Terms of Service

MAPHABIT, INC.

TERMS OF SERVICE

***PLEASE READ CAREFULLY***

Last Updated June 28, 2024

These Terms of Service, and any terms expressly incorporated herein (these “Terms”) are a binding contract by and between MapHabit, Inc., a Delaware for-profit business corporation (“MapHabit”, “we”, “us” or “our”) and you (“user”, “you”, “your”, or “yours”) as a user of the Services. These Terms govern your purchase of, access to, use of, and interaction with any of our products and/or services, including our website (https://maphabit.com) (the “Website”), software, including our mobile application (the “Software”), and such integrated services and features (collectively, the “Services”). Throughout these Terms, you and MapHabit may each be referred to, individually, as a “Party”, or, collectively, as the “Parties”.   

BY CLICKING THE “ACCEPT” BUTTON, BY CHECKING THE APPROPRIATE BOX TO ACCEPT THESE TERMS, OR BY ACCESSING THE SERVICES, YOU:  (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS; (B) REPRESENT THAT YOU ARE OF SOUND MIND AND OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT (18 YEARS OF AGE OR OLDER); AND (C) ACCEPT AND AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THESE TERMS.

IF YOU ARE UNDER THE AGE OF EIGHTEEN (18) YEARS OLD, INCLUDING IF YOU ARE A PATIENT, THEN, IN ORDER TO ACCESS AND USE THE SERVICES, YOUR PARENT/LEGAL GUARDIAN, AS WELL AS THE PURCHASER OF THE SERVICES AND THE CAREGIVER, IF SUCH PERSONS ARE DIFFERING, IS EXPRESSLY AGREEING TO THESE TERMS ON YOUR BEHALF. 

IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT CLICK THE “ACCEPT” BUTTON OR CHECK ANY BOX TO ACCEPT IT, AND DO NOT ACCESS OR USE THE SERVICES.  

Your access to and use of our Services is also subject to our Privacy Policy, located on the Website’s homepage, and which is incorporated herein by reference. By using the Services, you consent to the terms of the Privacy Policy.

If you are accessing or using the Services on behalf of a business or entity, then (a) “you”, “your”, and “yourself” includes you and that business or entity, (b) you represent and warrant that you are an authorized representative of the business or entity with the authority to bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf, and (c) your business or entity is legally and financially responsible for your access or use of the Services and, if applicable, for others affiliated with your entity, including any employees, agents or contractors.

FOR THE AVOIDANCE OF DOUBT, THESE TERMS SHALL BE APPLICABLE TO USERS, INCLUDING PATIENTS AND CAREGIVERS, AS SUCH ARE DEFINED HEREIN, WHO ARE PROVIDED WITH ACCESS TO OUR SERVICES BY AND THROUGH A THIRD PARTY SEPARATE ENTITY, OTHER THAN MAPHABIT, WHERE SUCH SEPARATE ENTITY HAS SPECIFICALLY CONTRACTED WITH MAPHABIT IN ORDER TO BE ABLE TO PROVIDE ITS “END USERS” WITH ACCESS TO AND USE OF CERTAIN SERVICES (SUCH SPECIFIC USERS MAY ALSO BE REFFERED TO HEREIN AS, “B2C END USERS”). FURTHER, THESE TERMS SHALL ALSO BE APPLICABLE TO USERS, INCLUDING PATIENTS AND CAREGIVERS, WHO DIRECTLY PURCHASE SUBSCRIPTION PLANS FOR SERVICES BY AND THROUGH OUR WEBSITE AND ARE SUBSEQUENTLY PROVIDED WITH ACCESS TO AND USE OF CERTAIN SERVICES (SUCH SPECIFC USERS MAY ALSO BE REFFERED TO HERE AS, “INDIVIDUAL USERS”).

