Last updated 10/5/2023
ACCEPTANCE – THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE SERVICES DURING PATHIZE’S BETA LAUNCH. BY COMPLETING THE REGISTRATION PROCESS, BROWSING THE WEBSITE, DOWNLOADING OR USING THE APP, OR OTHERWISE ACCESSING OR USING ANY OF THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE AGREEMENT AND (2) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE LEGAL ENTITY IDENTIFIED DURING THE ACCOUNT REGISTRATION PROCESS AND TO BIND THAT LEGAL ENTITY TO THE AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU MAY NOT ACCESS OR USE ANY OF THE SERVICES.
COMMUNICATIONS – PLEASE BE AWARE THAT SECTION 15.4 OF THE AGREEMENT BELOW CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING, VIA TEXT, E-MAIL, AND PUSH NOTIFICATIONS, SUBJECT TO OUR OBLIGATIONS PURSUANT TO APPLICABLE PRIVACY LAWS.
AUTOMATIC RENEWALS – IF YOU SUBSCRIBE TO THE PATHIZE HEALTH SUBSCRIPTION, THAT TERM WILL CONTINUE FOR ONE (1) MONTH (THE “INITIAL TERM”), AND THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF ONE (1) MONTH (“RENEWAL TERM”) OF THE SAME DURATION AS THE INITIAL TERM AT COMPANY’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 8.2(a)(AUTOMATIC RENEWAL) BELOW.
U.S. RESIDENTS ONLY – IMPORTANT INFORMATION ABOUT ARBITRATION, CONSENTS AND UPDATES TO THE AGREEMENT – PLEASE BE AWARE THAT SECTION 14 OF THESE TERMS CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND PATHIZE HAVE AGAINST EACH OTHER WILL BE RESOLVED, INCLUDING WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THE AGREEMENT. SECTION 14 CONTAINS, AMONG OTHER THINGS, AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND PATHIZE BE RESOLVED BY BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN THIRTY (30) DAYS OF THE EFFECTIVE DATE OF THE AGREEMENT: (I) YOU AND PATHIZE WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST THE OTHER PARTY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU AND PATHIZE WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (II) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
PERSONAL USE ONLY – THE SERVICES ARE INTENDED FOR PERSONAL USE ONLY AND ARE NOT INTENDED FOR USE IN A BUSINESS OR COMMERCIAL CAPACITY AND SUCH USE IS EXPRESSLY PROHIBITED. BY USING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE DOING SO IN YOUR CAPACITY AS A CONSUMER. PATHIZE ACCEPTS NO LIABILITY FOR BUSINESS OR COMMERCIAL LOSSES RESULTING FROM YOUR USE OF THE SERVICES.
CHANGES TO TERMS – PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY PATHIZE IN ITS SOLE DISCRETION AT ANY TIME. WHEN CHANGES ARE MADE, PATHIZE WILL MAKE A COPY OF THE UPDATED AGREEMENT AVAILABLE ON THE SERVICES AND UPDATE THE “LAST UPDATED DATE” AT THE TOP OF THESE TERMS. IF WE MAKE ANY MATERIAL CHANGES TO THE AGREEMENT OR WHERE OTHERWISE REQUIRED BY APPLICABLE LAW, WE WILL PROVIDE NOTICE OF SUCH MATERIAL CHANGES ON THE SERVICES AND ATTEMPT TO NOTIFY YOU BY SENDING AN E-MAIL TO THE E-MAIL ADDRESS PROVIDED IN YOUR ACCOUNT REGISTRATION. ANY CHANGES TO THE AGREEMENT WILL BE EFFECTIVE IMMEDIATELY FOR NEW USERS OF THE SERVICES AND WILL BE EFFECTIVE FOR EXISTING REGISTERED USERS UPON THE EARLIER OF (A) THIRTY (30) DAYS AFTER THE “LAST UPDATED DATE” AT THE TOP OF THESE TERMS, OR (B) YOUR CONSENT TO AND ACCEPTANCE OF THE UPDATED AGREEMENT IF PATHIZE PROVIDES A MECHANISM FOR YOUR IMMEDIATE ACCEPTANCE IN A SPECIFIED MANNER (SUCH AS A CLICK-THROUGH ACCEPTANCE), WHICH PATHIZE MAY REQUIRE BEFORE FURTHER USE OF THE SERVICES IS PERMITTED. IF YOU DO NOT AGREE TO THE UPDATED AGREEMENT, YOU MUST STOP USING ALL SERVICES UPON THE EFFECTIVE DATE OF THE UPDATED AGREEMENT. OTHERWISE, YOUR CONTINUED USE OF ANY OF THE SERVICES AFTER THE EFFECTIVE DATE OF THE UPDATED AGREEMENT CONSTITUTES YOUR ACCEPTANCE OF THE UPDATED AGREEMENT. PLEASE REGULARLY CHECK THE SERVICES TO VIEW THE THEN-CURRENT AGREEMENT. YOU AGREE THAT PATHIZE’S CONTINUED PROVISION OF THE SERVICES IS ADEQUATE CONSIDERATION FOR THE CHANGES IN THE UPDATED AGREEMENT.
