Welcome to Ucardia. Ucardia provides fully integrated cloud-based services for remote, on-demand cardiac care services (as modified, “CCS”) for employers (collectively, “Employers” or “you”) that can be accessed through a mobile application (as modified, the “App”). The website at www.ucardia.com (the “Site”), and the various equipment, exercise videos, nutritional information and other content and other related services, and other features, functions, software, applications and websites (together with the CCS Services, the App, and the Site, collectively the “Ucardia Services”) are provided and operated, and are being made available to you and the other users of any of the Ucardia Services (collectively, “Users”) by Ucardia, Inc. (“Ucardia”, “us” or “we”). All defined terms used herein shall have the meanings prescribed to these terms in these Terms of Service.
These Terms contain an Arbitration provision which will, with limited exception, require you to submit disputes you have against Ucardia to binding and final arbitration. You will only be permitted to pursue claims against Ucardia on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
IF YOU ARE IN NEED OF IMMEDIATE MEDICAL ATTENTION OR IF YOU HAVE A MEDICAL EMERGENCY, YOU SHOULD CALL 911 OR CONSULT WITH A MEDICAL PROFESSIONAL IMMEDIATELY.
To access and use the CCS, the APP, the CCS Platform, the Site and the other Ucardia Services, you must be at least 18 years of age. BY CLICKING THE “I AGREE” BUTTON, BY ACCESSING OR USING THE CCS SERVICES, THE APP, THE CCS PLATFORM OR ANY OF THE OTHER UCARDIA SERVICES, YOU REPRESENT THAT:
Notwithstanding the foregoing, Ucardia shall comply with all applicable state and federal laws and regulations including the privacy and confidentiality of records including but not limited to (i) The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”); (ii) the Privacy and Security Standards (45 C.F.R. Parts 160 and 164) and the Standards for Electronic Transactions (45 C.F.R Parts 160 and 162) (collectively, the “Standards”) promulgated or as to be promulgated by the Secretary of Health and Human Services on and after the applicable effective dates specified in the Standards; and (iii) The Health Information Technology Economic and Clinical Health Act of 2009 (the “HITECH Act” and together with HIPAA and the Standards, collectively, the “Privacy and Security Laws”). Ucardia shall comply with all bylaws, rules, regulations, and policies of the applicable Healthcare Providers regarding the confidentiality and privacy of Protected Health Information, as defined in 45 C.F.R. 164.501, and Individually Identifiable Health Information (as defined in 42 U.S.C.§130d(6)) (collectively, “PHI”).
If Ucardia ever creates, receives, maintains, or transmits protected health information, as such term is defined by 45 C.F.R. § 160.103, in connection with the CCS, the App or the CCS Platform, then Ucardia shall (i) enter into a Business Associate Agreement (a “BAA”) with the applicable Healthcare Providers, in form and substance reasonably acceptable to the parties and (ii) comply with (A) the terms of the Business Associate Agreement and (B) all applicable healthcare related laws, including the Privacy and Security Laws.
Ucardia does not expect to access any PHI but to the extent that it does, Ucardia agrees that it shall not disclose to any third party, except where required or permitted by law and any BAA if applicable, any PHI, medical record or other User information regarding any User, and in such case, disclosures shall be made in accordance with the applicable policies of the parties, the applicable BAA and the applicable Privacy and Security Laws. All medical information and data concerning specific Users, including but not limited to PHI and the identification of Users, derived from the access and use of the CCS and/or the CCS shall be treated and maintained in a secure and confidential manner.
