HYLONOME TERMS & CONDITIONS
Updated on October 18, 2018
“You” and “your” refer to the original purchaser of the Hylofit Device and the person accessing or using the Hylofit Service, or if you purchase a Hylofit Device or you create an account on behalf of an employer, company, organization, or other entity, then (1) all references to “you” herein includes you and that entity, and (2) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf.
TERMS OF SERVICE
Persons under the age of 13, or any higher minimum age in the jurisdiction where that person resides, are not permitted to access or use the Hylofit Service unless their parent or guardian has consented in accordance with applicable law. If you are under age 13, you may not, under any circumstances or for any reason, use the Hylofit Service. We may, in our sole discretion, refuse to offer the Hylofit Service to any person or entity and change our eligibility criteria at any time. The right to access the Hylofit Service is revoked where these Terms or use of the Hylofit Service is prohibited or to the extent offering, sale or provision of the Hylofit Service conflicts with any applicable law, rule or regulation. Additionally, you cannot access or use the Hylofit Service if you are barred from receiving services under applicable law or have previously been suspended or removed from the Hylofit Service.
3. Creating an Account
Full use of the Hylofit Service requires that you create an account by providing us with information such as your full name and a valid e-mail address, as well as a strong password. You shall not select or use as a username a name of another person with the intent to impersonate that person or use as a username a name subject to any rights of a person other than you without appropriate authorization. You are responsible for all activity that occurs in association with your account and for keeping your account secure. You should never publish, distribute or post login information for your account. Take care when sharing Your Content, including your training and fitness data, with third-parties, including Authorized Third-Parties, so as not to inadvertently send or share Customer Data or other confidential or account information. Hylonome is not liable for any loss or damages associated with an Authorized Third-Party or your failure to maintain the confidentiality of your account credentials and Customer Data. You must contact Customer Support at email@example.com if you discover or suspect any security breach related to the Hylofit Service or your account.
4. Necessary Equipment and Connectivity
Full use of the Hylofit Service is dependent upon your use of a supported mobile device or a computer with adequate software and adequate Internet access. The maintenance and security of this equipment may influence the performance of the Hylofit Service and it is your responsibility to ensure the equipment’s continued functionality, including those caused by upgrades and updates to the Hylofit Service.
5. Use of the Service through only Authorized Connections
You may connect to the Hylofit Service using only (i) a Hylofit Device; (ii) our mobile applications and software, or approved third-party applications, software, or devices; or (iii) our websites.
6. Your Responsibilities
You agree to cooperate with Hylonome as reasonably necessary for Hylonome’s delivery of Hylofit Devices and access to the Hylofit Service in a timely manner. You agree to provide Hylonome with interface and other information regarding access to third-party products in your network and necessary third-party consents and licenses to enable Hylonome’s performance under these Terms. You are responsible for regularly backing up Your Content in accordance with good computing practices and for ensuring that your networks and systems are adequately secured against unauthorized intrusion or attack, and will promptly notify Hylonome if you become aware of any such intrusion or attack. If you fail to meet your cooperation obligations under this Section or as otherwise provided under these Terms, Hylonome may delay or suspend its delivery of Hylofit Devices or access to the Hylofit Service relating to yourfailure.
7. Posting your Content on the Hylofit Service
The Hylofit Service may include functionality to permit the submission of Your Content, whether manually at your direction or automatically in accordance with your account settings, and the hosting, sharing, and/or publishing of Your Content. You understand that Hylonome does not guarantee any confidentiality with respect to Your Content that you submit to or through the Hylofit Service.
You retain all rights to Your Content that you post to the Hylofit Service. You are responsible for Your Content. You represent and warrant that you own Your Content or that you have all rights necessary to grant us a license to use Your Content as described in these Terms.
By making Your Content available on or through the Hylofit Service, you hereby grant to Hylonome a non-exclusive, transferable, sub-licensable, worldwide, royalty-free license to use, copy, modify, publicly display, publicly perform, reproduce, translate, create derivative works from, and distribute Your Content, in whole or in part, including your name and likeness, in any media and in connection with our provision of the Hylofit Service and our (and our successors’) business, including without limitation for promoting and redistributing part or all of the Hylofit Service in any media formats and through any media channels and sharing Your Content with social media platforms (i.e., posting Your Content to Twitter, Instagram or Facebook if enabled in your account’s sharing settings) with our business partners and licensees for informational and analytical purposes. Hylonome will take reasonable steps to aggregate and de-identify data so that you are not personally identifiable; however, you acknowledge that, based on context and third-party information, such steps may be inadequate and you may remain personallyidentifiable.