1. USE OF THE SERVICES. The Service, and the information and content available on them, are protected by applicable intellectual property laws. Pathize, its suppliers and service providers reserve all rights not granted in the Agreement. Unless subject to a separate license between you and Pathize, your right to use any and all Services is subject to the Agreement.
1.1 Description of Services. The Services are designed to enable users to track long-term illnesses. Through the features and functionality of the Services, you may manually input, or link compatible mobile or web applications (such as Apple Health) to import, health information (such as heart rate and step count) and may manually input symptoms and other markers so that you may track and view insights, analytics, graphics, content, and other information generated through the Services (“Analytics”) over time.
1.2 Limitations of Services. PATHIZE’S SERVICES, INCLUDING PATHIZE’S ANALYTICS, ARE NOT INTENDED TO PROVIDE MEDICAL ADVICE TO USERS AND ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. YOU ACKNOWLEDGE AND AGREE THAT PATHIZE DOES NOT PROVIDE ANY MEDICAL OR OTHER CLINICAL ADVICE OF ANY KIND OR MAKE ANY MEDICAL OR OTHER CLINICAL DECISIONS. YOU ACKNOWLEDGE AND AGREE THAT PATHIZE DOES NOT ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR THE ACCURACY, EFFICACY, VERACITY, COMPLETENESS, APPROPRIATENESS, OR SAFETY OF ANY ANALYTICS RECEIVED OR PROVIDED OR MADE AVAILABLE THROUGH THE SERVICES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. PATHIZE DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC TESTS, CLINICIANS, PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION OR RESOURCES MADE AVAILABLE THROUGH THE SERVICES. PATHIZE DOES NOT ITSELF PROVIDE SERVICES REQUIRING PROFESSIONAL LICENSURE OR QUALIFICATIONS (E.G., PHYSICIAN OR OTHER MEDICAL PROFESSIONAL SERVICES) AND THE DATA PROVIDED BY THE SERVICES DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL OR OTHER CLINICAL ADVICE OR OPINION.
1.3 No Physician-Patient Relationship with Pathize. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A HEALTH CONDITION AND BEFORE STOPPING, STARTING, OR MODIFYING ANY TREATMENT. NEVER DISREGARD PROFESSIONAL MEDICAL OR CLINICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THE SERVICES. THE SERVICES ARE NOT INTENDED FOR EMERGENCY USE. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911 OR SEEK IMMEDIATE OR OTHER APPROPRIATE EMERGENCY ATTENTION. The Analytics and other information generated by us or the Services should not be interpreted as a substitute for a healthcare professional consultation, evaluation, or treatment, and the information made available on or through the Services should not be relied upon when making medical or other clinical decisions or to diagnose or treat a health condition. Nothing contained in the Services should be construed as such advice or diagnosis. YOUR USE OF THE SERVICES DOES NOT CREATE A PATIENT OR LICENSED MEDICAL PROFESSIONAL RELATIONSHIP, PHYSICIAN-PATIENT PRIVILEGE, OR DOCTOR-PATIENT CONFIDENTIALITY BETWEEN YOU AND PATHIZE. You represent to us (which representation shall be deemed to be made each time you use the Services), that you are not using the Services or participating in any of the activities offered by the Services for purposes of seeking medical attention. You further agree that, before using the Services, you shall consult your physician. If any information you receive or obtain from using the Services is inconsistent with the medical advice from your physician, you agree to follow the advice of your physician.
