1: About Brightplate’s  Services
We deliver our Services through Brightplate Apps and the Brightplate Site. These Services may include, without limitation:

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• Access to information, text, graphics, photos, resources, or other materials appearing in the Brightplate Programs, in the App, on the Site, or in any aspect of  the Services (the “Content”), including educational Content relevant to your health goals;

• The ability to create, upload, transmit, display, and access User Content;

• The ability to interact with our relevant personnel, including our support teams and, for the Brightplate Programs, our health coaches;

• For certain of the Brightplate Programs, the ability to participate in an online community and to interact with other users of our Services in connection with your health goals;

• The ability to request your health information to share with other healthcare providers or individuals so that they can understand how you use the Brightplate Program(s); and

• Access to other information about us and our products and services through the Sites and any other features, content, or applications that we may offer from time to time.

• We make certain of these features available only to users who register for Brightplate Program(s) and only for the duration of their access to and use of Brightplate Program(s).  We reserve the right to change, suspend, or discontinue the Services at any time and for any reason at our discretion
   

2: Your Account and Use of the Services

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2.1.  Registration and Enrollment.  The Brightplate Programs and the Apps are available only to individuals who: (i) are at least 18 years old;(ii) meet the condition-specific clinical criteria that we have established for enrollment; and (iii) complete the registration process that we prescribe.

 

As a condition to enrolling in a Brightplate Program, you will be required to register with us. You represent and warrant that all information that you submit to us is complete, accurate, and truthful. If you allow a third party to assist you in providing any information to us, including in registering or applying for a Brightplate Program, you represent and warrant that you have reviewed that information and confirmed that it is complete, accurate, and truthful prior to its submission. You also agree to maintain the information that you submit to us (or that any third party submits on your behalf) and to update it promptly for any changes. Failure to keep your information current may constitute a breach of these Terms of Use, which may result in immediate termination of your account.

 

In registering for any of our Services, you also will set an account password. You are solely responsible for setting your password and for maintaining its confidentiality. You also are solely responsible for all activity that occurs on your account. You agree not to share your password with any person, not to permit any person to have access to your password, and not to otherwise facilitate the use of your User ID and password by any other person. You agree to notify us in writing immediately of any unauthorized use of your password or account or any other security breach of which you become aware.

 

2.2  Connecting to the Services.  You are responsible for providing and maintaining, at your own risk, option and expense, appropriate software and hardware capabilities (consistent with any technical, quality or other requirements described in the Services) to enable use of the Service. Brightplate reserves the right to change the technical requirements for accessing the Services, including any software, hardware or other requirements at any time without prior notice.

 

By accessing or using the Services, you acknowledge that we are unable to ensure the security of information you send to us through your Systems or Connections until that information reaches us, and you acknowledge that information sent via email or text message or otherwise through your Systems or Connections may not be encrypted or secure

 

2.3  Your Use of the Services.  We grant to you a personal, non-transferable, non-sublicensable, revocable, limited right to access our Site, download and use the Apps, and use the Brightplate Programs and other aspects of the Services use in accordance with these Terms of Use. You agree to abide by all copyright notices, information, and restrictions contained in the Services and any Content. You agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publish, adapt, edit, create derivative works from, or otherwise exploit the Services, any Content, any third-party content, or any other proprietary rights or other valid rights not owned by you without the consent of the respective owners or in any other way that violates any third-party right. In accessing and using the Services, you also agree not to take any action that (i) is threatening, abusive, harassing, defamatory, libelous, deceptive (including impersonating someone else), fraudulent, invasive of another’s privacy, tortious, unlawful, obscene, offensive, or profane; (ii) interferes or attempts to interfere with the proper working of the Services or any activities conducted on or as a part of the Services; or (iii) records, processes, or mines information about other users without their consent.

 

2.4  Brightplate-Supplied Devices.  In connection with your participation in a Brightplate Program, we may provide you with Brightplate-Supplied Devices. Brightplate-Supplied Devices are pre-configured to supply information to us and share information about you and your health without requiring additional authorizations from you. The device manufacturers of some Brightplate-Supplied Devices may have separate terms of service, privacy policy, or other user agreements (the “Manufacturer User Agreements”) that you must agree to prior to using such devices.

 

2.5 User Content.  In connection with your use of the Services, you may provide to us content, personal information (including without limitation, your name, contact information, food tracking, health readings, and other personally identifiable information), videos, audio clips, written comments, data, text, photographs, or other information (“User Content”). Information that we receive from your Brightplate-Supplied Devices will also be considered part of your User Content. We may also receive information about you from third parties because you subscribe to or otherwise participate in their services (“Third-Party Data Sources”), such as blood pressure monitors, activity trackers, or Apple Health.  Information from Third-Party Data Source will also be part of your User Content.

