YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
Effective date: May 27, 2022
NOTICE: Please read these Terms carefully. They cover important information about Services provided to you and any charges, taxes, and fees we bill you. These Terms include information about future changes to these Terms, automatic renewals, limitations of liability, a class action waiver, and resolution of disputes by arbitration instead of in court.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
What is Hero?
Hero provides a subscription-based in-home medication management service which includes the Dispenser, the App, and other associated services. The Dispenser and App assist you and your Caregivers (as defined below) with medication management by sorting and dispensing medicines and providing reminders to take and/or fill medicines, whether or not they are loaded in the Dispenser. The App may also include additional service offerings from time to time at the discretion of Hero. Your Caregiver will have access to the medications, schedule and adherence data, as well as other health data provided to Hero. You can share this data with your physician as well. Hero does not provide any medical advice or any medical services. The Services are not a replacement or substitute for the guidance of healthcare professionals. The Services are not intended to be, and must not be taken to be, the practice of medicine, nursing, pharmacy or other healthcare services or advice by Hero.
You understand and agree that the health information and other Content appearing on the Services is for informational purposes only, you should not rely upon any of the Content in making decisions that affect your health or safety. IF YOU RELY ON ANY CONTENT FOUND ON THE SERVICES, YOU DO SO SOLELY AT YOUR OWN RISK. The Services are not meant to diagnose or treat any conditions, and the information provided through the Services is not intended to advocate the use of one treatment or drug over another – only your medical professional can determine the right course of treatment for you and determine what is safe, appropriate and effective based on your needs. We encourage you to independently confirm any Content relevant to you with other sources, including a primary care physician or any other healthcare professional, relevant medical associations and your state medical boards. You should see your healthcare provider for any medical condition and consult them about any change in your condition. Consult your physician before taking any drug or changing or stopping any course of treatment.
DO NOT USE THE SERVICES FOR EMERGENCY MEDICAL NEEDS. DO NOT USE THE DISPENSER OR THE SERVICES TO DISPENSE MEDICATIONS NECESSARY TO TREAT A LIFE-THREATENING EMERGENCY AS YOUR ACCESS TO MEDICATIONS MAY BE DELAYED BY TECHNICAL AND MECHANICAL LIMITATIONS OF THE SERVICES. IF YOU EXPERIENCE A MEDICAL EMERGENCY, IMMEDIATELY CALL A HEALTHCARE PROFESSIONAL AND 911.
You may NOT use the Services in connection with acute, life-threatening events or conditions. You may only use the Services in accordance with these Terms, and in the manner described by the instructions made available to you, including any limitations described by the instructions and any other safety labeling, inserts or other publications.
The Dispenser may NOT be used by a recipient of medication who is incapable of verifying the accuracy of each dispensed dose (such as those suffering from dementia or other cognitive or physical impairments) unless pill dispense accuracy is verified, in each instance, by qualified person(s) trusted by the medication recipient, i.e. a caregiver, a healthcare aide, and/or a healthcare professional.
While the Dispenser is capable of successfully and accurately dispensing most whole pills loaded into the Dispenser and the App is designed to provide timely medication reminders and medication management / monitoring, on most occasions, the Services may not be used with medications that have high dosage sensitivity, that have a narrow therapeutic window, that are used to treat acute conditions or that are used to treat life-threatening events. Hero cannot guarantee the accuracy of medication dispenses from the Dispenser or reminders from the App due to the potential for human error and/or mechanical and software limitations or failures. You are solely responsible for the uninterrupted supply of electricity and internet connectivity necessary for you to operate and make use of the Services as well as your hardware and the environmental conditions necessary for the Dispenser to function. The Dispenser will not function without 120v A/C electricity, it does not contain an internal battery.
When using the Dispenser, you (or a trusted, qualified person) must verify that the types and number of pills dispensed accurately match the prescribed dosage before you ingest the contents of the pill cup. Keep track of pills inside the Dispenser (e.g., by size, shape, color, imprint, or form) to help ensure that dispensed doses match prescribed doses. If you cannot visually differentiate between the different types of pills you intend to store in the Dispenser, do not add those medications to the Dispenser. Store the original prescriptions and pill bottles in a safe, accessible place for reference after loading appropriate medications into the Dispenser, and leave one or more pills in their original container to help you identify each pill, and in case you ever experience a mechanical or software failure with the Dispenser. Softgels, half pills, gummies, liquid medications and medications that require refrigeration should not be stored in the Dispenser. The Dispenser has a discrete lifespan that depends on various factors, including but not limited to the type and amount of pills used, the number of dispenses, and the environmental conditions in which the Dispenser is operated. As the Dispenser nears the end of its useful life, when a Dispenser requires maintenance, or, in certain other circumstances, you may experience unsuccessful dispenses. Unsuccessful dispenses while rare, may occur. In the event that the Dispenser is unable to dispense a full or partial dose, the Dispenser will typically, but not always, notify you (and your Caregiver, if applicable) of the unsuccessful dispense, and notify you of a potential resolution which will depend on the situation (for example: offer to help retrieve your scheduled dose manually, contact Hero, or other). If you experience repeated unsuccessful dispenses, you should contact our 24/7 Live Support at firstname.lastname@example.org or by phone at 855-855-9962 for further instructions. It is possible, though unlikely, that the Dispenser may fail to notify you of an unsuccessful dispense, that pills may stick together resulting in the dispensing of extra pills, and that pills may be deposited into and dispensed from other pill reservoirs resulting in the dispensing of incorrect dosages, thus, it is imperative that you verify each dispense.