1.4 Application License. Subject to your compliance with the Agreement, Pathize grants you a personal, limited non-exclusive, non-transferable, non-sub-licensable, revocable license to download, install, and use a copy of the App on a single mobile device that you own or control and to run such copy of the App solely for your personal, non-commercial use. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any App accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the App on a shared basis within your designated family group.
(a) Accessing and Downloading the Application from the Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(i) You acknowledge and agree that (i) this Agreement is concluded between you and Pathize only, and not Apple, and (ii) Pathize, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(ii) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(iii) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Pathize and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Pathize.
(iv) You and Pathize acknowledge that, as between Pathize and Apple, Apple is not responsible for addressing any claims you have or of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(a) You and Pathize acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Pathize and Apple, Pathize, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
(b) You and Pathize acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(c) Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
1.6 Updates. You understand that the Services are evolving. You acknowledge and agree that Pathize may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services.
1.7 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions, to the fullest extent permitted by applicable law: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any of the Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other parts of the Services (including images, text, page layout, or form); (c) you shall not use any metatags or other “hidden text” using Pathize’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile, or reverse engineer any part of the Services 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 Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website 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 Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Agreement.
1.8 Pathize Communications. By entering into the Agreement or using the Services, you agree to receive communications from us, including via emails, text messages, and push notifications through the Services, subject always to our obligations pursuant to applicable privacy laws. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from Pathize may include but are not limited to: operational communications concerning your Account or the use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning Pathize and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. IF YOU WISH TO OPT OUT OF PROMOTIONAL CALLS OR TEXTS, YOU MAY TEXT “END” IN REPLY TO ANY SUCH PROMOTIONAL MESSAGE FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE SERVICES. IF YOU WISH TO OPT OUT OF ALL TEXTS FROM US (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS), YOU CAN TEXT THE WORD “STOPALL” IN REPLY TO ANY SUCH TEXT, FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE SERVICES AND ABILITY TO ACCESS CERTAIN FEATURES AND FUNCTIONALITY.
2.1 Registering Your Account. In order to access certain features of the Services you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account with Pathize through the Services (“Account”). To become a Registered User, you must be at least sixteen (16) years of age to register. If you are between the ages of sixteen (16) and eighteen (18), you must use the Services under the supervision of a parent or legal guardian, and your parent or legal guardian agrees to the terms of this Agreement on your behalf and takes full responsibility for your compliance with this Agreement. If you are under eighteen (18) (or under the age of majority where you live), you understand that you cannot later void the Agreement with Pathize as a minor without losing access to your Account, and your parent or legal guardian is responsible for your actions and any obligations you have incurred while enjoying the benefits of access to the features and functions of the Services.
2.2 Registration Data. In registering an Account, you agree to (a) provide true, accurate, current, and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. You represent that you are not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by any other persons and you will accept full responsibility for any such unauthorized use. You may not share your Account login or password with anyone, and you agree to (y) notify Pathize immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current, or incomplete, or Pathize has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current, or incomplete, Pathize has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree not to create an Account or use the Services if you have been previously removed by Pathize, or if you have been previously banned from any of the Services.
2.3 Your Account. Notwithstanding anything to the contrary herein, and subject to your rights pursuant to applicable privacy laws, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Pathize.
2.4 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Services. You are solely responsible for any fees, including Internet connection, that you incur when accessing the Services.
- RESPONSIBILITY FOR DATA.
3.1 Types of Data. You acknowledge that all content, including data, information, and text (collectively, “Data”), is the sole responsibility of the party from whom such Data originated. This means that you, and not Pathize, are entirely responsible for all Data that you input, transmit, or otherwise make available through the Services (“Your Data”), and that you and other Registered Users of the Services, and not Pathize, are similarly responsible for all Data that you and they make available through the Services (“User Data”). For the avoidance of doubt, any Data that is imported through your wearable device constitutes Your Data.
