
Although Pivot hopes that you will find its services helpful in your efforts for healthy changes, Pivot cannot and does not guarantee (a) that you will achieve your goals by using the Service, or (b) any other performance or outcome of the Service or your use thereof.
The Service does not include the provision of medical care by Pivot. Rather, the Service enables registered users to access web-based health coaching tools and resources, including a health coach who may provide you with limited web-, telephone-, sms-, or email-based support. Pivot's health coaches are not licensed physicians or licensed healthcare providers. Pivot does not employ or contract with physicians to provide medical care to you. Our Services are not intended to be, and do not constitute, a substitute for professional medical advice, diagnosis, or treatment and are offered for informational purposes only. Pivot does not represent or warrant that the Services or any particular drug or treatment is safe, appropriate, or effective for you.
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. PIVOT DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. PIVOT DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF OR THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
No advice or information, whether oral or written, obtained by you from the Service or Pivot entities or any materials or content available through the Service will create any warranty regarding any of the Pivot entities or the Service that is not expressly stated in these terms. We are not responsible for any damage that may result from your use of or access to the Service and your dealing with any other Service user. You understand and agree that you use the Service, and access, download, or otherwise obtain materials or content through the Service and any associated sites or services, at your own discretion and risk, and that we are not responsible for any damage to your property (including your computer system or mobile device(s) used in connection with the Service), or the loss of data that results from the use of the Service or the download or use of the materials or content.
Notwithstanding the foregoing, Pivot does not disclaim any warranty or other right that Pivot is prohibited from disclaiming under applicable law.
17 Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE PIVOT ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY PIVOT ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 18.4(iii) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE PIVOT ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO PIVOT FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM; OR (B) $100.
Each provision of these terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended to and does allocate the risks between the parties under these terms. This allocation is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of these terms. The limitations in this Section 17 will apply even if any limited remedy fails of its essential purpose.
18 Dispute Resolution and Arbitration
18.1 Generally. In the interest of resolving disputes between you and Pivot in the most expedient and cost effective manner, you and Pivot agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND PIVOT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
18.12Exceptions. Despite the provisions of Section 18.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
18.3 Arbitrator. Any arbitration between you and Pivot will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Pivot. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
18.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Pivot's address for Notice is: Pivot Health Technologies Inc., 1010 Commercial St. Suite C. San Carlos, CA 94070. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Pivot may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Pivot must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Pivot will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any, subject to the limitations of liability contained herein; (ii) the last written settlement amount offered by Pivot in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
18.5 Fees. If you commence arbitration in accordance with these Terms, Pivot will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Mateo County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Pivot for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
18.6 No Class Actions. YOU AND PIVOT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Pivot agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
18.7 Modifications to this Arbitration Provision. If Pivot makes any future change to this arbitration provision, other than a change to Pivot's address for Notice, you may reject the change by sending us written notice within 30 days of the change to Pivot's address for Notice, in which case your account with Pivot will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
18.8 Enforceability. If Section 18.6 is found to be unenforceable or if the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 19.1 will govern any action arising out of or related to these Terms.
19 General Terms. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Pivot regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word "including" means "including but not limited to". If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
19.1 Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Pivot submit to the personal and exclusive jurisdiction of the state courts and federal courts serving San Mateo County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations. If you access the Services from other locations, you do so at your own initiative and are responsible for compliance with all laws applicable to such locations.
19.2 Privacy Policy. Please read the Pivot Privacy Policy. carefully for information relating to our collection, use, storage, disclosure of your personal information. The Pivot Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
19.3 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
19.4 Consent to Communications. By using the Service, you consent to receiving certain electronic or other communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. By providing your mobile number to us, you consent to receiving voice calls and text messages at that number for account verification, notifications, and other purposes related to the Service. While we do not charge a fee for calls or text messages, your carrier may charge standard messaging, data, and other fees, and you are responsible for those charges. We may send and receive telephone calls and text messages through cellular telephone operators or other networks, and the level of reliability may vary. We are not responsible for the timeliness or final delivery of text messages, as that is outside our control and is the responsibility of the cellular telephone operator or other networks. Notwithstanding the foregoing, we will use your mobile number in accordance with our Privacy Policy.
When you contact us by email or text message, we have no way of protecting the information contained in such messages, since email and text messaging and the communication lines such communications travel over are not under our control and may not possess the same security features that are built into our Services. By sending any information to us via email, ground mail, or text message, or by agreeing to receive electronic communications from us through email or text message, you acknowledge and accept any and all risk and possible damage arising from disclosure of such information in the course of such transmission. You acknowledge that you are responsible for the data security of your systems used to access the Services and for the transmission and receipt of information using your systems.
19.5 Contact Information. The Services are offered by Pivot Health Technologies Inc., located at 1010 Commercial St. Suite C. San Carlos, CA 94070. You may contact us by sending correspondence to that address or by emailing us at [email protected].
19.6 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
20 Notice Regarding Apple. This Section 20 only applies to the extent you are using our mobile application(s) on an iOS device. You acknowledge that these Terms are between you and Pivot only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