If you are unable or unwilling to utilize or interact with this dispense method, or if you believe that doing so would cause you to take an incorrect dose of medication, you may not use the Dispenser.
You must store the Dispenser and your medications in a safe place. If children or other individuals who may be harmed by gaining unsupervised access to the medications are present, the Dispenser should be installed beyond their reach with passcode protection enabled for all medication dispenses. The Dispenser is not intended to be a hardened solution for medication security and should not be used in an environment where there is a risk of malicious interference or tampering with the Dispenser (or the medication contained within the Dispenser), theft, or where there is a risk of harm due to the accessibility of the medication contained within the Dispenser. The Dispenser should be stored in a room that is no warmer than 77º F (25º C) and with humidity no higher than 20%. You should not use the Dispenser in a location that is at an altitude of more than 8,000 feet above sea level. You are solely liable for any unauthorized access to the Dispenser and your medications. Hero will not be liable for any injury resulting or arising from, or related to, the use of the Services (even if unauthorized) whatsoever.
Your use of the Services does not create a doctor-patient or provider-patient relationship.
YOUR USE OF THE SERVICES IS NOT A SUBSTITUTE FOR THE SERVICES OF A QUALIFIED HEALTHCARE PROFESSIONAL. NO DOCTOR-PATIENT OR PROVIDER-PATIENT RELATIONSHIP IS CREATED BETWEEN YOU AND HERO WHEN YOU USE THE SERVICES OR CONTENT. THIS IS TRUE WHETHER SUCH CONTENT IS PROVIDED BY OR THROUGH THE USE OF THE SERVICES OR THROUGH ANY OTHER COMMUNICATIONS TO OR FROM HERO.
You acknowledge that although Refill and Delivery and Personal Pharmacist, which are made available through the Services, are provided, in part, by healthcare professionals, the provision of the Services does not create a doctor-patient or provider-patient relationship between you and Hero. To the extent that Refill and Delivery and Personal Pharmacist result in your receipt of licensed pharmacy and other clinical services, such licensed clinical services are provided to you through a direct relationship between you and the Pharmacy Partner and/or the Personal Pharmacist Pharmacy, as applicable. The Services are provided to assist you in managing in-home treatment, and not for any other medical or health purposes. Hero does not guarantee that you will receive all medications through Refill and Delivery, and is not recommending or endorsing any medication or pharmacy services provider by providing Refill and Delivery and/or Personal Pharmacist. Hero and/or the Services are also not an insurance product. Hero operates subject to state regulation and may not be available in certain states.
You agree to use the Services only for purposes permitted by these Terms, and only to the extent permitted by any applicable law, regulation, or generally accepted practice in the applicable jurisdiction. The Services, or any feature or part thereof, may not be available in all languages or in all countries and Hero makes no representation that the Services, or any feature or part thereof, are appropriate or available for use in any particular location. The Services offered are intended for purchase and use only in the United States. To the extent you choose to access and use the Services, you do so at your own initiative and are responsible for compliance with any applicable laws.
Will these Terms ever change?
We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we make any material change, we will bring it to your attention by placing a notice on the App, on the https://herohealth.com/ website, by sending you an email, and/or by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us. The only individual authorized to sign such an amendment on behalf of Hero is the CEO of Hero.
What about my privacy?
Our website and the Store are intended for use by individuals who are at least 18 years old. We do not knowingly collect or solicit personally identifiable information from individuals under 18. If you are under 18 years old, please do not attempt to register for the Services or send any personal information about yourself to us. By accessing the website or the Store or purchasing any Services from Hero, you represent that you are at least 18 years of age. In the event that you are purchasing Paid Services or are accessing the services on behalf of someone who is less than 18 years old, you agree that you have the legal capacity to agree to these Terms on behalf of such person and by procuring Paid Services or using the Services on their behalf, you do so agree. A breach or violation of any of the terms will result in an immediate termination of your services and support. If we learn we have collected personal information from an individual under 18 from the website or Store, we will delete that information as quickly as possible. If you believe that an individual under 18 may have provided us personal information, please contact us at email@example.com.