3.2 No Obligation to Pre-Screen Data. You acknowledge that Pathize has no obligation to pre-screen User Data, including pre-screening User Data for inaccuracies, although Pathize reserves the right in its sole discretion to pre-screen, refuse, or remove any User Data. By entering into the Agreement, you hereby provide your irrevocable consent to Pathize’s monitoring of Your Data, subject always to our obligations pursuant to applicable privacy laws. In the event that Pathize pre-screens, refuses, or removes any of Your Data, you acknowledge that Pathize will do so for Pathize’s benefit, not yours. Without limiting the foregoing, Pathize shall have the right to remove any of Your Data that violates the Agreement or is otherwise objectionable.
3.3 Storage. Unless expressly agreed to by Pathize in writing elsewhere, Pathize has no obligation to store any of Your Data. Pathize has no responsibility or liability for the deletion or accuracy of any User Data, including Your Data; the failure to store, transmit, or receive transmission of any User Data; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services, in each case subject always to our obligations pursuant to applicable privacy laws. Certain Services may enable you to specify the level at which such Services restrict access to Your Data. You are solely responsible for choosing the appropriate level of access to Your Data. You agree that Pathize retains the right to create reasonable limits on Pathize’s use and storage of User Data, including Your Data, such as limits on file size, storage space, processing capacity, and similar limits as determined by Pathize in its sole discretion.
4.1 Services. Except with respect to Your Data and other User Data, you agree that Pathize and its suppliers own all rights, title, and interest in the Services, including the Analytics. You agree not to remove, alter, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services.
4.2 Trademarks. Pathize’s name and all related stylizations, graphics, logos, service marks and trade names used on or in connection with any Services are the trademarks of Pathize and may not be used without permission in connection with your, or any third-party, products or services. Third party trademarks, service marks, and trade names that may appear on or in the Services are the property of their respective owners.
4.3 Your Data. Pathize does not claim ownership of Your Data. However, when you submit Your Data on or in any Services, you represent that you own or have all necessary rights to do so.
4.4 License to Your Data. Subject to any applicable Account settings that you select and to your rights pursuant to applicable privacy laws, you hereby grant (and you represent and warrant that you have the right to grant) Pathize a fully paid, royalty-free, worldwide, non-exclusive right (including any moral rights) and license to (i) use, reproduce, modify, adapt, display, store, and otherwise process Your Data (in whole or in part) for the purposes of operating and providing the Services to you and other users, subject to any features or settings selected by you, and (ii) aggregate and de-identify Your Data for purposes of creating Analytics and otherwise providing and improving the Services. To the extent you make Your Data available to third parties via privacy settings, tools, or other functionalities of the Services, you hereby grant to such third parties a worldwide, non-exclusive, royalty-free, fully paid-up right and license to access and use the Your Data in connection with their use of the Services. You agree that you, not Pathize, are responsible for all of Your Data, including with respect to creating any backup copies of Your Data at your sole cost and expense. You acknowledge and agree that Pathize has the right to delete Your Data upon termination of this Agreement.
4.5 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Pathize through email, the App, the Website and/or suggestion pages (“Feedback”) is at your own risk and that Pathize has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Pathize a fully paid, royalty-free, perpetual, irrevocable, worldwide, and non-exclusive right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation, improvement, and maintenance of the Services and/or Pathize’s business.
- USER CONDUCT. As a condition of use, you agree not to use any of the Services for any purpose that is prohibited by this Agreement or by applicable law. To the fullest extent permitted by applicable law, you shall not (and shall not permit any third party to) either: (a) take any action or (b) make available any Data on or through the Services that: (i) infringes, misappropriates, or otherwise violates any intellectual property right, right of publicity, right of privacy or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) impersonates any person or entity; (iv) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by the Agreement; or (v) attempts to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host, or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services.
- INDEMNIFICATION. To the fullest extent permitted by applicable law, you agree to indemnify and hold Pathize, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Pathize Party” and collectively, the “Pathize Parties”) harmless from any losses, costs, liabilities, and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Data; (b) your use of any Service in violation of the Agreement; (c) your violation of any rights of another party, including any Registered Users; or (d) your violation of any applicable laws, rules or regulations. Pathize reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to fully cooperate with Pathize in asserting any available defenses. This provision does not require you to indemnify any of the Pathize Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services. Some jurisdictions do not allow such indemnification, so the above obligations may not apply to you.
- INTERACTIONS WITH OTHER USERS.