You represent and warrant that Your Content, the use and provision of Your Content on the Hylofit Service and your use of the Hylofit Service will not (a) infringe, misappropriate or violate a third-party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (b) violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) be fraudulent, false, misleading or deceptive; (d) be defamatory, obscene, pornographic, vulgar or offensive; (e) promote discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (f) be violent or threatening or promote violence or actions that are threatening to any person or entity; or (g) promote illegal or harmful activities or substances.
You further agree not to (1) upload any content that contains software viruses or is designed to interrupt, destroy or limit the functionality of any equipment or services, or that contains other harmful, disruptive or destructive files or content; (2) use or attempt to use another user’s account without authorization, or impersonate any person or entity; (3) harvest, solicit, or collect information of other users for any reason whatsoever, including, without limitation, for sending unsolicited communications; (4) post, advertise or promote products or services commercially, or upload any content that is advertising, promotional material, junk mail, spam or a contest or sweepstake, or that furthers or promotes criminal activity; or (5) use the Hylofit Service in any manner that, in our sole discretion, is inconsistent with its intended use or is objectionable or restricts or inhibits any other person from using or enjoying the Hylofit Service, or which may expose us or our users to any harm or liability of any type.
We do not endorse Your Content or any opinion, recommendation or advice expressed therein, and you will not take any action that may reasonable be viewed as an endorsement by us of you or Your Content. We expressly disclaim any and all liability in connection with Your Content. We do not permit copyright infringing activities and infringement of intellectual property rights in connection with the Hylofit Service, and we reserve the right to remove any and all of Your Content if properly notified that any of Your Content infringes on another’s intellectual property rights. We reserve the right to decide whether Your Content is appropriate and complies with these Terms for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornography, obscene or defamatory material, or excessive length. We may, in our sole discretion, alter, remove or refuse to display any of Your Content, and/or terminate your access for posting, uploading, storing, sharing, sending or displaying Your Content to and through the Hylofit Service in violation of these Terms at any time without priornotice.
8. Copyright Policy
It is our policy, in appropriate circumstances and at our discretion, to disable and/or terminate the accounts of users who repeatedly infringe on the copyrights of others in accordance with the U.S. Digital Millennium Copyright Act (“DMCA” (the text of which can be found at the U.S. Copyright Office Web Site, http://www.copyright.gov).
If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, and believe that any Content available on or through the Hylofit Service infringes upon your copyrights, you may report alleged copyright infringements by providing the information set forth below in a DMCA Notice and delivering it to Hylonome’s Designated Copyright Agent. Upon receipt of the DMCA Notice, we will take whatever action, in our sole discretion, we deem appropriate, including removal of the Content. If we remove or disable access in response to such a notice, we may notify the owner or administrator of the Content so that he or she can make a counter notification.
Please note that filing a report of intellectual property infringement is a serious matter with legal consequences. Any person who knowingly materially misrepresents that any Content or activity is infringing could be liable for damages pursuant to section 512(f) of the DMCA or similar laws in other jurisdictions or countries. Accordingly, if you are not sure whether material available online infringes your copyright, we suggest that you first contact an attorney. You acknowledge that if you fail to comply with all of the notice requirements below, your DMCA Notice may not be valid.
In any DMCA Notice delivered to Hylonome’s Designated Copyright Agent:
Identify the copyrighted work that you claim has been infringed, or—if multiple copyrighted works are covered by this DMCA Notice—you may provide a representative list of the copyrighted works that you claim have been infringed.
Identify the Content that you claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the Content, including at a minimum, if applicable, the URL of the link shown on the site(s) where such material may be found.
Provide your mailing address, telephone number, and, if available, e-mail address. (Note that we may provide your contact information, including your name and e-mail address, the name and address of the owner of the right in question, and/or the contents of your report to the person who posted the material you are reporting).