3. The CCS.
3.1 Accessing and Using the CCS Services.
(b) Once the User is registered, Ucardia will send, at no cost to the User, depending upon their specific needs, some combination of a, (i) a tablet, (ii) a fitness tracker (the “Tracker”), (iii) a Bluetooth-enabled blood pressure cuff (the “Cuff”), (iv) a Bluetooth-enabled Pulse Oximeter (“Pulse Ox”), (v) exercise bands, and on an exception basis for some users a (vi) Bluetooth-enabled scale, collectively, the “Equipment”. The Tracker collects heart rate and pedometer data while the Cuff takes blood pressure. The Pulse Oximeter measures blood oxygen saturation. Heart rate, blood pressure, and blood oxygen saturation data (collectively, the “CCS Biometric Data”) are automatically uploaded to the CCS Platform. If you don’t follow the instructions in the App for how to use the Equipment, then the CCS may be ineffective for you.
(c) The CCS include various exercise videos (collectively, the “Exercise Videos”) that are Cardiologist-endorsed workouts selected for a User’s needs throughout the cardiac care process. Sessions can be either, 1) guided by an on-screen coach with real-time heart rate monitoring (using the Tracker) or 2) performed by oneself without a coach. A summary of each session including cardiac performance, and progress toward goals are available through the app.
(d) The CCS Biometric Data are aggregated and parsed through the CCS Platform and are available for review by you.
3.2 Not Medical Advice. Ucardia provides the CCS, the App, the CCS Platform, the Exercise Videos and the Equipment to facilitate the CCS. NOTHING IN THE CCS, THE APP, THE CCS PLATFORM OR THE EXERCISE VIDEOS SHOULD BE INTERPRETED AS MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. UCARDIA DOES NOT PROVIDE MEDICAL SERVICES OR RENDER MEDICAL ADVICE. NOTHING IN THE CR SERVICES, THE APP, THE CR PLATFORM OR THE EXERCISE VIDEOS IS OR SHOULD BE CONSIDERED, OR USED AS A SUBSTITUTE FOR, MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. You should always discuss any questions or concerns that you might have about your health or medical condition with your doctor or other Healthcare Provider.
3.3 Independent Service Providers. Healthcare Providers are independent service providers who may be chosen by the User on their own and are not affiliated with Ucardia in any way. Ucardia does not endorse any Healthcare Provider and does not verify the suitability, skills, ability, degrees, qualifications, credentials, experience or background of any Healthcare Provider a user may wish to share their data with. Ucardia assumes no responsibility for any advice, information, diagnosis or services provided by or any act or omission of Healthcare Providers. Ucardia exercises no control over the nature, quality, safety or legality of any User dealings with Healthcare Providers nor is Ucardia a party to, involved in or responsible for any transactions Users may enter into with their Healthcare Providers. We give no guarantees and make no representations or warranties in relation to any of these aspects whether express or implied.
4.1 Fees. There are no fees for Employees to access and use the CCS, the App or the CCS Platform as the Employer is billed for the Employee’s use of the Services, App, or Platform.
4.2 Changes in Fees. Ucardia reserves the right at any time to begin charging for services that it is currently providing free of charge upon posting on the CCS, the App, the CCS Platform, the Site, any of the other Ucardia Services or by notifying you by email.
5. Right to Access and Use; Unauthorized Use.
5.1 Right to Access and Use. Subject to your compliance with all of the terms and conditions set out in these Terms, Ucardia hereby grants to you a limited, non-exclusive, non-transferable, freely revocable right to access and use the CCS, the App, the CCS Platform, the Site, the Exercise Videos, the Equipment, and the other Ucardia Services, to the extent of, and in accordance with, these Terms.
5.2 Prevention of Unauthorized Use. Ucardia reserves the right to exercise whatever lawful means it deems necessary to prevent the unauthorized access or use of the CCS, the App, the CCS Platform or the circumvention of the other Ucardia Services, including, but not limited to, technological barriers, IP mapping, and directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
6. Additional Policies.
When accessing or using the CCS, the App, the CCS Platform, the Exercise Videos, the Equipment or any of the other Ucardia Services, you may be subject to any additional posted policies, guidelines or rules applicable to the CCS, the App, the CCS Platform, the Site and the other Ucardia Services which may be posted from time to time (as modified from time to time, the “Policies”). All such Policies are hereby incorporated by reference into these Terms.