ARBITRATION NOTICE FOR USERS IN THE UNITED STATES OF AMERICA:  THESE TERMS CONTAIN AN ARBITRATION CLAUSE AND A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST US. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND MAPHABIT AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND MAPHABIT WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

1. Modification to These Terms. We may modify these Terms by providing notice of such changes, such as by sending you an email, providing notice through the Services, or updating the “Last Updated” date at the top of these Terms. By clicking on an “I Agree” button or checkbox presented with the modified Terms, or by continuing to access or use of the Services, you confirm your agreement to the modified Terms. If you do not agree to any modification to these Terms, you must stop using the Services. We encourage you to frequently review the Terms to ensure you understand the terms and conditions that apply to your access to, and use of, the Services. If you have any question regarding the use of the Services, please contact us in accordance with the Section below entitled “Contact Us”.

2. MapHabit Services. 

2.1 Services Generally. MapHabit is a software company that has developed the MapHabit Services as a solution to assist individuals (“Patients”) suffering from memory impairment, stress, anxiety, fatigue, or other ailments or health issues, in managing their health and wellness, including, but not limited to, the Tablet Ultimate Subscription Services, Tablet Core Subscription Services, and Dementia Support Session Subscription Services, as further described on the Website, as well as other product and services offering which MapHabit may provide, from time to time. MapHabit further allows authorized and consenting individuals designated by the Patient, which may include, but is not limited to friends, family, and other authorized caregivers (the “Caregivers”), to access the Services, specifically the Software, to help monitor and better care for the Patients. Subject to your compliance with these Terms, MapHabit grants you a non-exclusive, non-transferable, non-assignable, revocable, limited, and personal right and license to access and use such certain MapHabit Services, which are purchased by way of a Subscription Plan, subject to the terms and limitations set forth in these Terms.

2.2 Welcome Review. In order to provide you with personalized Services and Services which are most suitable for the needs of the Patient, including customizing and/or pre-provisions/pre-programming, if applicable, the Software application and the settings applicable to the delivery of the Services, we may require or request, via e-mail, a “welcome review” meeting between the Patient and/or Caregiver, whereby, if so required or requested by MapHabit, you must sign up and attend the “welcome review” meeting” prior to being able to access and use or Services. 

2.3 No Medical Advice. Other than the guidance and advice you receive directly by you from your licensed medical provider, no part of the Services is or shall be considered medical advice. You should always talk to an appropriately qualified health care professional for diagnosis and treatment, including information regarding which medications or treatment may be appropriate for you. No part of the Services represents or warrants that any particular medication or treatment is safe, appropriate, or effective for you. MapHabit does not endorse any specific tests, medications, products, or procedures. 

3. Account Activation.  

(a) Upon purchasing a Subscription Plan for certain Services, MapHabit, in a welcome e-mail or by way of some other form of correspondence, will provide you with a unique username and password, to be used as your account login information for your user account, which is created by MapHabit on your behalf and which is to be utilized in order to access the Services. However, following your initial access to the Services, you should update/change the provided password to a unique password for Account security purposes. In the alternative, if you are a user who is receiving access to the Services by and through a third party company, other than us, then you may be required to register for a unique user account in order to thus be able to access and use the Services (the foregoing, collectively, an “Account”). You agree that you will not create more than one Account or create an Account for anyone other than yourself without first receiving permission from the other person.  

(b) You are responsible for keeping your Account and your password secure. You agree to notify us immediately of any unauthorized access to or use of your Account, username, or password or any other breach of security. You also agree to ensure that you exit from your Account at the end of each session. You should use particular caution when accessing your Account so as not to provide third parties with Account credentials. MapHabit will not be liable for any loss that you incur as a result of someone else accessing and using your Account, either with or without your knowledge.

(c) In exchange for your use of the Services, you agree to provide true, accurate, current, and complete information about yourself as prompted by our Account activation process. Further, you agree to maintain and promptly update your Account information to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, not current, incomplete, or MapHabit has reasonable grounds to suspect that such Account information is untrue, inaccurate, not current, or incomplete, MapHabit reserves the right to suspend and/or terminate your Account. 

(d) You are responsible for obtaining the access necessary to use the Services, which may include network access. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and any updates thereto. We do not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.

