Smart Human Dynamics, Inc. ("SHD") designs products and services that encourage people to lead healthier lives. These products and services include the Pregnancy Coach System ("PCS"), MiniProner, our online and/or mobile services, our websites, including pregnancycoach.com, miniproner.com, smarthumandynamics.com, the software embedded in SHD devices, the sensors that monitor various health parameters, and connect to a mobile device, the hosted SHD software, the SHD applications, and other SHD services (collectively, the "Service"). By accessing or using the Service, or by purchasing something from us, you acknowledge that you have read, understood, and agree to be bound by this Terms of Service Agreement ("Agreement", "Terms of Service", "Terms") and to the collection and use of your information as set forth in SHD Privacy Policy, whether or not you are a registered user of our Service. SHD reserves the right to modify these terms and will provide notice of material changes to active subscribers of the Service as described below. This Agreement applies to all visitors, users, and others who access the Service ("Users"). Throughout the site, the terms "we", "us" and "our" refer to SHD.
If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND IT IN ENTIRETY. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AS WELL AS A CLASS ACTION AND JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
THE USE OF THE SERVICE IS NOT A SUBSTITUTE FOR PROFESSIONAL HEALTHCARE OR HEALTHCARE ADVICE.
1) ONLINE STORE TERMS
We reserve the right to refuse service to anyone for any reason at any time. You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
Our store is hosted on Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our products and services to you.
2) CHANGES
You can review the most current version of the Terms of Service at www.pregnancycoach.com/about-us/terms . Any new features or tools which are added by us shall also be subject to the Terms of Service. We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.
3) ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
We are not responsible if information made available as part of the Service is not accurate, complete or current. The material on the websites of the Service is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on our websites is at your own risk. Our websites may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of our websites at any time, but we have no obligation to update any information on our websites. You agree that it is your responsibility to monitor changes to our websites.
4) MODIFICATIONS TO THE SERVICE AND PRICES
Prices for our products are subject to change without notice. We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time. We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.
5) PRODUCTS OR SERVICES
Certain products or services may be available exclusively online through our websites. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy. We have made every effort to display as accurately as possible the colors and images of our products that appear at the online store. We cannot guarantee that your computer monitor's display of any color will be accurate. We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited. We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.
6) ACCURACY OF BILLING AND ACCOUNT INFORMATION
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
For more detail, please review our Returns Policy.
7) OPTIONAL TOOLS
We may provide you with access to third-party content and tools over which we neither monitor nor have any control nor input. You acknowledge and agree that we provide access to such content and tools "as is" and "as available" without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party content or tools. Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s). We may also, in the future, offer new services and/or features through the website (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.
8) THIRD-PARTY LINKS
Certain content, products and services available via our Service may include materials from third-parties. Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties. We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
9) USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS
If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, 'comments'), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments. We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party's intellectual property or these Terms of Service. You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.
10) ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on our websites or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order). We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.
11) USE OF SERVICE
The Service allows users to monitor their body position and other sleep parameters.
a) Eligibility
This is a contract between you and SHD. You must read and agree to these terms before using the Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with SHD, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 18 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by SHD.
b) Consult With Your Doctor.
The Service is not a substitute for the advice of a trained medical professional. If you experience a serious medical issue, stop using the Service and consult with a medical professional. If you engage in any health-related program you receive or learn about through the Service you agree that you do so at your own risk and are voluntarily participating in these activities. We are not responsible for any health problems that may result from services, consultations, products, or events you learn about through the Service.
Prolonged contact with wearable devices may contribute to skin irritation in some users. To reduce irritation, ensure the wearable device is kept clean and dry. If you notice any skin irritation, remove your device. If symptoms persist longer than 2-3 days after removing the device, consult your doctor.
The Service is not a substitute for the advice of a trained medical professional. Always consult with a trained medical professional if you have any questions or concerns about your health.
12) SERVICE LICENSE & USE
a) License Grant
SHD grants you a revocable, non-exclusive, non-transferable, limited right to install and use the Service on a Mobile Device owned and controlled by you, and to access and use the Service on such Mobile Device strictly in accordance with the terms and conditions of this Agreement, the usage rules, and any service agreement associated with your Mobile Device (collectively "Related Agreements").
b) Restrictions on Use.
You shall use the Service strictly in accordance with the terms of the Related Agreements and shall not: (i) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Service; (ii) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Service; (iii) violate any applicable laws, rules or regulations in connection with your access or use of the Service; (iv) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of SHD or its affiliates, partners, suppliers or the licensors of the Service; (v) use the Service for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (vi) distribute the Service to multiple Mobile Devices; (vii) make the Service available over a network or other environment permitting access or use by multiple Mobile Devices or users at the same time; (viii) use the Service for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by SHD; (iv) use the Service to send automated queries to any website or to send any unsolicited commercial e-mail; or (v) use any proprietary information or interfaces of SHD or other intellectual property of SHD in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Service.