What are the basics of using the Services?
You will be required to sign up for an account, and select a password and username (“User ID”). You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your User ID a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission. We reserve the right to deny your use of any User ID or change your User ID for any reason at any time.
You represent and warrant that you are an individual of legal age to form a binding contract (or if not, that you have received your parent or guardian’s permission to use the Services and that your parent or guardian has been presented with a copy of these Terms and has agreed to these Terms on your behalf and has the legal capacity to do so).
You will only use the Services for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, unless and to the extent you are: (a) acting as a Caregiver, or, (b) to the extent you purchase and pay for the Paid Services in a non-commercial capacity for a personal relation to whom you give full and direct control of such account, or, (c) to the extent you Purchase and Pay for the Paid Services while acting as a legal guardian as to another person, and, in all cases, only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law. In the event that you purchase and pay for Paid Services for the benefit of or use by a third-party, these terms shall apply equally to any person who receives the use of the Services and you agree that you shall present a copy of these Terms to such person who has the capacity to agree to them or that you have the legal capacity to agree to these Terms on behalf of such person and that you do so agree.
You will not share your account or password with anyone, and you must protect the security of your account and your password. You are responsible for any activity associated with your account.
As part of the Services, you agree that Hero may contact you through the App or by telephone, e-mail or SMS message (including text messages), or pre-recorded calls using an automatic telephone dialing system, including for marketing purposes. You may opt out of receiving communications from Hero at any time, either by clicking the “unsubscribe” link at the bottom of an email, or by replying “STOP” to any SMS messages, or by updating your preferences in your account. BY SIGNING UP FOR THE SERVICES, YOU AGREE TO RECEIVE COMMUNICATIONS FROM HERO, AND YOU REPRESENT AND WARRANT THAT EACH PERSON YOU REGISTER FOR THE SERVICES OR FOR WHOM YOU PROVIDE AN E-MAIL ADDRESS OR WIRELESS PHONE NUMBER HAS CONSENTED TO RECEIVE COMMUNICATIONS FROM HERO. You agree to indemnify and hold Hero harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to your breach of the foregoing.
Linking Caregivers to your account:
In connection with your use of the Services you may give a family member, friend, healthcare aide, or other trusted individual (“Caregiver”) access to your Hero account in order that they may support you in your use of the Services. A Caregiver must be at least 18 years old and otherwise competent to contract on their own behalf. A Caregiver’s use of the Services for the benefit of another is likewise covered by these Terms, and a Caregiver’s use of the Services shall constitute an agreement to these Terms to the extent applicable. A Caregiver may be added through a member’s account or the account of a current Caregiver, or may become a Caregiver by completing the initial setup of the Dispenser as a Caregiver. In order for a Caregiver to gain access to your Hero account, the Caregiver must download the App and link to your account or must be the individual who sets up the Dispenser assigned to you and your account. A Caregiver will be able to manage your use of the Services and may be able to view all data about you and your use of the services (based on their permissions). For example, a Caregiver can view and manage which medications are dispensed by the Dispenser and when, view and manage when and if reminders or other notifications are sent, create and manage additional Caregivers without your further consent or action, view adherence data, add and remove medications, setup or request medication refills, and may view other personal information you provide in the course of using the Services or cancel or suspend your Hero account. Any Caregiver must and does agree to use the Services in their respective role in accordance with these Terms, and any references to “you” or “your” shall also include a Caregiver, to the extent applicable. You can revoke a Caregiver’s access at any time through your account settings or by contacting our 24/7 Live Support. Note that revoking a Caregiver’s access means that the Caregiver will no longer be able to view or manage your use of the Services. While you may withdraw access at any time, Hero is not responsible for any information that a Caregiver may retain after you have revoked the Caregiver’s access. Hero will not be responsible for any acts or omissions by a Caregiver (including after you have revoked a Caregiver’s access to your account). We may offer you the ability from time to time to grant a Caregiver the role and permissions of “Admin Caregiver.” An Admin Caregiver has the same informational access and administrative privileges with respect to your Hero account as you, and may take any action that you can take with respect to your Hero account, including but not limited to cancelling Services and terminating your access to your Hero account. We suggest that you only grant Admin Caregiver permissions to a trusted representative.
Your use of the Services is subject to the following additional restrictions:
You represent, warrant, and agree that you will not contribute any Content or User Submission (each of those terms is defined below) or otherwise use the Services or interact with the Services in a manner that:
- Infringes or violates the intellectual property rights or any other rights of anyone else (including Hero);
- Violates any law or regulation, including, without limitation, any applicable export control laws;
- Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
- Jeopardizes the security of your Hero account or anyone else’s (such as allowing someone else to log in to the Services as you);
- Attempts, in any manner, to obtain the password, account, or other security information from any other user;
- Violates the security of any computer network, or cracks any passwords or security encryption codes;
- Runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
- “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
- Copies or stores any significant portion of the Content;
- Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
What are my rights in the Services?