4. MapHabit Services Use Restrictions. You agree not to access or use the Services in an unlawful way or for an unlawful or illegitimate purpose or in any manner that contravenes these Terms. You shall not post, use, store, or transmit (a) messages or information under a false name; (b) information that is unlawful, libelous, defamatory, obscene, fraudulent, predatory of minors, harassing, threatening, hateful to any person, or that is likely to cause harm to any person; or (c) information that infringes or violates any of the intellectual property rights of others or the privacy or publicity rights of others. Additionally, if you are a Caregiver, you expressly acknowledge and agree that you shall not upload, download, store, provide, transmit, access, or use any Protected Health Information (“PHI”) in connection with a Patient, as defined under the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”) (y) without express, prior written consent of the Patient whose PHI is at issue; or (z) in any manner that is unlawful.

5. Software Use Restrictions. You shall not directly or indirectly:  (a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or materials related to the use of the Software (as applicable) in any form or media or by any means (the “Documentation”); (b) attempt to de-compile, reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Software; (c) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; (d) provide any other person with access to or use of your Account; (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features, functionality, components, elements or parts of the Software, to any third party, without MapHabit’s prior written consent; (f) interfere with or disrupt the Services, networks, or servers connected to the MapHabit systems or violate the regulations, policies, or procedures of such networks or servers, including unlawful or unauthorized altering of any of the information submitted through the Services; or (g) use the Services or Documentation in violation of law applicable to you. MapHabit has no obligation to monitor your use of the Software and Services; however, MapHabit reserves the right, at all times, to monitor such use, and to review, retain, and disclose any information as necessary to ensure compliance with the terms of these Terms, and to satisfy or cooperate with any applicable law, regulation, legal process, or governmental request.

6. Updates. 

(a) MapHabit has sole discretion to issue periodic updates, upgrades, new releases, adaptations, bug fixes, patches, workarounds and other error corrections (“Updates”). You agree that MapHabit has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You agree to promptly download (as applicable), install, and make use of all Updates as soon as they become available and acknowledge and agree that the Software or portions of the Software may not properly operate should you fail to do so. You further understand and agree that all Updates will be deemed part of the Software and be subject to all terms and conditions of these Terms.

(b) Certain maintenance activities and Updates may be necessary or appropriate, from time to time. In most instances, the MapHabit infrastructure is designed to support updates by the MapHabit engineering and support teams without the need to interrupt the Services. Where such maintenance activities are not reasonably anticipated to impact your use of the Services, MapHabit will have no obligation to provide notice to you regarding such maintenance activities, although MapHabit generally does so. 

7. Collection and Use of Your Information. 

7.1 Privacy Policy. You acknowledge that when you use the Services, you may be required to provide certain information about yourself. MapHabit may also use automatic means to collect information about your computing device and your use of the Software. All information we collect through or in connection with the Services is subject to our Privacy Policy, which is incorporated herein by reference. By using and providing information to or through the Services, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

7.2 Protected Health Information. Please be aware that we may collect PHI, of or as related to a Patient, that you provide to us via the “welcome review” meeting or through forms, surveys, or other means, including providing PHI, at your election, directly to/within our Services, in order for us to provide you with customized/personalized Services, or otherwise, as part of using our Services. Your PHI will be used and disclosed solely for the purposes described above, and we will not use or disclose your PHI for any other purposes without your explicit consent. By using our Services, you consent to the collection, use, and disclosure of your PHI as described in this Section 7. You may withdraw your consent at any time by contacting us in accordance with the Section below entitled “Contact Us”. 

8. Shipping Policy. Some of our Services require the use of a tablet or other product (the “Product”), which, as set forth on an Order Page, may be included within the Subscription Fees for a given Subscription Plan. Shipping times will vary; however, once your purchase of a Subscription Plan is processed, your Product should arrive within five (5) to eight (8) business days. Please note that we do not ship to addresses outside of the United States of America. You will receive a shipping confirmation e-mail with tracking number once the order has shipped. We generally do not accept returns of the Product; however, you may reach out to us with any questions or concerns in accordance with the Section below entitled “Contact Us”. 