 

You are entirely responsible for the authenticity, accuracy, completeness, and provision of your User Content. You will be solely responsible for any violation of law and for any infringement of third-party rights caused by your user content.

 

We reserve the right to remove any User Content from the Services at any time if you breach these Terms of Use. We also reserve the right to access, preserve, and disclose any information that we reasonable believe is necessary (i) to satisfy any applicable law, regulation, legal process, or governmental request; (ii) to detect, prevent, or otherwise address fraud, security or technical issues; (iii) to respond to your support requests; or (iv) to protect or enforce the rights of Brightplate, our users, or the public.

 

2.6 Email and Phone Communications.  As a condition to accessing or using the Brightplate Programs, the Apps, and certain other aspects of the Services, you must provide us with your email address and phone number. By participating in the Services, YOU EXPRESSLY AGREE AND CONSENT TO OUR COMMUNICATING WITH YOU VIA EMAIL, SMS/TEXT MESSAGES, VOICE CALLS, PUSH NOTIFICATIONS, AND OTHER ELECTRONIC COMMUNICATIONS THAT RELATE TO THE SERVICES. Standard per minute call and message and data rates may apply. You may opt-out of receiving these messages at any time.
 

3: Your Personal Information and Protected Health Information.

In using our Services, you may provide us with personal information and protected health information.  Our practices regarding privacy of personal information and communicating with users in operating the Service and the Site are described in our Privacy Policy. Please review our Privacy Policy to learn about what information we collect from you, how we use and share it, and how we communicate with our users.  Our Privacy Policy can be accessed here:  www.brightplate.com/privacypolicy.  We also may collect protected health information from you while you use the Services.  Our practices of privacy regarding your protected health information are described in our Notice of HIPAA Privacy Practices, which can be accessed here:  www.brightplate.com/HIPAA  

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If any part of User Content constitutes personally identifiable information as described in our Privacy Policy or protected health information as described in Notice of HIPAA Privacy Practices, we will treat it as such. However, under the license you grant pursuant to Section 6.2 of these Terms, we reserve the right to remove personal identifiers from any and all User Content and, once properly de-identified in accordance with applicable laws, the remaining information (“De-Identified Data”) will not be subject to any obligation of confidentiality on our part. You understand and agree that we own all right, title, and interest in and to any De-identified Data. You also understand and agree that De-identified Data may be used for any lawful business purpose, including in our publications, in sales and marketing materials, and for product research and development.

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4: Termination

We may terminate your access to the Services if we find that you have violated these Terms of Use.  Termination of your account and access to the Services may result in the forfeiture and destruction of your User Content or other information associated with your account. Upon termination of your right to use the Services, all licenses and other rights granted to you by these Terms of Use will immediately terminate.

If you wish to terminate your account, you may do so by following the instructions on the Site or contacting our customer support team at support@brightplate.com. Any fees paid for the Services are non-refundable.

All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity provisions, and limitations of liability.
 

5: Fees and Payment

We reserve the right to require payment for the Services. If you elect to use Services subject to fees, you agree to pay all applicable fees as described in materials provided by Brightplate. We also reserve the right to change our prices in the future with prior notice to you. We may provide this notice by email, via our website, by positing it in the Services or by other means. You agree that if you access the Services subject to fees following that notification, you accept the new charges
 

6: Ownership

6.1 Brightplate Services and Materials.  The Site, the Brightplate Programs, the Apps, all other aspects of the Services and their respective content, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials accessed through or on the Services, including all right, title and interest in the same (including any and all patent, copyright, trade secret, trademark, know-how and any other intellectual property rights therein), are owned by Brightplate and its licensors, and are protected under intellectual property, copyright, trademark and other laws. You agree not to take any action(s) inconsistent with such ownership interests.  Neither these Terms of Use nor your use of any aspects of the Services grants you any right, title, or interest in or to, or any license to reproduce or otherwise use, any trademarks or registered trademarks of Brightplate, Inc.                                                  