Include both of the following statements in the body of the DMCA Notice:
“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
“I hereby state that the information in this DMCA Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
Provide your full legal name and your electronic or physical signature. Deliver this DMCA Notice, with all items completed, to Hylonome’s Designated Copyright Agent:
Name: Kolitch Romano LLP
Phone: (503) 994-1650
Fax: (971) 279-4549
9. Hylofit Content and Rights
Subject to these Terms, we grant to you a worldwide, non-exclusive, non-sublicensable and non- transferable license to (i) access and use (i.e., to download and display locally) the Hylofit Content made available through the Hylofit Service, solely for purposes of using the Hylofit Service. Use, reproduction, modification, distribution or storage of any Hylofit Content, software or applications for any purpose other than the purpose of using the Hylofit Service is expressly prohibited without prior written permission from us.
Hylofit Content, the Hylofit Service, and its underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. Unauthorized use of Hylofit Content may violate copyright, trademark, and other laws. Other than your rights in Your Content, you have no rights in or to the Hylofit Content, and you maynot use the Hylofit Content except as permitted under these Terms. No use other than the uses expressly permitted hereunder is allowed without prior written consent from us or the owner of the Hylofit Content. We reserve all rights not expressly set forth in these Terms.
You agree not (i) to remove, change or obscure any copyright, trademark, service mark or other notices of proprietary rights incorporated in or accompanying the Hylofit Service; (ii) to sell, transfer, assign, license, sublicense or modify the Hylofit Content; or (iii) to reproduce, display, publicly perform, make a derivative version of, distribute or otherwise use the Hylofit Content in any way for any public or commercial purpose. Our name, logos and any other Hylonome trademarks that may appear on the Hylofit Service, and the overall look and feel of the Hylofit Service, including page headers, graphics, icons and scripts, may not be copied, imitated or used, in whole or in part, without our prior written permission. Other trademarks, product, and service names and company names or logos mentioned on the Hylofit Service are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable holder. If you violate any of these Terms, your permission to access and/or use the Hylofit Content and Hylofit Service automatically terminates and you must immediately destroy any copies you have made of the Hylofit Content. YOU ARE SOLELY RESPONSIBLE FOR BACKING UP YOUR CONTENT AND HYLONOME WILL NOT BE RESPONSIBLE IF YOUR CONTENT IS LOST FOR ANY REASON.
We are not obligated to monitor access or use of the Hylofit Service, Hylofit Content, or Your Content, or to review or edit any Hylofit Content or Your Content, but we have the right to do so for the purpose of operating the Hylofit Service, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right (but are not required) to remove or disable access to the Hylofit Service, any Hylofit Content or Your Content at any time, without notice and at our sole discretion, if we determine that the Hylofit Content, Your Content or your use of the Hylofit Service is objectionable or in violation of these Terms.
We have the right to investigate violations of these Terms and any conduct that affects the Hylofit Service, and in response may take any action we may deem appropriate. We may consult with and disclose unlawful conduct to law enforcement authorities and, pursuant to valid legal process, we may cooperate with law enforcement authorities to prosecute users who violate the law.
10. Software License Terms and Restrictions
Hylonome grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to (1) access and use the Hylofit Service, (2) access and use the software and mobile applications provided by the Hylofit Service, and (3) use the software that is embedded into Hylofit Devices as authorized in these Terms. This license is provided solely for your personal, non-commercial use and enjoyment of the Hylofit Service as permitted in these Terms.
You will not use, sublicense, copy, adapt, modify, translate, disclose, prepare derivative works based upon, distribute, license, sell, rent, lease, assign, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Hylofit Content, Hylofit Service or any portion thereof, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Hylonome or its licensors, except for the licenses and rights expressly granted in these Terms.
Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the Hylofit Service: (i) access or tamper with non-public areas of the Hylofit Service, Hylonome’s computer systems or the technical delivery systems of Hylonome’s providers; (ii) test the vulnerability of any Hylonome system or breach any security or authentication measures; (iii) circumvent any technological measure implemented by Hylonome, or any of Hylonome’s providers or any other third-party (including another user) to protect the Hylofit Service; (iv) access the Hylofit Service or Hylofit Content through the use of any mechanism other than through the use of an Authorized Connection or the Hylofit Service; or (v) modify, decompile, disassemble, reverse engineer, tamper with or otherwise attempt to derive the source code of any software that Hylonome provides to you or any other part of the Hylofit Service.