9. Intellectual Property Rights.

9.1 Ownership of Service. MapHabit expressly and exclusively reserves for itself any and all registered and unregistered rights (whether or not registrable), granted, applied for, or otherwise now or hereafter in existence under or related to any patent or patentable subject matter, copyright or copyrightable subject matter, trademark or trademarkable subject matter, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world (the “Intellectual Property Rights”) that are created, generated, acquired, or used connection with the Services, including, but not limited to the Software. Nothing herein shall be deemed to grant any rights or licenses to MapHabit’s Intellectual Property Rights to you, except as is expressly required for you to use the Services (but not apart from your use thereof). 

9.2 Feedback. Over the course of your use of the Services, you may submit suggestions, ideas and/or feedback (collectively, the “Feedback”) to MapHabit. You agree that MapHabit will own all Feedback and you hereby assign to MapHabit all right, title and interest to Feedback together with all associated intellectual property rights. You will not be entitled to, and hereby waive any claim for, acknowledgment or compensation based on any Feedback or any modifications made based on any Feedback.

9.3 User Submissions. As used in these Terms, “User Submissions” means any and all information, materials, data, photos, or the like that you input, submit, provide, upload, deliver, store, transmit, make available, or grant access (or causes to be delivered, made available or access to be granted) to us or the Services (i) in connection with our performance hereunder or your use of the Services, or (ii) that are utilized in connection with, or incorporated or inputted into, the Services, and for the avoidance of doubt, may include PHI which you provide or otherwise disclose to us and any answers to questions which you may submit within the Services. To enable us to provide the Services, you grant to us a non-exclusive, worldwide, royalty-free, assignable, transferable and sub-licensable (at multiple levels) right and license, effective for the term of these Terms, to use, reproduce, adapt, translate or transform, distribute (internally only), perform, and prepare derivative works based upon, your User Submissions and derivatives thereof, and authorize our vendors, suppliers, agents, and sub-contractors to do any of the foregoing, only as reasonably necessary to use your User Submissions in connection with Services, solely for the performance of our obligations hereunder, and to provide Services to you, regardless of the form, medium, or technology being employed to provide Services.

9.4 Related Data Usage. You also grant to us a non-exclusive, perpetual, irrevocable, worldwide, and royalty-free, right and license to use and disclose the information contained in or derived from your User Submissions or Related Data (defined below), on an anonymous (de-identified) basis only (on an aggregated or un-aggregated basis), for statistical, analytical, research, marketing, product/service improvement, and similar purposes. “Related Data” means data or information associated with or arising out of your User Submissions or your use of Services (including without limitation data associated with usage of, requests made to, and responses generated in connection with, Services).  

10. Third-Party Content. The Services may contain links to third party websites, advertisers, services, special offers, or other events or activities not owned by us (“Third-Party Content”). We do not control, endorse, or adopt any Third-Party Content and shall have no responsibility for Third-Party Content, including, without limitation, material that may be misleading, incomplete, erroneous, offensive, indecent, or otherwise objectionable. In addition, your business dealings or correspondence with such third parties are solely between you and the third parties. We are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings, and you understand that your use of Third-Party Content, and your interactions with third parties, is at your own risk.

11. Fees and Payment (Specific to Individual Users). 

The following pricing and payment terms apply to all Services:

11.1 Subscriptions. Unless otherwise expressly stipulated by us in a separate and duly executed agreement with you, all Services are on a recurring subscription basis. By electing to license and use, or, as the case may be, to receive, certain Services, you are agreeing to pay such accompanying Subscription Fees applicable to such Services selected and purchased (each, a “Subscription Plan”). 