7. Respecting other People’s Rights.
Ucardia respects the rights of others and so should you. You therefore shall not:
8. Modification of these Terms.
Ucardia reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms at any time by posting the amended Terms to the Site or any of the other Ucardia Services. If Ucardia updates these Terms, it will update the “last updated” date at the top of the Terms. Please check these Terms, including any Policies, periodically for changes. Your continued use of the CCS, the App, the CCS Platform or any of the other Ucardia Services after the posting of changes constitutes your binding acceptance of such changes. In the event of a change to these Terms that materially modifies your rights or obligations (including applicable fees), Ucardia will use commercially reasonable efforts to notify you of such change. Ucardia may provide notice through a pop-up or banner within any of the Ucardia Services, by sending an email to any address you may have provided for your account, or through other similar mechanisms. Additionally, if the changed Terms materially modify your rights or obligations, Ucardia may require you to provide consent by accepting the changed Terms. If Ucardia requires your acceptance of the changed Terms, changes are effective only after your acceptance. For all other changes, except as stated elsewhere by Ucardia, such amended Terms or fees will automatically be effective, replacing the previously-effective Terms or fees, thirty (30) days after they are initially posted on any of the Ucardia Services. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF ALL UCARDIA SERVICES.
To the extent that any modifications to the Terms or Policies are not allowed under applicable laws, the prior most recent version of the Terms or Policies shall continue to apply.
9. User Data.
(a) Security Obligations. Ucardia will employ commercially reasonable security measures to protect any information and data, including all any protected health information and CCS Biometric Data that is collected, downloaded or otherwise received, with the use of the CCS, the App or the CCS Platform (the “User Data”) in accordance with commercially reasonable standards and all applicable laws.
(b) User Data is “As Is”. In providing the CCS, the App, the CCS Platform and the other Ucardia Services, Ucardia makes the User Data available “as is” and does not undertake any monitoring, vetting, testing or screening over the quality, suitability or accuracy of the User Data. Ucardia does not purport to provide a complete record about a User.
10. Prohibited Conduct.
BY ACCESSING OR USING THE CCS, THE APP, THE CCS PLATFORM OR ANY OF THE OTHER UCARDIA SERVICES YOU AGREE NOT TO:
10.1 Decipher, decompile, disassemble, reverse engineer, modify, translate, or otherwise attempt to derive source code, algorithms, tags, specifications, architectures, structures or other elements of the CCS, the App, the CCS Platform or any of the other Ucardia Services, in whole or in part (except to the extent that the laws of your jurisdiction make such restrictions unenforceable);
10.2 Access or use the CCS the App, the CCS Platform or any of the other Ucardia Services for the benefit of anyone other than yourself except in accordance with these Terms, including selling, reselling or distributing, in whole or in part, the CCS, the App, the CCS Platform or using the CCS, the App, the CCS Platform as part of a service bureau or outsourcing offering;
10.3 Provide any services, directly or indirectly, that are similar to, or based on, the CCS, the App, the CCS Platform or any of the other Ucardia Services;
10.4 Copy, disclose, or distribute any data or other information available through the CCS, the App, the CCS Platform or any of the other Ucardia Services and/or information, in any medium, including without limitation on the Site, by any automated or non-automated “scraping;”
10.5 Interfere with, circumvent or disable any security or other technological features or measures of any of the Ucardia Services or attempt to gain unauthorized access to any of the Ucardia Services or its related systems or networks;
10.6 Use bots or other automated methods to: access the CCS, the App, the CCS Platform and/or any of the other Ucardia Services, download any information, send or redirect messages or perform any other activities through any of the Ucardia Services;
10.7 Take any action that Ucardia determines, in its sole discretion, imposes or may impose, an unreasonable or disproportionately large load on its infrastructure;
10.8 Upload invalid data, viruses, worms or other software agents through the CCS Services, the App, the CCS Platform and/or any of the other Ucardia Services;
10.10 Impersonate any person or entity, use a fictitious name, or misrepresent your affiliation with a person or entity;
10.11 Use the CCS, the App, the CCS Platform or any of the other Ucardia Services for any unlawful or inappropriate activities, such as transmission of deceptive messages, or harassment; or