The materials displayed or performed or made available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Hero’s) rights.
You understand that Hero owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services.
The Services may allow you to copy or download certain Content; please remember that just because this functionality exists, doesn’t mean that all the restrictions above don’t apply – they do!
Do I have to grant any licenses to Hero or to other users?
For all User Submissions, you hereby grant Hero a license to translate, modify (for technical purposes, for example making sure your content is viewable on an iPhone as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to operate the Services, as described in more detail below. This is a license only – your ownership in User Submissions is not affected.
If you store a User Submission in your own personal Hero account, in a manner that is not viewable by any other user except you and your Caregiver(s) with administrative permissions (a “Personal User Submission”), you grant Hero the license above, as well as a license to display, perform, and distribute your Personal User Submission for the sole purpose of making that Personal User Submission accessible to you and your Caregiver(s) with administrative permissions, if any, and providing the Services necessary to do so.
If you share a User Submission only in a manner that only certain specified users can view (for example, any Caregivers linked to your account) (a “Limited Audience User Submission”), then you grant Hero the licenses above, as well as a license to display, perform, and distribute your Limited Audience User Submission for the sole purpose of making that Limited Audience User Submission accessible to such other specified users, and providing the Services necessary to do so. Also, you grant such other specified users a license to access that Limited Audience User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.
If you share a User Submission publicly on the Services and/or in a manner such that more than just you or certain specified users can view it, or if you provide us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services (each of the foregoing, a “Public User Submission”), then you grant Hero the licenses above, as well as a license to display, perform, and distribute your Public User Submission for the purpose of making that Public User Submission accessible to all Hero users and providing the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public User Submission in connection with the Services and/or otherwise in connection with Hero’s business. Also, you grant all other users of the Services a license to access that Public User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.
You grant Hero a license to display, perform, and distribute all User Submissions to your affiliated Third-Party Dispenser Provider.
You agree that the licenses you grant are royalty-free, perpetual, sublicensable, irrevocable, and worldwide, provided that when you delete your Hero account, we will stop displaying your User Submissions (other than Public User Submissions, which may remain fully available) to other users (if applicable), but you understand and agree that it may not be possible to completely delete that content from Hero’s records, and that your User Submissions may remain viewable elsewhere to the extent that they were copied or stored by other users.
Finally, you understand and agree that Hero, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
How does Hero treat my Feedback about the Services?
If you send or transmit any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services, or any other communications, comments, questions, or related materials to Hero, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Services, all such Feedback is, and will be treated as, non-confidential and non-proprietary.
You hereby assign all right, title, and interest in, and Hero is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and/or selling, directly or indirectly, Services using such Feedback.
You understand and agree that Hero is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
What if I see something on the Services that infringes my copyright?
You may have heard of the Digital Millennium Copyright Act of 1998 (the “DMCA”), as it relates to online service providers, like Hero, being asked to remove material that allegedly violates someone’s copyright. We respect others’ intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers.
The DMCA provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials posted on the Services infringe your copyright, you (or your agent) may send Hero a “Notification of Claimed Infringement” requesting that the material be removed or access to it blocked. The notice must include the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the works that have been allegedly infringed;
- Identification of the copyrighted work alleged to have been infringed (or if multiple copyrighted works located on the Services are covered by a single notification, a representative list of such works);
- Identification of the specific material alleged to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Hero to locate the material on the Services;
- Your name, address, telephone number, and e-mail address (if available);
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Upon receipt of a proper notice of copyright infringement, we reserve the right to remove or disable access to the infringing material; notify the content provider who is accused of infringement that we have removed or disabled access to the applicable material; and terminate such content provider's access to the Services if he or she is a repeat offender.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Hero a counter-notice.
Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. Notices and counter-notices with respect to the Services should be sent to General Counsel, Hero Health, Inc., ATTN: DMCA Notice, 85 Broad Street, 17th Floor, New York, NY 10004 or firstname.lastname@example.org. Consult your legal advisor and see 17 U.S.C. § 512 before filing a notice or counter-notice as there are penalties for false claims under the DMCA.
Who is responsible for what I see and do on the Services?
Any information or content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such content originated. You access all such information and content at your own risk, and we are not liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all User Submissions you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Services.
Hero has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Services. In addition, Hero will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third-party website or service.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Hero shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site, or between users and any third party, you agree that Hero is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Hero, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do 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.”
Will Hero ever change the Services?
We’re always trying to improve the Services, so they may change over time. We may suspend or discontinue all or any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. Similarly, we reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed any User Submissions in violation of these Terms), in our sole discretion, and without notice.
Do the Services cost anything?