7.1 User Responsibility. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact; provided, however, that Pathize reserves the right, but has no obligation, to intercede in such disputes. You agree that Pathize will not be responsible for any liability incurred as the result of such interactions. YOU UNDERSTAND THAT PATHIZE DOES NOT CURRENTLY CONDUCT CRIMINAL BACKGROUND CHECKS ON ITS USERS. PATHIZE ALSO DOES NOT INQUIRE INTO THE BACKGROUNDS OF ITS REGISTERED USERS OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS REGISTERED USERS. PATHIZE MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF REGISTERED USERS.
7.2 Content Provided by Other Users. The Services may contain content, such as other User Data, provided by other Registered Users. Pathize is not responsible for and does not control such content. Pathize has no obligation to review or monitor, and does not approve, endorse, or make any representations or warranties with respect to such content. You use all content and interact with other Registered Users at your own risk.
- FEES AND PURCHASE TERMS
8.1 Fees for Services. You shall pay all fees or charges (“Fees”) to your Account in accordance with the fees, charges and billing terms in effect at the time a Fee is due and payable. The current monthly Fee for each Subscription (as defined below) is $14.99 per month, plus applicable Sales Taxes. By providing Pathize and/or our Third Party Service Provider with your payment information, you agree that Pathize and/or our Third Party Service Provider is authorized to immediately invoice your Account for all Fees due and payable to Pathize hereunder and that no additional notice or consent is required. You shall immediately notify Pathize of any change in your payment information to maintain its completeness and accuracy. Pathize reserves the right at any time to change its prices and billing methods in its sole discretion. You agree to have sufficient funds or credit available upon placement of any order to ensure that the purchase price is collectible by us. Your failure to provide accurate payment information to Pathize and/or our Third Party Service Provider or our inability to collect payment constitutes your material breach of this Agreement. Except as set forth in this Agreement, all Fees for the Service are non-refundable.
8.2 Subscriptions. If you purchase access to the Pathize Health subscription, which enables access to certain features and functionality of the Services on a monthly basis (a “Subscription”), the Fee for such Subscription (“Service Subscription Fee”) will be billed at the start of the Subscription (“Subscription Service Commencement Date”) and at regular monthly intervals calculated from the date of purchase. Pathize reserves the right to change the timing of our billing upon written notice to you. Pathize reserves the right to change the Subscription pricing at any time. If changes to the Subscription price occur that impact your Subscription, Pathize will use commercially reasonable efforts to notify you, such as by sending an email to the email address associated with your Account. If you do not agree with such changes, you may cancel your Subscription as set forth in Section 8.2(a)(i) (Cancelling Subscriptions Purchased via Pathize).
(a) Automatic Renewal. If you elect to purchase a Subscription, your Subscription will continue and automatically renew at Pathize’s then-current price for such Subscription until terminated in accordance with this Agreement. Your subscription will renew on a monthly basis. By subscribing, you authorize Pathize to charge the payment method designated in your Account now, and again at the beginning of any subsequent Subscription period. Upon renewal of your Subscription, if Pathize does not receive payment, (i) you shall pay all amounts due on your Account upon demand and/or (ii) you agree that Pathize may either terminate or suspend your Subscription and continue to attempt to charge your designated payment method until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new Subscription commitment period will begin as of the day payment was received).
(i) Cancelling Subscriptions Purchased via Pathize. If you purchased your Subscription directly from Pathize, you may cancel your Subscription by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page. If you do not wish your Account to renew automatically, or if you want to change or terminate your Subscription, you must log in and go to the “Change/Cancel Membership” page on your “Account Settings” page.
(ii) Effect of Cancellation. If you cancel your Subscription, you may use your Subscription until the end of your then-current Subscription term; your Subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the Service Subscription Fee paid for the then-current Subscription period.
(b) Upgrades and Downgrades. If we offer different Subscription tiers and you choose to upgrade your Subscription in the middle of a Subscription period, such upgrade will take effect immediately and any incremental fees associated with such upgrade will be charged in accordance with this Agreement. In any future Renewal Term, the fees will reflect any such upgrades. If we offer different Subscription tiers and you choose to downgrade a Subscription, the downgrade will take effect as of the first day of the next Renewal Term. Downgrading a Subscription may cause loss of content, features, or capacity of the Services as available, and Pathize does not accept any liability for such loss.