10.12 Use the Ucardia Services for any commercial solicitation purposes.
11. Mobile and Data Services.
You are responsible for any mobile and data charges that you may incur for accessing and using the CCS, the App, the CCS Platform or any of the other Ucardia Services. If you’re unsure what those charges may be, you should ask your service provider before using any of the Ucardia Services.
12. Termination; Terms of Service Violations.
12.1 Ucardia. You agree that Ucardia in its sole discretion, for any or no reason, and without penalty, may terminate your access and use of the CCS, the App, the CCS Platform, the Exercise Videos, the Equipment or any of the other Ucardia Services, the License or your account and remove and discard all or any part of your account, user profile, at any time. Ucardia may also in its sole discretion and at any time prohibit you from accessing and using the CCS, the App, the CCS Platform or the Exercise Videos or discontinue providing access to the CCS, the App, the CCS Platform, the Exercise Videos or any of the other Ucardia Services, or any part thereof, with or without notice. You agree that any termination of your ability to access or use the CCS, the App, the CCS Platform, the Exercise Videos or any of the other Ucardia Services or any account you may have may be effected without prior notice, and you agree that Ucardia will not be liable to you or any third party for any such termination. Ucardia reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing Ucardia to disclose the identity of anyone that is believed to violate these Terms. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies that Ucardia may have at law or in equity. As provided herein, Ucardia does not permit copyright infringing activities on the CCS, the App, the CCS Platform, the Site or any of the other Ucardia Services, and Ucardia shall be permitted to terminate access to the CCS, the App, the CCS Platform or any of the other Ucardia Services or the License. BY ACCEPTING THESE TERMS, YOU WAIVE AND SHALL HOLD UCARDIA HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY UCARDIA DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER UCARDIA OR LAW ENFORCEMENT AUTHORITIES.
12.2 You. Your only remedy with respect to any dissatisfaction with (i) the CCS, the App, the CCS Platform, the Exercise Videos, the Equipment or any of the other Ucardia Services, (ii) any term of these Terms or (iii) any policy or practice of Ucardia in providing the CCS, the App, the CCS Platform, the Exercise Videos or the Equipment or operating the CR Services, the App, the CR Platform, the Exercise Videos or the other Ucardia Services is to terminate your use of the CCS, the App, the CCS Platform, the Exercise Videos, the Equipment and any of the other Ucardia Services. You may terminate your use of the CCS, the App, the CCS Platform and the other Ucardia Services at any time.
12.3 Return of Equipment. Upon the termination of your access and use of the CCS, the App and the CCS Platform for any reason, you shall return the Equipment in the same shape as provided to you (normal wear and tear excepted. If you do not return the Equipment within thirty (30) days of such termination, then Ucardia may charge you or your Employer the cost of equipment.
13. Ownership; Feedback
Ucardia shall own all right, title and interest in the CCS, the App, the CCS Platform, the Site, the Exercise Videos, the Equipment and the other Ucardia Services. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Ucardia Services provided by Ucardia (the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained on the CCS, the App, the CCS Platform, the Exercise Videos, the Equipment or any of the other Ucardia Services are the property of Ucardia or its subsidiaries or affiliated companies, and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to Ucardia or its affiliates and/or third-party licensors. Except as expressly authorized by Ucardia, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. Ucardia reserves all rights not expressly granted in these Terms.