Our Services (including but not limited to the use of Refill and Delivery and use of the App) are subject to payments (the “Paid Services”), which in certain cases may include recurring, automatically renewing payment obligations (as further described in the “Auto-Renewal for Paid Services” section below). We also offer or may offer different subscription plans from time to time. Please see our FAQ and the Limited Warranty, Returns and Cancellations Policy for a description of the current Paid Services (including our different subscription plans), our shipping terms, limited warranty and cancellation and refund policies. Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of these Terms.
Hero Store. We may provide certain products for sale in our Store to individuals. None of the products in our Store are intended for resale or distribution, or for use outside of the United States.
Additional Terms Related to Services and Data Provided by UpToDate, Inc.
UpToDate, Inc. (“UpToDate”) provides certain data and information which is integrated into the Services, and specifically data related to the pharmacopoeia available as a component of the Services, and other information related to medications and interactions available to you (the “Licensed Content”).
In connection with the Licensed Content, you agree and acknowledge that:
UpToDate disclaims any warranty that the Licensed Content will meet your particular requirements or that access to the Licensed Content will be uninterrupted or error-free. In addition, the Licensed Content may not necessarily cover all possible uses, diagnoses, treatment options, directions, precautions, drug interactions, dosage limitations, local practices or adverse effects applicable to a particular drug or treatment or a particular person. Although the Licensed Content covers a wide range of prescription and nonprescription drugs, it does not include all drugs, vaccines, devices and diagnostic agents. Accordingly, and without limiting the foregoing, the absence of a warning for a given drug or drug combination is not an indication that the drug, dosage or drug combination is safe, appropriate or effective for any particular person. The Licensed Content that may be provided to you may provide information about medications, but the Licensed Content is limited, intended to be just one of many sources of referential material, and may be confusing to you when not interpreted by a healthcare professional. The Licensed Content is not intended, and you agree not to rely on the Licensed Content as a substitute for the knowledge, expertise, skill, verbal counseling, physical demonstration of an administration technique, or judgment of pharmacists, physicians, or other healthcare professionals.
The information presented in the Licensed Content:
a. is intended and presented only for general educational purposes and is used solely at your own risk;
b. is not intended as, and may not be used as, a substitute for the diagnosis, expertise, treatment, advice, and judgment of a physician, nurse, pharmacist or other healthcare professional (a health care professional should be consulted before taking or discontinuing a drug mentioned in the information presented or before relying on the information);
c. is subject to change without notice;
d. is not comprehensive and does not cover all uses, precautions, side effects, warnings, and interactions related to pharmaceuticals or treatments;
e. may not apply to any specific medical condition;
f. does not take into account your personal circumstances and should not be relied upon or construed to indicate that a use of a drug or treatment is safe, appropriate, or effective for a given individual;
g. is only applicable to use in the United States and its territories and to pharmaceuticals legally available in the United States and its territories;
h. does not constitute medical advice or professional advice of any kind;
i. is offered “as is” with no warranty or guarantee of accuracy, completeness, or suitability for use by any individual; and
j. has not been reviewed for compliance with federal or state pharmaceutical marketing, advertising, and disclosure statutes or regulations.
The Licensed Content and the applicable processes, formulas, algorithms, system architecture, database schemas and production methodology used in producing the Licensed Content and the Content are the proprietary property of UpToDate and/or its affiliates and/or UpToDate’s licensors, and (b) the Licensed Content is protected by copyright, trade secret and other intellectual property laws. All right, title and interest in and to the Licensed Content and all information and content therein, including all copyrights and other intellectual property inherent therein or appurtenant thereto, are, and at all times shall remain, the sole and exclusive property of UpToDate, its affiliates or licensors. The Licensed Content is provided to you on the basis of a limited license in connection with your use of the Services.
Limitation of Liability. Notwithstanding anything in these terms to the contrary, in no event shall UpToDate, its affiliates, or licensors, or any of its or their respective directors, officers, employees, or agents, be liable to you or any third party whose claim is related to your use of the Licensed Content, under any theory of tort, contract, strict liability or other legal or equitable theory.
Billing. We use Stripe, a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your account on the Services (your “Billing Account”) for use of the Paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms. We are not responsible for errors by the Payment Processor. By choosing to use the Paid Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms and you authorize us, through the Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment. We also reserve the right to change our billing methods at any time; any changes to billing methods will be posted on or through our website or the App. Your continued use of the Paid Services after changes have taken effect means that you accept such changes.
Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand. All payments must be made in U.S. dollars.
Recurring Billing. Some of the Paid Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation.
WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO YOUR ACCOUNT SETTINGS OR CONTACT US AT email@example.com.