The Hylofit Service is for personal use only and may not be used in connection with any commercial endeavors except those that are specifically approved by Hylonome. The following activities are expressly prohibited: (i) collecting usernames and/or e-mail addresses of other users by electronic or other means for the purpose of sending unsolicited e-mail or other communications; (ii) any use of the Hylofit Service, which in our sole judgment, degrades the reliability, speed or operation of the Hylofit Service or any underlying hardware or software thereof; (iii) use of web scraping, web harvesting or web data extraction methods from Hylonome even if the account owner gives permission; and (iv) any use of the Hylofit Service which is unlawful or in violation of these Terms.
11. Changes to the Service
Hylonome may change or discontinue, temporarily or permanently, any feature or component of the Hylofit Service, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Hylofit Service, at any time without notice. Hylonome is not liable to you or to any third-party for any modification, suspension or discontinuance of any feature or component of the Hylofit Service. We will try to give you notice when we make a material change to the Hylofit Service, but this is not always practical. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by Hylofit Devices without prior notice to you. You are responsible for ensuring adequate connectivity to wireless service so that updates can be downloaded promptly. Hylonome may provide upgrades and updates to the Hylofit Service from time to time and at any time. You are solely responsible for implementing such upgrades and updates, and Hylonome is not liable for any damage or loss caused by your failure to implement such upgrades or updates upon its release. You are responsible for ensuring adequate connectivity to wireless service so that updates can be downloaded promptly.
Hylonome agrees to maintain its information security program that includes administrative, technical and physical safeguards reasonably designed to (i) protect the security and confidentiality of the Customer Data, (ii) protect against anticipated threats or hazards to the security of the Customer Data, (iii) protect against unauthorized access to or use of the Customer Data, and (iv) purge or dispose of the Customer Data in a secure manner. Hylonome will promptly notify you upon becoming aware of any breach of Hylonome systems that results in any actual unauthorized access to or theft or other loss of the Customer Data and will take action designed to prevent further unauthorized access. Hylonome will provide information that you reasonably request pertaining to the incident and will cooperate with you to investigate any such unauthorized access; provided that, Hylonome shall not be obligated to provide you information regarding any other customer of Hylonome or of any employee, contractor or agent of any other customer of Hylonome. Furthermore, Hylonome will regularly monitor its security plan to protect against unauthorized access to (both physical and electronically maintained information) or use of such information that could result in substantial harm and review the scope of security measuresannually.
We reserve the right to suspend or deactivate your account or your access to certain aspects or all of the Hylofit Service, or to terminate these Terms, at our sole discretion, at any time and without notice or liability to you. Upon any such suspension, deactivation or termination, we may delete or remove Your Content and other information related to your account. Upon cancellation or termination, all licenses granted to you hereunder shall terminate automatically, your right to use the Hylofit Service shall cease and Your Content will no longer be available to you through the Hylofit Service. You may close your account at any time by contacting Customer Support. YOU ARE SOLELY RESPONSIBLE FOR MAINTAINING COPIES OF YOUR DATA AND YOUR CONTENT. WE EXPRESSLY DISCLAIM ANY LIABILITY OR RESPONSIBILITY FOR ANY LOSS OF YOUR CONTENT FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, TERMINATION OF YOUR ACCOUNT FOR ANY REASON, EQUIPMENT MALFUNCTION OR FAILURE OR DATA BREACH.
THE HYLOFIT SERVICE AND HYLOFIT CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES ARISING OUT OF OR RELATED TO THESE TERMS OR THE HYLOFIT SERVICE, INCLUDING ANY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
WE, OUR AFFILIATES, OUR PARTNERS AND OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE HYLOFIT CONTENT (INCLUDING YOUR CONTENT) OR THE HYLOFIT SERVICE, INCLUDING, BUT NOT LIMITED TO, QUALITY, ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS, TRUTHFULNESS OR RELIABILITY.