11.2 Pricing and Subscription Fees. You agree to pay us all fees (the “Subscription Fees” or “Fees”) for your access to, use of, and, as applicable, your receipt of, Services (and any associated services) that you order and purchase from us, in accordance with the payment terms set forth in this Section. Our current fees are available on the Services pricing page, through a personalized payment page, or via an order form (in each case, an “Order Page”) that we send to you (or to which we otherwise provide you with personalized access). To the extent we provide the Services or other features or services for which we charge a Fee that are not listed in those pricing terms, we will provide you with notice of such Fee prior to providing the feature or service (for example, by displaying the Fee to you on a corresponding Order Page or by way of email; by displaying the fee to you, for your review and acceptance, within your designated account or portal; or otherwise, by displaying the Fee at the time you are using the feature to which the fee applies, and your use of the feature to which the Fee applies constitutes your consent to such Fee).

11.3 Subscription Period. Each Subscription Plan that we offer shall be subject to a specific term for which such Subscription Plan will be in effect (the “Subscription Period”), and you may have the ability to select one or more Subscription Period options for your Subscription Plan, including a yearly Subscription Period. The Subscription Period for your Subscription Plan begins on the earlier of (i) the date on which we provide you with access to the Services; or (ii) the Subscription Period commencement date set forth on the personalized payment acceptance web page for your Subscription Plan that you accept (the “Subscription Start Date”). Upon conclusion of your Subscription Period then in effect, your Subscription Plan shall automatically renew for a subsequent Subscription Period equal in duration to the concluded Subscription Period, unless you elect to change, terminate, or non-renew you Subscription Plan, as provided in these Terms. We will automatically charge you the applicable Subscription Fee for the next Subscription Period upon each renewal, pursuant to the payment terms of your Subscription Plan.

11.4 Changes to Subscription Fees. We expressly reserve the exclusive right to make changes to the prices of any of our Subscription Plans, and to our pricing structure generally, at any time and in our sole discretion; provided however, we will provide you with at least thirty (30) days’ advance notice of any such fee or pricing policy changes in accordance with the Section below entitled “Contact Us”. Notwithstanding the foregoing, however, changes to the Subscription Fees due or payable by you will only take effect upon the renewal of the Subscription Plan then in effect.

11.5 Additional Payment Terms. Payment of all Subscription Fees, or if paying in monthly installments, then such monthly Subscription Fees, are due in advance, unless otherwise noted in the applicable Order Page. We have no obligation to perform under these Terms during any period in which all applicable fees due have not been paid in full. 

11.6 Payment Card. To use our Services, you must provide to us and maintain at all times a valid, current credit or debit card (a “Payment Card”) and related billing information as a condition to using the Services, and we will automatically charge your Payment Card for any fees due, without the requirement of your signature or any additional action on your part. You expressly authorize us to charge your Payment Card for all fees owed to us in connection with the Services. Payments of fees are processed by a third-party payment processor selected by us, from time to time, and such payment services are governed by such third-party payment processor’s Terms of Service and Privacy Policy. Should you seek to update your Payment Card on file, please reach out to us in accordance with the Section below entitled “Contact Us”. 

11.7 Payment of Subscription Fees via Check. Additionally, we may allow you to pay the Subscription Fees via check; however, we will only accept payment via check where an annual Subscription Period is elected, whereby such Subscription Fees for the selected Subscription Plan are paid in full, upfront, and which is remitted for the full amount of the annual Subscription fee amount. If seeking to pay for a Subscription Plan via check, please contact us in accordance with the Section below entitled “Contact Us”, so that we may approve of your payment of Subscription Fees via check, and in order for us to provide you with the requisite payment instructions. 

11.8 Taxes Excluded. Our Fees do not include, and we are not responsible for, (i) any additional fees, charges, or duties imposed on you by any third party due to your use of the Services, including, without limitation, any financial institution fees or processor or intermediary fees; or (ii) any taxes, levies, or duties or similar amounts related to the fees or your use of Services. You are responsible for paying all of the foregoing. YOUR OBLIGATIONS TO PAY AMOUNTS DUE WILL SURVIVE TERMINATION OF THESE TERMS FOR ANY REASON.