You grant to Ucardia a royalty-free, worldwide, irrevocable, perpetual license to use, publish, edit, translate, distribute, display and incorporate any ratings, comments, suggestions, feedback, improvement requests or other recommendations you provide relating to the CCS, the App, the CCS Platform, the Exercise Videos, the Equipment or any of the other Ucardia Services without restriction (“Feedback”). You should not submit any Feedback to us that you do not wish to license to us as stated above. We have no obligation (a) to maintain any Feedback in confidence; (b) to pay any compensation for any Feedback; or (c) to respond to any Feedback. You grant us the right to use the name that you submit in connection with any Feedback
You agree to indemnify, save, and hold Ucardia its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any third-party claims, losses, damages, or liabilities, including legal fees and expenses, arising out of your use or misuse of the CCS, the App, the CCS Platform, the Site, the Exercise Videos, the Equipment or any of the other Ucardia Services, any User Data, any violation by you of these Terms, or any breach of the representations, warranties, and covenants made by you herein. Ucardia reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Ucardia and you agree to cooperate with Ucardia’s defense of these claims. Ucardia will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
15. No Warranties; Disclaimers.
15.1 NO WARRANTIES.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, UCARDIA AND ITS AFFILIATES, CONTRACTORS, DIRECTORS, OFFICERS, EMPLOYEES, RESELLERS, AGENTS, THIRD-PARTY PARTNERS, LICENSORS AND SUPPLIERS (COLLECTIVELY, THE “UCARDIA PARTIES”) DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED WITH RESPECT TO THE CCS, THE APP, THE CCS PLATFORM, THE SITE, THE EXERCISE VIDEOS, THE EQUIPMENT, THE OTHER UCARDIA SERVICES AND THE USER DATA, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, UCARDIA PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE CCS, THE APP, THE CCS PLATFORM, THE SITE, THE EXERCISE VIDEOS, THE EQUIPMENT OR THE OTHER UCARDIA SERVICES OR THE USER DATA, WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE UCARDIA PARTIES OR THROUGH THE CCS, THE APP, THE CCS PLATFORM, THE SITE, THE EXERCISE VIDEOS, THE EQUIPMENT OR THE OTHER UCARDIA SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
15.2 “As Is” and “As AVAILABLE” AND “WITH ALL FAULTS”.
YOU EXPRESSLY AGREE THAT THE CCS, THE APP, THE CCS PLATFORM, THE SITE, THE EXERCISE VIDEOS, THE EQUIPMENT OR ANY OF THE OTHER UCARDIA SERVICES, THE USER DATA, ANY DATA, ASSESSMENTS, RESULTS, INFORMATION, THIRD-PARTY SOFTWARE, CONTENT, THIRD-PARTY SITE, ADVERTISEMENTS, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE CCS, THE APP, THE CCS PLATFORM OR ANY OF THE OTHER UCARDIA SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
15.3 Operations and Content.
THE UCARDIA PARTIES DO NOT WARRANT THAT THE USER DATA, ANY OTHER DATA, RESULTS, CONTENT, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE CCS SERVICES, THE APP, THE CCS PLATFORM OR ANY OF THE OTHER UCARDIA SERVICES, OR ANY THIRD-PARTY SITE WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
EXCEPT AS SPECIFICALLY PROVIDED IN WRITING BY UCARDIA, THE UCARDIA PARTIES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE CCS, THE APP, THE CCS PLATFORM, THE EXERCISE VIDEOS, THE EQUIPMENT AND THE OTHER UCARDIA SERVICES OR THE USER DATA OR ANY THIRD-PARTY SITE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
15.5 Harm to Your Computer.
YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN CONTENT, INFORMATION, MATERIALS, ASSESSMENTS, RESULTS OR DATA THROUGH THE CCS, THE APP, THE CCS PLATFORM OR ANY OF THE OTHER UCARDIA SERVICES OR ANY THIRD-PARTY SITE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