8.3 Free Trials and Promotional Access. Any free trial or other promotion that provides users access to the Service must be used within the specified time of the trial. At the end of the trial or promotional period, your use of that Service will automatically roll into a paid Subscription at our then-current Service Subscription Fees and you will be charged for such Subscription as set forth in Section 8.2 (Subscriptions) if you do not cancel prior to Subscription Service Commencement Date. If you are inadvertently charged for a Subscription and provide us with written notice of the error, Pathize will have the charges reversed.
8.4 Taxes. The Fees do not include any Sales Tax (defined below) that may be due in connection with the Service provided under this Agreement, unless required by the law applicable in your country of residence. If Pathize determines it has a legal obligation to collect Sales Tax from you in connection with this Agreement, Pathize shall collect such Sales Tax in addition to the Fees. If any services or, or payments for any services, under this Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Pathize, you shall be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you shall indemnify Pathize for any liability or expense Pathize may incur in connection with such Sales Taxes. Upon Pathize’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” means any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
- DISCLAIMER OF WARRANTIES AND CONDITIONS.
9.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PATHIZE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARISING FROM USE OF THE APP. IN PARTICULAR, AND WITHOUT LIMITATION:
(a) THE PATHIZE PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR (3) THE ANALYTICS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
(b) ANY ANALYTICS ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH ANALYTICS.
(c) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PATHIZE OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(d) FROM TIME TO TIME, PATHIZE MAY OFFER NEW BETA FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT PATHIZE’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
9.2 Not Intended for Emergency Use. PATHIZE’S GOAL IS TO PROVIDE HELPFUL AND ACCURATE INFORMATION ON THE SERVICES. HOWEVER, THE SERVICES ARE DEPENDENT UPON A NUMBER OF FACTORS THAT ARE OUTSIDE THE CONTROL OF PATHIZE. USE OF THE SERVICES SHOULD NOT REPLACE YOUR GOOD JUDGMENT AND COMMON SENSE. IF YOU BELIEVE YOU ARE EXPERIENCING A MEDICAL OR OTHER EMERGENCY, CALL 911.
9.3 Medical Disclaimer. THE CLAIMS MADE IN CONNECTION WITH THE APP OR THROUGH THE SERVICES ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE OR MEDICAL CONDITION. PATHIZE DOES NOT OFFER MEDICAL ADVICE OR DIAGNOSES OR ENGAGE IN THE PRACTICE OF MEDICINE. THE CONTENTS OF THE APP, ANALYTICS CREATED BY THE SERVICES OR OTHERWISE CONTAINED IN THE APP OR THROUGH THE SERVICES ARE FOR INFORMATIONAL PURPOSES ONLY, AND IS NOT INTENDED TO BE A SUBSTITUTE FOR YOUR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, TREATMENT, OR PUBLIC HEALTH INFORMATION.
9.4 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT PATHIZE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD PATHIZE PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
9.5 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU UNDERSTAND THAT PATHIZE DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES AND MAKES NO WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY USER CONTENT OR USER DATA AVAILABLE TO YOU. PATHIZE MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT PATHIZE DOES NOT CONDUCT BACKGROUND CHECKS ON ANY USER.
9.6 Third-Party Materials. As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Pathize to monitor such materials and that you access these materials at your own risk.
9.7 Statutory Rights. SOME JURISDICTIONS DO NOT ALLOW SOME OF THE DISCLAIMERS SET OUT IN THIS SECTION 9, SO SOME OR ALL OF THE DISCLAIMERS SET OUT ABOVE MAY NOT APPLY TO YOU. YOU MAY BENEFIT FROM ADDITIONAL RIGHTS UNDER THE MANDATORY LAW OF YOUR COUNTRY OF RESIDENCE, AND THE AGREEMENT IS NOT INTENDED TO EXCLUDE OR LIMIT SUCH ADDITIONAL RIGHTS.
- LIMITATION OF LIABILITY.
10.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PATHIZE PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT PATHIZE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (4) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A PATHIZE PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A PATHIZE PARTY’S NEGLIGENCE; (B) ANY INJURY CAUSED BY A PATHIZE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION; OR (C) ANY OTHER LIABILITY WHICH IT IS NOT LAWFUL TO EXCLUDE.