NEITHER WE NOR OUR AFFILIATES OR PARTNERS SHALL BE SUBJECT TO LIABILITY FOR TRUTH, ACCURACY OR COMPLETENESS OF ANY CONTENT (INCLUDING HYLOFIT CONTENT AND YOUR CONTENT) OR OTHER INFORMATION CONVEYED TO YOU OR CONVEYED BY YOU THIRD-PARTIES (INCLUDING AUTHORIZED THIRD-PARTIES) FOR ERRORS, MISTAKES OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. FURTHER, WE MAKE NO WARRANTY THAT THE HYLOFIT SERVICE WILL BE AVAILABLE ERROR FREE OR THAT THE HYLOFIT SERVICE OR THE HYLOFIT CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE HYLOFIT SERVICE OR THE HYLOFIT CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE SHALL NOT BE RESPONSIBLE FOR THOSE COSTS. YOU AGREE THAT YOU USE THE HYLOFIT SERVICE AND THE HYLOFIT CONTENT AT YOUR OWN RISK.
You will indemnify and hold harmless Hylonome or its officers, directors, employees, affiliates, agents, licensors and contractors from and against any claims, suits, actions, demands, disputes, allegations or investigations brought by any third-party, governmental authority or industry body, and all liabilities, damages, losses, costs and expenses, including without limitation reasonable attorneys’ fees, arising out of or in any way connected with (i) your access to or use of the Hylofit Service, (ii) Your Content, including the intentional or inadvertent sharing of Your Content with Authorized Third-Parties, (iii) your breach or alleged breach of any warranties made by you hereunder or your violation of any other provision of these Terms, including, but not limited to, those set forth in Section 6 of these Terms, or (iv) your violation of any law or the rights of a third-party. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
16. Limitation of Liability
NEITHER HYLONOME, ITS SUPPLIERS OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING A HYLOFIT DEVICE OR THE HYLOFIT SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE HYLOFIT SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PERSONAL INJURY, INJURY TO ANIMAL, PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT HYLONOME HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL HYLONOME’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE HYLOFIT SERVICE EXCEED THE GREATER OF (1) THE AMOUNTS YOU HAVE PAID TO HYLONOME FOR USE OF THE HYLOFIT SERVICE IN THE PAST SIX (6) MONTHS OR (2) ONE HUNDRED DOLLARS ($100). THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HYLONOME AND YOU.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
17. Dispute Resolution
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US, LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US AND WAIVES YOUR RIGHTS TO SUE IN COURT AND TO A JURY TRIAL.
You agree that all Disputes will be governed by the arbitration procedure outlined below.
Governing Law: Except as otherwise required by applicable law, the Terms of Service and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of Connecticut without regard to its conflict of laws principles.
Informal Dispute Resolution: We want to address your concerns without needing a formal legal case. Before filing a claim against Hylonome, you agree to try to resolve the Dispute informally by contacting firstname.lastname@example.org. We will try to resolve the Dispute informally by contacting you through e-mail. If a dispute is not resolved within 30 days after submission, you or Hylonome may bring a formal proceeding.
We Both Agree To Arbitrate: EXCEPT AS SET FORTH UNDER EXCEPTIONS TO AGREEMENT TO ARBITRATE BELOW, WE BOTH AGREE THAT ALL DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND US, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AGREE HYLONOME AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JUDGE OR A JURY.
Opt-out of Agreement to Arbitrate: YOU CAN DECLINE THIS AGREEMENT TO ARBITRATE BY CONTACTING email@example.com WITHIN 30 DAYS OF FIRST ACCEPTING THESE TERMS OF SERVICE AND STATING THAT YOU (INCLUDE YOUR FIRST AND LAST NAME) DECLINE THIS ARBITRATION AGREEMENT.
Arbitration Procedures: The arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by these Terms and this agreement to arbitrate. The Consumer Arbitration Rules are available online (https://www.adr.org/sites/default/files/Consumer%20Rules.pdf).The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. The arbitration will be held in Wilton, Connecticut or any other location we agree to. If we are unable to agree on a location, such determination should be made by the AAA or by the arbitrator.
Arbitration Fees: The AAA’s Consumer Arbitration Rules will govern payment of all arbitration fees.
Exceptions to Agreement to Arbitrate: Either you or Hylonome may assert claims, if they qualify, in small claims court in Wilton, Connecticut. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of Hylofit Devices or the Hylofit Service, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute- resolution process described above.