11.9 Special Subscription Plan. We may, from time to time, and in our sole discretion, create and offer one or more subscription types (each, a “Special Subscription Plan”) to Services that offer features, functionality, or levels of access that are limited, or otherwise different from, the other Services offered under standard Subscription Plans. Special Subscription Plans may be subject to additional terms and Subscription Fees that are calculated differently from those of other Subscription Plans. We will, from time to time, make available to you information about any such unique features, functionality, limitations, and pricing differences of any such Special Subscription Plan then available, whether on our Website generally, on a dedicated page for such a plan, or as part of a personalized payment page that we send to you. We reserve the right to introduce, amend, and to discontinue any aspect of any Special Subscription Plan at any time, for any reason, with advance notice to you (or to which we otherwise provide you with personalized access).

12. Termination; Effect of Termination; Suspension. These Terms become effective on the date on which you register for, purchase Subscriptions Plans to, log into, access, or use the Services, or otherwise indicate your agreement to these Terms (whichever is earlier), and shall continue in full force and effect until terminated as set forth below.

12.1 Termination by Non-Renewal. You may elect not to renew your Subscription Plan to the Services by providing notice to us, in accordance with the Section below entitled “Contact Us”, at any time prior to the conclusion of the Subscription Period then in effect (a “Non-Renewal Termination”).  

12.2 Termination or Suspension by Us. Notwithstanding anything in these Terms to the contrary, we reserve the right to suspend our performance hereunder and/or suspend or limit your and/or any of our users’ access to or use of Services, or to terminate these Terms, immediately and without any liability to you in the event of (i) a breach of these Terms by you (including failure to make any payment when due), or (ii) any act or omission by you (a) that constitutes a violation of these Terms, (b) in our reasonable discretion, poses a risk of disruption or interference with any portion of the Services (or the security thereof) or with any other user’s use of the Services (or any portion thereof), or (c) constitutes (in our reasonable discretion) an unreasonable, excessive or abusive use of Services, our systems or resources. Neither termination of these Terms or suspension of your use of the Service relieves you of your obligation to pay amounts due to us.

12.3 Effect of Termination. Termination of these Terms, for any reason, also terminates all of your rights to use any and all Services. If you cancel your Subscription Plan for convenience before the end of the current Subscription Period, the fees for that Subscription Period are non-refundable and remain due and payable.

13. Disclaimer of Warranties. 

(a) NEITHER MAPHABIT, ITS AFFILIATES, LICENSORS OR SUPPLIERS, NOR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, OR REPRESENTATIVES MAKES ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS YOU, OR ANY OTHER PERSON OR ENTITY WITH RESPECT TO SERVICES  OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ARE FOR COMMERCIAL USE ONLY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. NO WARRANTY IS MADE THAT USE OF SERVICES WILL BE TIMELY, ERROR FREE, OR UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED, THAT THE SERVICES WILL BE SUITABLE FOR YOUR NEEDS OR MEET YOUR EXPECTATIONS, THAT THE SERVICES WILL BE SAFE FOR A PATIENT TO USE UNATTENTED, OR THAT THE SERVICES WILL OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY MAPHABIT, OR THAT THE SERVICES FUNCTIONALITY WILL MEET YOUR REQUIREMENTS. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE AND YOUR RELIANCE UPON ANY OF ITS CONTENTS IS AT YOUR SOLE RISK.

(b) YOU SHALL BE SOLELY AND FULLY RESPONSIBLE FOR ANY DAMAGE, LOSS OF DATA, OR ANY IMPROPER USE OR DISCLOSURE OF INFORMATION CAUSED BY YOU OR ANY PERSON USING YOUR USERNAME OR PASSWORD. MAPHABIT CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY LOSS, DAMAGES OR LIABILITIES ARISING FROM THE FAILURE OF THE INTERNET, OR FOR YOUR MISUSE OF ANY PROTECTED HEALTH INFORMATION, ADVICE, IDEAS, INFORMATION, INSTRUCTIONS OR GUIDELINES ACCESSED THROUGH THE SERVICE.