13) ACCOUNTS, EQUIPMENT & RULES
a) Accounts.
Your SHD account gives you access to existing as well as new services and functionality that we may establish at our sole discretion. You are solely responsible for the activity that occurs on your account. You must notify SHD immediately of any unauthorized use of your account or breach of security. SHD is not liable for any losses caused by any unauthorized use of your account.
By providing SHD your email address you consent to our using the email address to send you Service-related notices, including any notices required by law. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out by clicking the opt out link within the message or by sending an email with an opt out request to info@pregnancycoach.com. Opting out may prevent you from receiving email messages regarding updates or other offers.
b) Necessary Equipment.
In order to fully use this Service, you will require a PCS sensor device, PCS magnetic clothes clip, and a mobile phone with internet access with the PCS app installed. The maintenance and security of this equipment may influence the performance of the Service.
c) Rules.
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 prohibited activities: (i) copying, distributing, or disclosing any part of the Service; (ii) impersonating another individual or attempting to hide your identity; (iii) taking any action that imposes a disproportionately large load on our infrastructure; (iv) uploading invalid data, viruses, worms, or other software agents through the Service; (v) acquiring personally identifiable information, including account names and emails, from the Service; (vi) using an automated system to access the Service in a manner that sends more request messages to SHD servers than a human can reasonably produce by using a conventional on-line web browser (except that SHD grants public search engines permission to use spiders or other tools to copy public materials from SHD for the sole purpose of creating publicly available searchable indices of the materials); (vii) attempting to interfere with or intercept any transmissions to or from the servers running the Service; or (xiii) bypassing any measures we may use to restrict access to the Service.
Without prior notice, we may change or stop providing the Service for any or no reason. In the event Service is suspended, you continue to be bound by this Agreement.
The provided Service is not a replacement for a visit, call, or advice of your physician or health care provider. Never disregard medical advice or delay in seeking it because of information provided by the Service. For any potential medical emergencies, call your physician or emergency health service immediately. If you experience pain or discomfort, stop the activity causing the discomfort or pain.
We are not responsible for any health problems that may result from recommendations from the Service. You agree to use the Service at your own risk.
14) INTELLECTUAL PROPERTY RIGHTS
For the purposes of this Agreement, "Intellectual Property Rights" means all patent rights, copyright rights, moral rights, rights of publicity, mask work rights, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights that may exist now or come into existence hereafter, under the laws of any jurisdiction.
Other than the content you own, under these Terms, SHD and/or its licensors own all the intellectual property rights and materials contained in this Service. You are granted limited license only for purposes of viewing the material contained in this Service.
a) Rights to Service.
You acknowledge and agree that the Service and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of SHD. Furthermore, you acknowledge and agree that the source and object code of the Service and the format, directories, queries, algorithms, structure and organization of the Service are the intellectual property and proprietary and confidential information of SHD and its affiliates, licensors and suppliers. Except as expressly stated in this License, you are not granted any intellectual property rights in or to the Service by implication, estoppel or other legal theory, and all rights in and to the Service not expressly granted in this License are hereby reserved and retained by SHD.
b) Third Party Software.
The Service may utilize or include third party software that is subject to open source and third party license terms ("Third Party Software"). You acknowledge and agree that your right to use such Third Party Software as part of the Service is subject to and governed by the terms and conditions of the open source or third party license applicable to such Third Party Software, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein. In the event of a conflict between the terms of this License and the terms of such open source or third party licenses, the terms of the open source or third party licenses shall control with regard to your use of the relevant Third Party Software. In no event, shall the Service or components thereof be deemed to be "open source" or "publicly available" software.
c) SHD's Marks.
You are not authorized to use the SHD trademarks in any advertising, publicity or in any other commercial manner without the prior written consent of SHD, which may be withheld for any or no reason.
d) Infringement Acknowledgement.
You and SHD acknowledge and agree that, in the event of a third party claim that the Service or your possession or use of the Service infringes any third party's intellectual property rights, you (and not SHD) will be responsible for the investigation, defense, settlement and discharge of any such claim of intellectual property infringement. You will, however, promptly notify SHD in writing of such a claim.
e) Restriction on Transfer.
You may not rent, lease, lend, sublicense or transfer the Service, this License or any of the rights granted hereunder. Any attempted transfer in contravention of this provision shall be null and void and of no force or effect.