No Class Actions: YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION AND TO BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Notwithstanding anything to the contrary in this Section or any other provision of these Terms or in the AAA’s Consumer Arbitration Rules, Disputes regarding the enforceability, revocability or validity of the foregoing class action waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the Dispute is filed as a class, collective or representative action, and (2) there is a final judicial determination that all or part of such class action waiver is unenforceable, then the class, collective and/or representative action, to that extent, must be litigated in a civil court of competent jurisdiction, but the portion of such class action waiver that is enforceable shall be enforced in arbitration.
Judicial Forum for Disputes: Except as otherwise required by applicable law, in the event that the agreement to arbitrate is found not to apply to you or your claim, you and Hylonome agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Fairfield, Connecticut. Both you and Hylonome consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
Limitation on Claims: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of Hylofit Devices or the Hylofit Service must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
18. General Terms
Except as otherwise stated herein, these Terms constitute the entire and exclusive understanding and agreement between Hylonome and you regarding the Hylofit Service, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Hylonome and you regarding the Hylofit Service and Hylofit Content.
We will notify you before we make material changes to these Terms and give you an opportunity to review the revised Terms before continuing to use the Hylofit Service. When you use the Hylofit Service after a modification becomes effective, you are telling us that you accept the modified Terms.
You may not assign, delegate or transfer these Terms, or any rights and licenses granted hereunder, by operation of law or otherwise, without Hylonome’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Hylonome may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Hylonome under these Terms, including those regarding modifications to these Terms, will be given: (i) via e-mail or (ii) by posting to the Hylofit Service. For notices made by e-mail, the date of receipt on the message will be deemed the date on which such notice is transmitted.
If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
Hylonome’s failure to act on or to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Hylonome. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
These Terms are governed by the internal substantive laws of the State of Connecticut, without respect to its conflict of law provisions. You expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in the City of Wilton in the State of Connecticut.
All sections of these Terms that, by their nature, should survive termination will survive termination, including, without limitation, the sections entitled Posting Your Content on the Hylofit Service, Software License Terms and Restrictions, Disclaimers, Indemnity, Limitation of Liability, Dispute Resolution and General Terms.
19. Additional Terms May Apply
Additional terms may apply to certain products or services. In the event that there is a conflict between these Terms and any additional terms, the additional terms will control.
20. Contact Us
Please contact us if you have any questions about these terms. You may contact us at firstname.lastname@example.org or at our mailing address below.
180 Millstone Road
Wilton, CT 06897
21. Defined Terms
“Authorized Connection” means (i) a Hylofit Device; (ii) our mobile applications and software, or approved third-party applications, software or devices; or (iii) our websites.
“Authorized Third-Party” means any third-party, including, but not limited to, trainers, fitness and health professionals to whom you permit to access Your Content, Customer Data or other account information.
“Content” means all content or other material available on or through the Hylofit Service, including all applications, products, user-generated content, posts or materials on user forums, or any other content.
“Customer Data” means non-public information provided by you that identifies an individual and is linked to or provides access to such individual’s financial or health information, including the individual’s first name or first initial and last name, social security number, driver’s license number or state identification number, financial account or credit or debit account number, individually identifiable health information as defined in 45 C.F.R. 160.103, and any security code or access code or password that would permit access to any such financial account or any such individually identifiable health information.
“Dispute” means any dispute, disagreement, claim or litigation between you and Hylonome arising out of or relating to these Terms of Service, the Hylofit Service or any other Hylofit Devices, products or services.
“DMCA Notice” means a notification of alleged infringement pursuant to the Digital Millennium Copyright Act (“DMCA”). See 17 U.S.C 512(c)(3) for further detail.
“Designated Copyright Agent” means Kolitch Romano LLP.
“Hylofit Content” means any and all content or material, including any photos, images, graphics, video, audio, data, text, music, exercise regimens, food logs, recipes, comments, software, works of authorship of any kind, and other information that is posted, generated, provided or otherwise made available through the Hylofit Service other than Your Content.
“Hylofit Device” means any device that is manufactured, distributed, or sold by Hylonome itself or through its authorized resellers or agents, including any hardware that is Hylonome- branded.
“Hylofit Service” means the services, features, content, websites (or other linked pages) or applications offered, from time to time, by Hylonome in connection with Hylofit Devices, including associated firmware, and the Hylonome software embedded within the Hylofit Devices.
“Your Content” means any user profile information you submit and make publicly available, any personally identifiable information collected by a Hylofit Device, and any information that you post to the extent such information is not aggregated and de-identified.