14. Limitation of Liability. 

(a) IN NO EVENT WILL MAPHABIT AND ITS AFFILIATES’ COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE GREATER OF:  (I) ONE HUNDRED DOLLARS ($100.00); OR (II) THE TOTAL NET AMOUNT YOU ACTUALLY PAID TO MAPHABIT DURING THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

(b) NOTWITHSTANDING THE FOREGOING, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY LOSSES OR DAMAGES WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THE SERVICES SHALL BE THE TERMINATION OF YOUR MAPHABIT ACCOUNT.

15. Indemnification. You shall indemnify, defend, and hold harmless MapHabit against any and all claims, demands, costs, liabilities, losses, expenses, and damages including reasonable attorney’s fees (“Losses”) arising out of:  (a) third-party claims alleging that materials provided to MapHabit or uploaded to the Software provided by you, infringes or violates any Intellectual Property Rights of a third party; (b) failure by you to comply with any applicable laws, regulations, and rules, including in connection with the use of the Services; (c) failure by you to obtain any required authorizations or consents from the appropriate parties (including without limitation, from Patients in connection with their PHI); (d) claims made by any Patients in connection with your, if you are a Caregiver, misuse or unlawful use of the Services; (e) the violation by you of Section 4 or Section 5 of these Terms; or (f) if any your acts or omissions in connection with your use of the Services that causes MapHabit to become non-compliant with applicable law (including without limitation, HIPAA).

16. Arbitration, Class-Action Waiver, and Jury Waiver.

16.1 Applicability of Arbitration Agreement. You and MapHabit agree that all claims and disputes (whether contract, tort, or otherwise), including all statutory claims and disputes, arising out of or relating to these Terms or the use of the Services that cannot be resolved in small claims court will be resolved by binding arbitration on an individual basis, except that you and MapHabit are not required to arbitrate any dispute in which either Party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. For clarity:  the phrase “all claims and disputes” also includes claims and disputes that arose between us before the effective date of these Terms.

 

16.2 Initiating Arbitration. Before you commence arbitration of a claim, you must provide us with a written notice (a “Notice of Dispute”) that includes your name, residence address, username, email address or phone number you use for your Account, a detailed description of the dispute, and the relief you seek. Any Notice of Dispute should be sent to us by mail to MapHabit, Inc., ATTN:  Arbitration Filing, 75 5TH STREET, SUITE 3225, ATLANTA, GA 30308. Before we commence arbitration, we will send you a Notice of Dispute to the e-mail address you use with your account, or by other appropriate means. If we are unable to resolve a dispute within thirty (30) days after the Notice of Dispute is received, you or we may commence arbitration.

 

16.3 Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through American Arbitration Association (“AAA”) and will be governed by their commercial arbitration rules, which are then in effect. If AAA is not available to arbitrate, the Parties will select an alternative customary arbitral mechanism. The rules of the arbitral mechanism will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. The arbitration will be conducted by a single neutral arbitrator. The seat of arbitration shall be Atlanta, Georgia (USA). Any claims or disputes where the total amount sought is less than $10,000 USD may be resolved through binding non-appearance-based arbitration, at the option of the Party seeking relief. For claims or disputes where the total amount sought is $10,000 USD or more, the right to a hearing will be determined by the arbitral forum’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

 

16.4 Additional Rules for Non-appearance Arbitration. If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the Party initiating the arbitration. The arbitration will not involve any personal appearance by the Parties or witnesses, unless the Parties agree otherwise.

 

16.5 Fees. We will pay all arbitration filing fees, administration and hearing costs, and arbitrator fees for any arbitration we bring. For all other claims, the costs and fees of arbitration shall be allocated in accordance with the arbitration provider’s rules, including rules regarding frivolous or improper claims.

 

16.6 Authority of the Arbitrator. The arbitrator will decide the rights and liabilities, if any, of you and MapHabit. The dispute shall not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under law, the arbitral forum’s rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and MapHabit.

 

16.7 Waiver of Jury Trial. YOU AND MAPHABIT WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and MapHabit are instead electing 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 MapHabit over whether to vacate or enforce an arbitration award, YOU AND MAPHABIT WAIVE ALL RIGHTS TO A JURY TRIAL and elect instead to have the dispute be resolved by a judge.