Current Information Required. You must provide current, complete and accurate information for your Billing Account. You must promptly update all information to keep your Billing Account current, complete and accurate (such as a change in billing address, credit card number or credit card expiration date), and you must promptly notify us or our Payment Processor if your Payment Method is canceled (e.g., for loss or theft) or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your user name or password. Changes to such information can be made in your account settings; however, this may temporarily disrupt your access to the Paid Services while Hero verifies your new payment information and may result in a change to your payment billing date. Hero is not liable for any loss caused by any unauthorized use of your credit card, debit card or any other method of payment by a third party in connection with your use of the Paid Services. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
Auto-Renewal for Paid Services. Any Paid Services (for example, use of the App and Refill and Delivery) you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or resign your Paid Services at any time, contact our 24/7 Live Support . If you terminate a Paid Service within a pre-paid or other commitment period after the Trial Period, if any, you will be charged or, as applicable, will not be refunded for the remainder of the applicable commitment period upon termination. If you purchase Paid Services with an initial term of greater than one year, your Paid Services will renew, following the expiration of the initial period, for successive one-year periods at the then-current non-promotional rate for such one-year commitments. After the initial commitment period applicable to your order, you will be charged on a month-to-month basis for Paid Services previously paid on a monthly basis, and you may cancel at any time with no penalty, and on an annual basis, in advance for Paid Services previously paid on an annual or greater basis, which may not be canceled prior to the expiration of the subsequent renewal term. Please see our Limited Warranty, Returns and Cancellations Policy for more information. If you do not want to continue to be charged on a recurring basis, you must cancel the applicable Paid Service by contacting our 24/7 Live Support or terminate your Hero account before the end of the recurring term. Paid Services cannot be terminated before the end of the period for which you have already paid, and except as expressly provided in these terms, Hero will not refund any fees that you have already paid.
Reaffirmation of Authorization. Your non-termination or continued use of a Paid Service reaffirms that we are authorized to charge your Payment Method for that Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Service.
Cancellations & Other Permissions. Subject to the terms of any commitment period associated with your order, you can cancel your subscription to the Services for any reason if you are dissatisfied with the Services. Please see our Limited Warranty, Returns and Cancellations Policy for more information. Any Dispensers returned to us due to your subscription cancellation or otherwise must not have visible damage or other physical flaws that are the result of improper use or handling (including scratches and missing components). Hero may in its discretion refuse any request to cancel, suspend or modify the account of a member or disclose information about a member or an account, except that the named account holder, their legal representative, a Caregiver (consistent with and only to the extent of the privileges granted to such Caregiver by the account holder in the App), or any individual with access to the account email, may cancel, or suspend billing, on an account or request informational disclosures from Hero. To the extent a cardholder name is given, retained and verified by us in connection with a subscription order, the named cardholder may request only the discontinuation of charges to that payment method but may not make any other changes to an account by virtue of being a cardholder. Hero reserves the right to request a copy of a government issued photo ID and other relevant documentation prior to initiating any disclosure or change request. In the event a Dispenser is returned to us by any person, the associated account may be terminated and applicable charges applied to your payment method at the discretion of Hero.
Title. Hero retains ownership of and title to the Dispenser, unless you purchased a subscription and/or Dispenser before October 1st, 2019, in which case ownership of and title to the Dispenser passed to you upon delivery of the Dispenser to the carrier. If you or any other person or entity, transfers, attempts to transfer, sells or offers for sale a Dispenser assigned to you, your account will be immediately suspended and, if title to the Dispenser belongs to Hero, you will be immediately charged any applicable cancellation fee, and in addition, $1,500. If you return the Dispenser to us within thirty (30) days of the date we notify you of the cancellation of your account for the reasons set forth in this section, the $1,500 fee, if successfully charged, will be refunded to you. Your payment of any fee applicable to your failure to return a Dispenser shall not constitute your purchase of the Dispenser or entitle you to any rights in or to the Dispenser. If you purchased a subscription and/or Dispenser before October 1st, 2019, you are responsible for filing any claims with carriers for damaged or lost shipments. IF YOU DID NOT PURCHASE A SUBSCRIPTION DIRECTLY FROM HERO YOU MAY NOT USE A DISPENSER IN CONNECTION WITH THE SERVICES.
Shipping. When you place an order including a tangible product (including a Dispenser) through our Store, the tangible product will be shipped to the address you designate as the “Shipping Address” during the check-out process. Please see our Limited Warranty, Returns and Cancellations Policy for more information.
Risk-Free Trial Period. Your subscription to the Services may begin with a risk-free trial. If we offer a risk-free trial, the specific terms of your trial offer will be stated in the material describing the particular risk-free trial which accompanies or immediately follows your order and/or in our Limited Warranty, Returns and Cancellations Policy. Risk-free trials are for new Hero customers only. We may be unable to accommodate combining risk-free trials with any other offers. Hero reserves the right to determine eligibility for any risk-free trial. Risk-free trials may require the payment of up-front fees and costs such as activation and shipping charges, some of which may be non-refundable. Once your Trial Period ends, we will continue billing your Payment Method for fees corresponding to your subscription choices (plus any applicable taxes), unless you cancel prior to the end of the Trial Period. For that reason, unless otherwise indicated in the risk-free trial description, you may be asked to set up a valid Payment Method when redeeming a risk-free trial offer. If you wish to avoid charges to your Payment Method, you must cancel your subscription prior to the last day of the Trial Period. You may cancel your subscription at any time as described in the Limited Warranty, Returns and Cancellations Policy.