1. Software License
To the extent the Hylofit Device contains or consists of software in any form, such software is licensed to you, not sold, and only in accordance with this Section. Hylonome grants to you a limited, nonexclusive, nontransferable license to use the software, in executable form, solely as embedded in the Hylofit Device and solely for your internal, non-commercial use. You may not copy or modify the software. You acknowledge that the software contains trade secrets of Hylonome, and, in order to protect such trade secrets, you agree not to disassemble, decompile or reverse engineer the software, nor to permit any third-party to do so, except to the extent such restrictions are prohibited by law. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Hylonome or its licensors, except for the licenses and rights expressly granted in these Terms. Hylonome reserves all rights and licenses in and to the software not expressly granted to you under theseTerms.
Full use of your Hylofit Device dependent upon adequate connectivity to a wireless network. Performance results will be tracked and recorded through your Hylofit Device so long as your Hylofit Device Transmitter is has adequate battery power. However, performance results will be uploaded to the Hylofit Service and reflected in and saved to your account only once the Hylofit Device is within range of your supported mobile device and connected thereto over Bluetooth®.
3. No Medical Advice
Hylonome provides the Hylofit Service for you to track, manage, and share your performance in order to improve training results and promote the overall health and wellbeing of the horse. THE HYLOFIT SERVICE AND ANY RESULTS OR CONTENT DISPLAYED VIA THE HYLOFIT SERVICE DO NOT PROVIDE MEDICAL ADVICE AND ARE NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. THE HYLOFIT SERVICE IS NOT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY MEDICAL CONDITION. ALL CONTENT AVAILABLE THROUGH THE HYLOFIT SERVICE IS FOR GENERAL INFORMATIONAL PURPOSES ONLY. USE OF THE HYLOFIT SERVICE DOES NOT CREATE ANY PHYSICIAN-PATIENT RELATIONSHIP.
If you have a medical or heart condition, consult your doctor before using the Hylofit Service or engaging in an exercise or training program. If you experience a medical emergency, stop using the Hylofit Service and consult with a medical professional. Similarly, if your horse has a medical or heart condition, consult your veterinarian trainer before using the Hylofit Service or engaging in an exercise or training program. If your horse experiences a medical emergency, stop using the Hylofit Service and consult with an appropriate professional. We are not responsible for any health problems that may result from training programs, consultations, products, or events you learn about through the Hylofit Service. If you engage in any exercise or training program that you receive or learn about through the Hylofit Service, you agree that you do so at your own risk and are voluntarily participating in these activities.
Prolonged contact with wearable devices may contribute to skin irritation or allergies in some users or horses. To reduce irritation, (1) keep the Hylofit Device clean, (2) keep the Hylofit Device dry, (3) follow the instructions in the Instructions Manual and (4) give your horse a rest by removing the Hylofit Device for an hour after extended wear. If you notice any skin irritation, soreness, or chaffing while or after wearing the product, remove the device from you and/or your horse and please discontinue use. If any symptoms persist longer than 2-3 days after removing the device, consult your doctor and/or veterinarian.
Hylofit Devices have a heart rate tracking feature that may pose risks to users with certain health conditions. Consult your doctor prior to use of such products if you (1) have a medical or heart condition, (2) are taking any photosensitive medicine, (3) have epilepsy or are sensitive to flashing lights, (4) have reduced circulation or bruise easily or (5) have tendonitis, carpal tunnel syndrome or other musculoskeletaldisorders.
4. Important Safety and Product Information
FAILURE TO HEED THE FOLLOWING WARNINGS COULD RESULT IN AN ACCIDENT RESULTING IN DEATH OR SERIOUS INJURY.
Battery Warnings: Only CR2032 lithium coin batteries can be used with Hylofit Devices. If the below guidelines are not followed, the battery may experience a shortened life span or may present a risk of damage to the device, fire, chemical burn, electrolyte leak and/or injury.
Do not disassemble, modify, remanufacture, purchase or damage the Hylofit Device or battery.
Do not expose the Hylofit Device or battery to fire, explosion or other hazard.
Do not use a sharp object to remove the battery.