16. LIMITATION OF LIABILITY AND DAMAGE.
16.1 Limitation of Liability.
UNDER NO CIRCUMSTANCES, INCLUDING, NEGLIGENCE, WILL THE UCARDIA PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE CCS, THE APP, THE CCS PLATFORM, THE SITE, THE EXERCISE VIDEOS, THE EQUIPMENT OR ANY OF THE OTHER UCARDIA SERVICES, OR ANY USER DATA OR ANY THIRD-PARTY SITE, EVEN IF UCARDIA OR A UCARDIA AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, UCARDIA’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
16.2 Limitation of Damages.
IN NO EVENT WILL THE UCARDIA PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO YOUR ACCESS AND USE OF THE CCS, THE APP, THE CCS PLATFORM, THE SITE, THE EXERCISE VIDEOS, THE EQUIPMENT OR ANY OF THE OTHER UCARDIA SERVICES, OR ANY USER DATA OR THESE TERMS, OR YOUR INTERACTION WITH OTHER USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE GREATER OF (A) $100 AND (B) AN AMOUNT EQUAL TO THE FEES PAID BY YOU OR YOUR EMPLOYER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.
16.3 Release for Disputes between Users.
If you have a dispute with any other Users or other third parties, you hereby release Ucardia and the other Ucardia Parties from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
16.4 Third-party Site.
THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD-PARTY SITE OR OTHERWISE BY THIRD PARTIES OTHER THAN UCARDIA AND RECEIVED THROUGH OR ADVERTISED ON ANY OF THE UCARDIA SERVICES OR RECEIVED THROUGH ANY THIRD-PARTY SITE.
16.5 Basis of the Bargain.
YOU ACKNOWLEDGE AND AGREE THAT UCARDIA HAS OFFERED THE CCS, THE APP, THE CCS PLATFORM, THE SITE, THE EXERCISE VIDEOS, THE EQUIPMENT AND THE OTHER UCARDIA SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND UCARDIA, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND UCARDIA. UCARDIA WOULD NOT BE ABLE TO PROVIDE THE CCS, THE APP, THE CCS PLATFORM, THE EXERCISE VIDEOS, THE EQUIPMENT OR ANY OF THE OTHER UCARDIA SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
16.6 Limitations by Applicable Law.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.
17. Export Controls.
You agree not to import, export, re-export, or transfer, directly or indirectly, any part of the CCS, the App, the CCS Platform or other Ucardia Services or any underlying intellectual property, information or technology except in full compliance with all United States, foreign and other applicable export control laws and regulations.
Ucardia may provide you with notices, including those regarding changes to these Terms, by email, regular mail or postings on any of the Ucardia Services. Notice will be deemed given twenty-four hours after the email is sent, unless Ucardia is notified that the email address is invalid. Alternatively, Ucardia may give you legal notice by mail to a postal address, if provided by you through any of the Ucardia Services. In such case, notice will be deemed given three (3) days after the date of mailing. Notices posted on any of the Ucardia Services are deemed given thirty (30) days following the initial posting.
The failure of Ucardia to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by Ucardia.
18.3 Dispute Resolution.
If a dispute arises between you and Ucardia, the goal is to provide you with a neutral and cost-effective method of resolving the dispute quickly. Accordingly, you and Ucardia agree that any dispute, claim or controversy at law or equity that arises out of these Terms, the CCS, the App, the CCS Platform, the Site, the Exercise Videos, the Equipment or any of the other Ucardia Services (a “Dispute”) will be resolved in accordance with this Section 18.3 or as Ucardia and you otherwise agree in writing. Before resorting to these dispute methods, Ucardia strongly encourages you to first contact Ucardia directly to seek a resolution.
(a) Choice of Law. These Terms shall be governed in all respects by the laws of the State of Texas, without regard to its conflict of law provisions. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY DISPUTE OR OTHERWISE IN CONNECTION WITH THESE TERMS OR ANY OF THE UCARDIA SERVICES.
(b) Arbitration and Class Action Waiver.
PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS.