 

16.8 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 USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER 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 Section 18.1.

 

16.9 Right to Waive. Any rights and limitations set forth in this arbitration agreement may be waived by the Party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this arbitration agreement.

 

16.10 Opt-out. You can opt out of this provision within thirty (30) days of the date that you agreed to these Terms. To opt out, you must send your name, residence address, username, e-mail address or phone number you use for your account, and a clear statement that you want to opt out of this arbitration agreement, and you must send them here:  MapHabit, Inc., ATTN: Arbitration Opt-out, 75 5TH STREET, SUITE 3225, ATLANTA, GA 30308.

  16.11 Arbitration Agreement Survival. THIS ARBITRATION AGREEMENT WILL SURVIVE THE TERMINATION OF YOUR RELATIONSHIP WITH MAPHABIT.

16.12 Enforcement of MapHabit’s Intellectual Property. You acknowledge and agree that, in addition to or in lieu of arbitration pursuant to this Section 16, we may initiate a proceeding related to the enforcement or validity of our Intellectual Property Rights in any court of law or other forum having jurisdiction. 

17. Contact Us. All feedback, comments, requests for technical support and other communications relating to the Services should be directed to:  support@maphabit.com.

18. Miscellaneous.

18.1 Governing Law. The interpretation and enforcement of these Terms, and any dispute related to these Terms or the Services, will be governed by and construed and enforced in accordance with the laws of State of Delaware (US), without regard to conflict of law rules or principles (whether of Delaware or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. 

18.2 Assignment. These Terms are binding upon and inure to the benefit of the permitted successors and assigns of each Party. You may not assign, subcontract, delegate or otherwise convey these Terms, or any of its rights and obligations hereunder. Notwithstanding anything to the contrary in these Terms, we may assign, transfer, and delegate this agreement (these Terms) and its obligations hereunder at any time, in our sole discretion. 

18.3 Severability. If any provision of these Terms is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of any such provision in every other respect and the remaining provisions of these Terms will be unimpaired and these Terms will continue in full force and effect, unless the provisions held invalid, illegal, or unenforceable will substantially impair the benefits of the remaining provisions hereof.

18.4 Waiver. The failure of either Party to insist upon strict performance or to seek remedy for breach of any term of these Terms, or to exercise any right, remedy or election herein or permitted by law or equity, will not constitute nor be construed as a waiver or relinquishment in the future of such term, condition, right, remedy, or election. Any consent, waiver, or approval by either Party of any act or matter will not be effective unless made in writing and signed by an authorized representative of the consenting, waiving, or approving Party.

18.5 Force Majeure. We will not be responsible or liable to you or deemed in default or breach hereunder by reason of any failure or delay in the performance of our obligations hereunder (including the temporary unavailability or inaccessibility of the Services) where such failure is the result of Force Majeure. As defined herein, “Force Majeure” means any (a) acts of God, flood, fire, wind, storm, drought, earthquake, or other natural disaster; (b) epidemic, pandemic or other public health emergency; (c) terrorist attack, civil war, civil commotion or riot, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination, or sonic boom; (e) any law or any action taken by a government or public authority; (f) collapse of building, breakdown of plant or machinery, fire, explosion, or accident; (g) any labor or trade dispute, materials or transport, strike, industrial action or lockout; (h) interruption or failure of utility service; or (i) or any other cause, whether similar or dissimilar to those enumerated, that is beyond our reasonable control and without our fault or negligence.

18.6 Survival. Termination of these Terms will not affect the provisions that, by their nature, are intended to survive the termination hereof, including without limitation, Sections 9, and 12-18.

18.7 Entire Agreement; Order of Precedence. These Terms contain the entire agreement and supersede all prior and contemporaneous understandings between the Parties regarding the Services. In the event of any conflict between these Terms and any other agreement you may have with us, these Terms will control unless the other agreement specifically identifies these Terms and declares that the other agreement supersedes these Terms.

[End of Terms of Service]