10.2 Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL PATHIZE PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) ONE HUNDRED DOLLARS ($100) AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A PATHIZE PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A PATHIZE PARTY’S NEGLIGENCE; (B) ANY INJURY CAUSED BY A PATHIZE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION; OR (C) ANY OTHER LIABILITY WHICH IT IS NOT LAWFUL TO EXCLUDE.
10.3 Data. PATHIZE ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY DATA, USER COMMUNICATIONS, OR PERSONALIZATION SETTINGS.
10.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PATHIZE AND YOU.
10.5 Mandatory Law. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES OR LOSSES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
11.1 Pathize reserves the right to (a) take any action with respect to any of Your Data that we deem necessary or appropriate in our sole discretion, including if we believe that such Data violates the Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for Pathize; (b) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or (c) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement.
11.2 If Pathize becomes aware of any possible violations by you of the Agreement, Pathize reserves the right to investigate such violations. If, as a result of the investigation, Pathize believes that criminal activity has occurred, Pathize reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Pathize is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including Your Data, in Pathize’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal processes, or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that Your Data violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property, or personal safety of Pathize, its Registered Users or the public, and all enforcement or other government officials, as Pathize in its sole discretion believes to be necessary or appropriate.
- TERM AND TERMINATION.
12.1 Term. The Agreement commences on the date when you accept them (as described in the preamble above) and will remain in full force and effect while you use the Service, unless terminated earlier in accordance with the Agreement.
12.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Agreement and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with the Agreement.
12.3 Termination for Convenience. Pathize may terminate this Agreement for convenience at any time, upon written notice to you.
12.4 Termination of Services by You. If you want to terminate the Services provided by Pathize, you may do so by (a) deleting the App from your mobile device at any time and (b) closing your Account for all of the Services that you use.
12.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Data associated with or inside your Account (or any part thereof), including Your Data. Upon termination of any Service, your right to use such Service will terminate immediately. Pathize will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Data. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
12.6 No Subsequent Registration. If your registration(s) with, or ability to access, the Services or any other Pathize community, is discontinued by Pathize due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for any fees related to those Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Pathize reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
- THIRD PARTY SERVICES.
13.2 THIRD-PARTY WEBSITES, APPLICATIONS AND ADS. The Services may contain links to third-party websites applications and advertisements for third parties (collectively, the “Third-Party Websites, Applications and Ads”). When you click on a link to Third-Party Websites, Applications and Ads, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Applications and Ads are not under the control of Pathize. Pathize is not responsible for any Third-Party Websites, Applications and Ads. Pathize provides these Third-Party Websites, Applications and Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Applications and Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites, Applications and Ads at your own risk. When you leave our Service, the Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, Applications and Ads, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
13.3 App Stores. You acknowledge and agree that the availability of the App and the Services is dependent on the third party from whom you received the App license, e.g., the Apple App Store or Google Play Store (each, an “App Store”). You acknowledge that the Agreement is between you and Pathize and not with the App Store. Pathize, not the App Store, is solely responsible the Services, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Services, including the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using the Services, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
13.4 Accessing and Downloading the App from the Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Agreement is concluded between you and Pathize only, and not Apple, and (ii) Pathize, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law. Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Pathize and Apple, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Pathize.
(d) You and Pathize acknowledge that, as between Pathize and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Pathize acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Pathize and Apple, Pathize, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
(f) You and Pathize acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
- U.S. RESIDENTS ONLY – ARBITRATION CLAUSE AND CLASS ACTION WAIVER. If you reside in the United States, please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires that you and Pathize arbitrate disputes against one another.
Dispute Resolution: PLEASE BE AWARE THAT THIS SECTION 14 CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND PATHIZE HAVE AGAINST EACH OTHER WILL BE RESOLVED. AMONG OTHER THINGS, THIS SECTION 14 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND PATHIZE BE RESOLVED BY BINDING AND FINAL ARBITRATION. THIS SECTION 14 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ THIS SECTION 14 CAREFULLY.
14.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Pathize agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services, or the Agreement, including claims and disputes that arose between us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) you and Pathize may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or Pathize 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). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of the Agreement.