Gift and Offer Codes. From time to time, Hero may offer qualified consumers “gift codes” or “offer codes” through a variety of promotional activities and communications (collectively referred to herein as “offer codes”) that are redeemable towards a purchase on the website, Store, or App, while supplies last, and subject to certain merchandise exclusions or any other restrictions as may be determined and communicated by Hero in its sole discretion. Only valid offer codes provided or promoted by Hero will be honored at checkout. Codes supplied or promoted by third parties unauthorized by Hero (including any unauthorized third party websites) will not be considered valid. Each offer code promoted by Hero is non-transferable and valid for single use on an item (or items) of merchandise as determined by Hero. Offer codes may not be combined and may not be used in conjunction with any type of Hero Referral Program; customers may be limited to the use of a single offer code per order. Offer codes cannot be used towards purchase of non-branded merchandise, packaging or applicable taxes. For online purchases, the code must be entered in the “offer code” field at checkout. Hero is not responsible for lost, stolen or corrupted codes or any unauthorized use of codes. Offer codes cannot be redeemed for cash or any cash equivalent; no substitutions or credits allowed. The dollar value of any offer code will not be refunded or credited back if any or all of the merchandise is returned. Expiry dates may apply to each offer code. Offer codes are void if copied, transferred, sold, exchanged or expired, and where prohibited. Requests not complying with all offer code requirements will not be honored.
Referral Program. Hero thanks you for participating in our Referral Program (the “Referral Program”) made available to you through the Services.
Eligibility: The Referral Program is eligible to users of our Services, who are not employees of Hero.
Participation: You may refer friends and close personal contacts to purchase our Paid Services (“Referred Users”) by sending them your personal referral code that Hero provides to you either via our website, App, or otherwise (“Unique Code”). You can send your Unique Code to Referred Users via email, a Facebook post, a Twitter post, or otherwise. The Unique Code will confer a benefit to the Referred User at checkout as determined by Hero from time to time and may include a discount,
Rewards: Upon a Referred User signing up for our Paid Services with your Unique Code, and maintaining their subscription through their applicable Trial Period, if any, or any extension thereof, without cancellation, you will receive three (3) free months of subscription (“Rewards”). Rewards may not be redeemed or exchanged for cash value. Rewards are not transferable once assigned to a subscription . Caregivers earning Rewards as Caregivers may assign those Rewards to an account designated by the Caregiver within 18 months of accruing the Rewards. Rewards when assigned, must be used in the next applicable billing cycle, however there is no limit to the number of Rewards you can accrue. Rewards associated with a cancelled account shall likewise be cancelled and are thereafter not recoverable.
General: Hero reserves the right to cancel or modify the Referral Program without prior notice in its entirety at any time for any reason. Rewards and eligibility rules are subject to change at Hero’s sole discretion. Hero reserves the right to cancel, revoke, or otherwise prevent the issuance of Rewards in any suspected case of fraudulent use or misuse of this Referral Program. You acknowledge and agree that you will comply with all applicable laws, rules, and regulations with respect to your participation in the Referral Program, including, but not limited to, your use and sharing of your Unique Code. Spam, illegal emails, or bulk communications (e.g., mass text blasts, automated postings on Internet forums/instant messages/phone calls) are not permitted. In addition, when providing your Unique Code to others, you must notify them of your financial relationship with us. Licensed healthcare providers are prohibited from distributing the Unique Code to their patients. Endorsements and promotions of the Referral Program are prohibited without the express written permission of Hero. All questions or disputes regarding eligibility and rewards for the Referral Program will be resolved by Hero in our sole discretion.
Gift and Offer codes may not be used in conjunction with the Referral Program.
What if I want to stop using the Services?
Hero is also free to terminate (or suspend access to) your use of the Services or your account, or to “brick” any Dispenser (thereby making it inoperable), for any reason in our discretion, including your breach of these Terms. Hero has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms. Hero also reserves the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities of Dispensers or other products on a per person, per household, or per order basis. 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 email and/or billing address/phone number provided at the time the order was made. We also reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors or in connection with any commercial service.