KEEP BATTERY AWAY FROM CHILDREN
NEVER PUT BATTERY IN MOUTH. Swallowing can lead to chemical burns, perforation of soft tissue and death. Severe burns can occur within two (2) hours of ingestion. Seek medical attention immediately if swallowed.
Do not leave the Hylofit Device where a horse may attempt to chew on it. If the battery is punctured, electrolytes can be released which can be harmful to the animal and risk fire or explosion.
FAILURE TO HEED THE FOLLOWING NOTICE COULD RESULT IN PERSONAL, ANIMAL OR PROPERTY DAMAGE, OR NEGATIVELY IMPACT THE DEVICE FUNCTIONALITY.
Do not immerse the Hylofit Device or battery in water or other liquids.
Do not leave the Hylofit Device exposed to a heat source or in a high-temperature location, such as in the sun in an unattended vehicle. To prevent the possibility of damage, remove the Hylofit Device from the high-temperature location or store it out of direct sunlight.
Contact your local waste disposal department to dispose of the Hylofit Device and/or battery in accordance with applicable local laws and regulations.
5. Returns and Warranties
Our Thirty (30) Day Return Policy: We guarantee complete 100% satisfaction with your purchase. If you are unhappy or unsatisfied with your Hylofit Device, you may return it for any reason within thirty (30) days of your purchase of the Hylofit Device for a full refund.
To receive your refund, you must request a return within thirty (30) days of your purchase of the Hylofit Device.
To request a return, you must contact email@example.com, at which point a return shipping instructions will be provided to you. Once you have requested your return, you are eligible for a refund, provided that the Hylofit Device is received within thirty (30) days from the date you requested the return.
Limited Warranty: Hylonome warrants that your Hylofit Device is free from defects in materials or workmanship under normal use for a period of one thirty (30) days from the date of your First Use of the Hylofit Device. If a defect arises and a return authorization request is received by Hylonome within the applicable Warranty Period, Hylonome will, subject to the conditions below and to the extent permitted by law, either (1) repair the Hylofit Device at no additional charge, using new or refurbished replacement parts, or (2) replace the Hylofit Device with a new or refurbished Hylofit Device. Shipping and handling charges may apply except where prohibited by applicable law.
Hylonome is not responsible to repair or replace your Hylofit Device if you violate this Limited Warranty. This Limited Warranty is non-transferable. Any Limited Warranty replacement Hylofit Device shall be warranted under the original Warranty Period for the remainder of that period or for thirty (30) days, whichever is longer, or for any period as required by applicable law.
This Limited Warranty does not cover:
Lost Hylofit Device(s);
Damage or failure through misuse or malfunction, normal wear and tear or aging of the Hylofit Device(such as discoloration or stretching), improper, abnormal or negligent use, use with non-Hylonome products, unintended uses or any use contrary to instructions provided by Hylonome;
Damage or failure due to accident, acts of God, unauthorized commercial use, abuse, mishandling, flood, fire, earthquake, neglect, theft, unusual atmospheric conditions or other external causes;
Any unauthorized modification to the Hylofit Device;
Attempted repair by unauthorized persons or with any parts not originally intended for or compatible with the Hylofit Device; and
Any alteration of the factory model name and/or serial number.
This Limited Warranty gives you specific legal rights. You may also have other rights which vary from state to state that may result in the change of this warranty.
Warranty Replacement Procedure: To request a warranty replacement, you must contact Hylonome at firstname.lastname@example.org, at which point Hylonome shall send you return shipping instructions for the defective Hylofit Device. Once the returned Hylofit Device has been received, a replacement Hylofit Device will be shipped to you.
THIS LIMITED WARRANTY IS THE EXCLUSIVE WARRANTY GIVEN BY HYLONOME AND SUPERSEDES ANY PRIOR, CONTRARY OR ADDITIONAL REPRESENTATIONS. HYLONOME SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND. ANY AND ALL EXPRESS OR IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED EXCEPT TO THE EXTENT PROHIBITED BY LAW. IN SUCH EVENT, SUCH WARRANTY IS LIMITED IN DURATION TO THE WARRANTY PERIOD. THIS EXCLUSION APPLIES EVEN IF THIS WARRANTY FAILS OF ITS ESSENTIAL PURPOSES.
This Limited Warranty shall be governed by the laws of the State of Connecticut, excluding the State of Connecticut’s conflicts of laws principles.