(i) ARBITRATION. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND UCARDIA (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) IN CONNECTION WITH THESE TERMS OR ANY OF THE UCARDIA SERVICES, INCLUDING WITHOUT LIMITATION YOUR RIGHTS OF PRIVACY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S RULES FOR ARBITRATION AND YOU AND UCARDIA HEREBY EXPRESSLY WAIVE TRIAL BY JURY. ANY ARBITRATION SHALL BE IN ENGLISH AND THE PLACE OF ARBITRATION SHALL BE HOUSTON, TEXAS. YOUR ARBITRATION FEES AND YOUR SHARE OF ARBITRATOR COMPENSATION SHALL BE GOVERNED BY SUCH RULES. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND UCARDIA WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. YOU MAY BRING DISPUTES ONLY ON YOUR OWN BEHALF.
Neither you nor Ucardia will participate in a class action or class-wide arbitration for any disputes covered by these Terms to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST UCARDIA INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Ucardia is a party to the proceeding.
This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.
(ii) Judicial Forum for Disputes. In the event that the agreement to arbitrate under Section 18.3(b) is found not to apply to you or your claim, you and Ucardia agree that any judicial proceeding (other than small claims actions) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the federal or state courts covering Houston, TX. Both you and Ucardia irrevocably consent to venue and personal jurisdiction there. Notwithstanding the foregoing, Ucardia may bring a claim for equitable relief in any court with proper jurisdiction.
(iii) Survival. This arbitration agreement will survive the termination of your use of the CR Services, the App, the CR Platform or any of the other Ucardia Services or your relationship with Ucardia.
(c) 30 Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration provisions set forth in this Section 18.3 above by sending written notice of your decision to opt-out to info@Ucardia.com. The notice must be sent to Ucardia within thirty (30) days of your use of any of the Ucardia Services or agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.
(d) Improperly Filed Claims. All claims you bring against Ucardia must be resolved in accordance with this Section 18.3. All claims filed or brought contrary to this Section 18.3 shall be considered improperly filed. Should you file a claim contrary to this Section 18.3, Ucardia may recover attorneys’ fees and costs up to $15,000, provided that Ucardia has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
If any provision of these Terms (including any Policies) is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
18.5 Relationship of the Parties.
The parties agree that nothing in these Terms shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the parties, or as authorizing either party to act as the agent of the other. You are and will remain an independent contractor in your relationship to Ucardia. Nothing in these Terms shall create any obligation between either party and a third party.
These Terms and related Policies, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Ucardia without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
Upon termination of these Terms, your use of the Site, any of the other Ucardia Services or your relationship with Ucardia any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 2 and 9 – 18.
The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
18.9 Entire Agreement.
18.10 No Agency.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.
18.11 Geographic Restrictions.
Ucardia is based in the state of Texas in the United States. Ucardia makes no claims that accessing or using or that any of the Ucardia Services or any of the content is accessible or appropriate outside of the United States. Accessing or using the CCS, the App, the CCS Platform, the Site, the Exercise Videos or any of the other Ucardia Services may not be legal by certain persons or in certain countries. If you access any of these Ucardia Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Ucardia with respect thereto.
18.12 Electronic Communications.
The communications between you and Ucardia use electronic means, whether you visit the Site or the other Ucardia Services or send Ucardia e-mails, or whether Ucardia posts notices on the Site or the other Ucardia Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Ucardia in an electronic form; and (b) agree that all terms, conditions, agreements, notices, disclosures, and other communications that Ucardia provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. The foregoing does not affect your statutory rights.
The CCS, the App, the CCS Platform, the Site, the Exercise Videos and the Equipment and the other Ucardia Services are offered by Ucardia, Inc., 3713 Meredith St, Austin, TX 78703 and email: email@example.com.
If you are a California resident, you may have this same information emailed to you by sending a letter to Ucardia, Inc., 3713 Meredith St, Austin, TX 78703 with your email address and a request for this information.
California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.