14.2 Informal Dispute Resolution. There may be instances when a Dispute arises between you and Pathize. If that occurs, Pathize is committed to working with you to reach a reasonable resolution. You and Pathize agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Pathize therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you also agree to participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing. Notice to Pathize that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to email@example.com or regular mail to our offices located at 215 N Peoria St., Floor 8, Chicago, Illinois, 60607. The Notice must include: (i) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (ii) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (iii) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
14.3 Waiver of Jury Trial. YOU AND PATHIZE 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 Pathize are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
14.4 Waiver of Class and Other Non-Individualized Relief. YOU AND PATHIZE AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 14.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection 14.9 (Batch Arbitration) entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Pathize agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in Chicago, Illinois. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Pathize from participating in a class-wide settlement of claims.
14.5 Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of Notice, you and Pathize agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief 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 disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitratio n/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS rules.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (i) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (ii) a statement of the legal claims being asserted and the factual bases of those claims; (iii) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (iv) a statement certifying completion of the Informal Dispute Resolution process as described above; and (v) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (a) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (b) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (c) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and otherwise agree, or the Batch Arbitration process discussed in subsection 14.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the applicable JAMS rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration.
You and Pathize agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
14.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the JAMS roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then JAMS will appoint the arbitrator in accordance with the applicable JAMS rules, provided that if the Batch Arbitration process under subsection 14.9 (Batch Arbitration) is triggered, JAMS will appoint the arbitrator for each batch.
14.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (i) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (ii) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (iii) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (iv) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. 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 award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
14.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Pathize need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
14.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Pathize agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Pathize by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), JAMS shall (i) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (ii) appoint one arbitrator for each batch; and (iii) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise JAMS, and JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Pathize.
You and Pathize agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (a) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (b) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
14.10 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: 215 N Peoria St., Floor 8, Chicago, Illinois, 60607, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Pathize 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 the 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.
14.11 Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” 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. You further agree that any Dispute that you have with Pathize as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
14.12 Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Pathize makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to Pathize at: 215 N Peoria St., Floor 8, Chicago, Illinois, 60607, your continued access and use of the Services, including the acceptance of products and services offered on or through the Services, following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or the Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to the Agreement) remain in full force and effect. Pathize will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of the Agreement.
- GENERAL PROVISIONS.
15.1 ANY DISPUTE, CLAIM, OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT. HOWEVER, IF YOU RESIDE IN A MEMBER STATE OF THE EUROPEAN ECONOMIC AREA OR IN THE UNITED KINGDOM, YOU MAY BENEFIT FROM ADDITIONAL RIGHTS AFFORDED TO YOU BY MANDATORY PROVISIONS OF THE LAWS OF YOUR COUNTRY OF RESIDENCE, AND NOTHING IN THE AGREEMENT WILL AFFECT THE APPLICATION OR ENFORCEABILITY OF THESE ADDITIONAL RIGHTS.
15.2 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Pathize agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Chicago, Illinois. However, if you reside in a member state of the European Economic Area or in the United Kingdom, you may bring a claim to enforce such mandatory rights in a court of your country of residence.
15.3 Agreement Updates. When changes are made, Pathize will make a new copy of this Agreement as applicable, available on the Services, and we will also update the “Last Updated” date at the top of this Agreement. If we make any material changes and you have registered an Account with us, we will also send an email with an updated copy of this Agreement to you at the email address associated with your Account. Pathize may require you to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE SERVICES.
15.4 Electronic Communications. The communications between you and Pathize may take place via electronic means, whether you visit the Services or send Pathize e-mails, or whether Pathize posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Pathize in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Pathize provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
15.5 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Pathize’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
15.6 Force Majeure. Pathize 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, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor, or materials.
15.7 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
15.8 Notice. Where Pathize requires that you provide an e-mail address, you are responsible for providing Pathize with your most current e-mail address. In the event that the last e-mail address you provided to Pathize is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Pathize’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Pathize at the following address: 215 N Peoria St., Floor 8, Chicago, Illinois, 60607. Such notice shall be deemed given when received by Pathize by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
15.9 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.10 Severability. If any portion of the Agreement is held 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.
15.11 Third Party Rights. The Agreement is between you and Pathize, and no other person shall have any rights or obligations pursuant to the Agreement.
15.12 Consumer Complaints. In accordance with California Civil Code §1789.3, you 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 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
15.13 Entire Agreement. The Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.