15) PRIVACY
You understand that by using the Service you agree to the use and disclosure of your personally identifiable information and aggregate data as set forth in our Privacy Policy, and to have your personally identifiable information collected, used, and processed in the United States. You represent that you shall comply with the terms and conditions of the SHD Privacy Policy, which sets forth and describes the practices of SHD with respect to the collection, use and disclosure of Information in connection with your use of the Service. SHD reserves the right to change the provisions of its Privacy Policy at any time and from time to time at its sole discretion. SHD will post any changes to its Privacy Policy at its website at www.pregnancycoach.com. Your use of the Service following the posting of such changes to the Privacy Policy will constitute your acceptance of any such changes.
16) SECURITY
SHD cares about the security of your personal information; however, we cannot guarantee that unauthorized third parties will never be able to defeat our data security systems or use your personal information for unauthorized purposes. You acknowledge that you provide your personal information at your own risk.
17) TERM AND TERMINATION.
Your license to access and use the Service granted under this Agreement remains in effect until terminated by you or us. SHD may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate the License and the rights afforded to you hereunder with or without prior notice. Furthermore, if you fail to comply with any terms and conditions of this Agreement, then this License and any rights afforded to you hereunder shall terminate automatically, without any notice or other action by SHD. Upon the termination of this License, you shall cease all use of the Service and uninstall the Service.
18) INDEMNIFICATION
You shall indemnify, defend and hold harmless SHD and its affiliates, partners, suppliers and licensors, and each of their respective officers, directors, agents and employees (the "Indemnified Parties") from and against any claim, proceeding, loss, damage, fine, penalty, interest and expense (including, without limitation, fees for attorneys and other professional advisors) arising out of or in connection with the following: (i) your access to or use of the PCS or Third Party Content and Services; (ii) your breach of this License; (iii) your violation of law; (iv) your negligence or willful misconduct; or (v) your violation of the rights of a third party, including the infringement by you of any intellectual property or misappropriation of any proprietary right or trade secret of any person or entity. These obligations will survive any termination of the License.
19) DISCLAIMER ON WARRANTIES
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE SERVICE AND ANY THIRD PARTY CONTENT AND SERVICES ACCESSED THEREBY IS AT YOUR SOLE RISK AND DISCRETION. SHD AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE SERVICE AND THIRD PARTY CONTENT AND SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, SHD AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE SERVICE OR THIRD PARTY CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE SERVICE OR THIRD PARTY CONTENT AND SERVICES WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE OR ERROR-FREE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE SERVICE WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN THE SERVICE OR THIRD PARTY CONTENT AND SERVICES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SHD OR FROM THE SERVICE SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY. FURTHERMORE, YOU ACKNOWLEDGE THAT SHD HAS NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN THE SERVICE.
20) LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL SHD OR ITS AFFILIATES, PARTNERS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE AND ANY THIRD PARTY CONTENT AND SERVICES, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SHD WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SHD'S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
21) GOVERNING LAW / ARBITRATION / JURY WAIVER
a) Governing Law.
This Agreement shall be deemed to take place in the State of California and shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law principles. Any disputes arising from this Agreement shall be adjudicated in the courts of the City of San Francisco, California. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
b) Arbitration.
Should any dispute between you and SHD occur, you agree to first contact us and attempt to resolve the dispute with us informally. In the event that SHD is not able to resolve the dispute after sixty (60) days, we each agree to resolve any claim, dispute, or controversy by binding arbitration by JAMS (www.jamsadr.com), under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein.
c) Class Action & Jury Trial Waiver.
ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR COMMERCIAL, PERSONAL, OR OTHER PURPOSES. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE BOTH AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE INDIVIDUAL'S CLAIMS. BY ENTERING INTO THIS AGREEMENT, YOU AND SHD ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
22) GENERAL
a) Assignment.
You shall not assign this License or any rights or obligations herein without the prior written consent of SHD and any attempted assignment in contravention of this provision shall be null and void and of no force or effect.
b) Entire Agreement / Severability.
If any provision of this License is held to be invalid or unenforceable with respect to a party, the remainder of this License, or the application of such provision to persons other than those to whom it is held invalid or unenforceable shall not be affected and each remaining provision of this License shall be valid and enforceable to the fullest extent permitted by law.
c) No Waiver.
Except as provided herein, the failure to exercise a right or require performance of an obligation under this License shall not effect a party's ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute waiver of any subsequent breach.
d) Export Control.
You may not use or otherwise export or re-export the Service except as authorized by United States law and the laws of the jurisdiction(s) in which the Service was obtained. You represent and warrant that you are not located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, or listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. You also agree that you will not use the Service for any purposes prohibited by United States law.
e) Headings.
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.
f) Contact.
The Service is operated and provided by Smart Human Dynamics, Inc. If you have any questions about this Agreement, please email us at info@smarthumandynamics.com. Mail can be sent to Smart Human Dynamics, Attn: Carole Bellis, 1080 Marsh Rd, Menlo Park, CA 94025.