We may also periodically replace our Dispensers as we improve the technology and add new features. If we upgrade all of our Dispensers, you will have the option to upgrade to a new Dispenser at a time to be determined by us, and which may come at an additional charge or require other commitments from you, and be subject to eligibility criteria to be established by us. If you choose to continue using an older Dispenser model or other outdated Services, we may, at our sole discretion, no longer provide support services for such older Dispenser model or other Services, and we will have no liability if you continue to use an older Dispenser model or other outdated Services after we have upgraded our Dispensers or other Services. If we have upgraded to a new Dispenser model, we also reserve the right to “brick” any older Dispenser models that we no longer support, without liability to you. If we upgrade other Services, such as but not limited to the App we reserve the right to require that you upgrade such Services and/or prevent you from using older versions of such Services, again, without liability to you.
If Hero is unable to successfully charge your credit card or payment account for any fees due, Hero reserves the right to revoke or restrict access to your Content, delete your stored Content, or terminate your account.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account. We will try to provide advance notice to you prior to our terminating your account so that you are able to retrieve any important User Submissions you may have stored in your account (to the extent allowed by law and these Terms), but we may not do so if we determine it would be impractical, illegal, not in the interest of someone’s safety or security, or otherwise harmful to the rights or property of Hero.
If you have deleted your account or the App by mistake, contact us immediately at firstname.lastname@example.org – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.
What about mobile applications?
You acknowledge and agree that the availability of our App is dependent on the third party stores from which you download the application, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from such store, including the specific terms relating to the Apple App Store set forth below. You agree to comply with, and your license to use our application is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
I use the App available via the Apple App Store – should I know anything about that?
These Terms apply to your use of all the Services, including the App available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the App:
- Both you and Hero acknowledge that the Terms are concluded between you and Hero only, and not with Apple, and that Apple is not responsible for the Application or the Content;
- The App is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
- You will only use the App in connection with an Apple device that you own or control;
- You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App;
- In the event of any failure of the App to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the App;
- You acknowledge and agree that Hero, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the App;
- You acknowledge and agree that, in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Hero, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
- Both you and Hero acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
- Both you and Hero acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
What else do I need to know?
Warranty Disclaimer. Neither Hero nor its licensors or suppliers make any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of products or services offered or purchased through the Services. Products (including Dispensers) and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS IS” and without any warranty of any kind from Hero or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE SERVICES AND CONTENT ARE PROVIDED BY HERO (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES AS TO PRODUCTS OR SERVICES LISTED ON THE SITE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. WE DO NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR CONTENT WILL BE EFFECTIVE, RELIABLE OR ACCURATE OR WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; THAT THE QUALITY OF ANY PRODUCTS OR SERVICES AVAILABLE ON THE SITE WILL MEET YOUR EXPECTATIONS; OR THAT ANY ERRORS IN THE SITE WILL BE CORRECTED. WE MAKE NO GUARANTEES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO ANY CONTENT AVAILABLE THROUGH THE SERVICES. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON ANY SUCH CONTENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL HERO (OR ITS LICENSORS, SUPPLIERS, REFERRAL PARTNERS, OR OTHER INTERMEDIARIES AUTHORIZED TO DISTRIBUTE THE SERVICES TO YOU) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO HERO IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. To the fullest extent allowed by applicable law, you agree to defend, indemnify and hold Hero, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account) and any Products, and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Hero’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof.
Dispensers; Refurbished Dispensers. In Hero’s sole discretion to the extent your purchase of a subscription entitles you to the use of a Dispenser, Hero may request that you return for exchange a Dispenser at any time and for any reason or no reason. A Dispenser provided to you for use in connection with a subscription , initially or as a replacement, may, in the sole discretion of Hero be either a new Dispenser or a refurbished Dispenser.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with HERO and limits the manner in which you can seek relief from us. Both you and Hero acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Hero’s officers, directors, employees and independent contractors (“Personnel”) are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. Any dispute arising out of or relating to the subject matter of these Terms shall be finally settled by binding arbitration in New York County, New York. The arbitration will proceed in the English language, in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of JAMS/Endispute LLC (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction.
(b) Costs of Arbitration. The JAMS rules will govern payment of all arbitration fees. Hero will pay all arbitration fees for claims less than $75,000. Hero will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c) Small Claims Court. Furthermore, either you or Hero may assert claims, if they qualify, in small claims court in New York County, New York or any United States county where you live or work.
(d) Waiver of Jury Trial. YOU AND HERO WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Hero are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Hero over whether to vacate or enforce an arbitration award, YOU AND HERO WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: email@example.com. postmarked within thirty (30) days of first accepting these Terms. You must include (a ) your name and residence address; (b ) the email address and/or telephone number associated with your account; and (c ) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Hero to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party and both you and Hero agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, New York County, New York, or the Southern District of New York.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that Hero may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Hero agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Hero, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Hero, and you do not have any authority of any kind to bind Hero in any respect whatsoever.
Except as expressly set forth in the sections above regarding the Apple App Store and the arbitration agreement, you and Hero agree there are no third party beneficiaries intended under these Terms.