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6.2 Your User Content. You retain all ownership of your User Content.  However, by accepting these Terms of Use, you consent and grant to Brightplate a perpetual, irrevocable, non-exclusive, transferable, sublicensable, royalty-free, worldwide right and license to access, use, reproduce, transmit, display, publish, distribute, modify and adapt and create derivative work from any User Content that you post, upload, publish, submit or transmit to be made available through the Services. You also consent to and permit any other user of the Services to access, display, view, store, and reproduce any User Content that you make available to any group within the Services or to the public for his or her personal use without compensation. By posting or submitting Your Content through the Services, you represent and warrant: (i) that you own or otherwise control all of the rights to Your Content, including without limitation, all copyrights; (ii) that Your Content is accurate; and (iii) that use of Your Content does not violate these Terms of Service or our Privacy Policy and will not cause injury to any person or entity.  We take no responsibility and assume no liability for any content or materials submitted or posted through the Services, including in the forums, by you or any third party.  WE RESERVE THE RIGHT TO REMOVE ANY OF YOUR CONTENT THAT WE DETERMINE IN OUR SOLE DISCRETION VIOLATES ANY LAW, INFRINGES THE RIGHTS OF ANY PERSON, OR IS OTHERWISE INAPPROPRIATE FOR POSTING ON THE SERVICES.
 

7: Warranty Disclaimer

THE SITE, THE BRIGHTPLATE PROGRAMS, THE APPS, ANY BRIGHTPLATE CONTENT, AND ALL SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

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NEITHER BRIGHTPLATE NOR ITS LICENSORS GUARANTEE OR WARRANT THAT THE SERVICES OR THE CONTENT (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE; (C) WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM OR DEVICE; OR (D) CAN OR WILL BE CORRECTED IF DEFECTS ARE IDENTIFIED. FURTHER, BRIGHTPLATE DOES NOT WARRANT THE QUALITY, SAFETY, SUITABILITY, RELIABILITY OR AVAILABILITY OF ANY SERVICES OBTAINED BY YOU FROM THIRD PARTIES THROUGH THE BRIGHTPLATE SERVICES.

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PLEASE NOTE THAT SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. HOWEVER, THE LIMITATIONS ABOVE WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
 

8: Medical Disclaimer

We do not provide any professional medical advice or treatment as a part of the Services. NO DOCTOR/PATIENT RELATIONSHIP IS CREATED BY USING THE SERVICES OR CONSULTING WITH THE BRIGHTPLATE HEALTH COACHES.  The information provided by the Services and our health coaches is for informational purposes only and should not be used for the diagnosis or treatment of any medical condition.

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Always seek the advice of your physician or medical professional before deciding to start, alter, or discontinue any medical treatment or for any questions regarding your medical condition, your diet, or the use (or frequency) of any medical device. Do not use the services as a substitute for consulting with your physician or other health care provider.  If there is any conflict between information you receive from using our services and medical advice from your physician, you should follow the advice of your physician. YOU AGREE THAT, BEFORE USING THE SERVICES, YOU SHALL CONSULT YOUR PHYSICIAN, PARTICULARLY IF YOU ARE AT RISK FOR PROBLEMS RESULTING FROM CHANGES IN YOUR DIET.
 

9: Indemnification

You agree to defend, indemnify, and hold harmless Brightplate, Inc. and our affiliates, and our and their respective officers, directors, members, employees, stockholders, managers, agents and representatives (collectively, “Brightplate Indemnified Parties”) from all third party claims, actions, demands, liability, losses, damages, and expenses, including reasonable attorneys’ fees, that arise from or relate to: (a) your misuse of the Services or the Content; (b) your provision of any User Content or other data to any Brightplate Indemnified Party; (c) your breach of these Terms of Use; (d) your violation or alleged violation of any applicable foreign or domestic federal, state or local laws, rules, and/or regulations; or (e) any infringement or alleged infringement of any intellectual property right or other right of any person or entity. The Brightplate Indemnified Parties will have the right, but not the obligation, to participate through counsel of their choice in any defense by you of any claim as to which you are required to defend, indemnify or hold harmless the Brightplate Indemnified Parties. You may not settle any claim without the prior written consent of the concerned Brightplate Indemnified Parties.

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10: Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BRIGHTPLATE OR ITS LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR LOSS OF PROFITS, REVENUE OR INCOME, OR FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THESE TERMS OF USE OR THE USE OR INABILITY TO USE THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BRIGHTPLATE’S TOTAL AGGREGATE LIABILITY UNDER THESE TERMS OF USE, WHETHER BASED ON BREACH OF WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE GREATER OF: (I) THE AMOUNTS, IF ANY, YOU PAY TO BRIGHTPLATE FOR THE SERVICES; OR (II) TWO HUNDRED DOLLARS ($200).

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11: Geographic Restrictions

Brightplate provides Services that may be subject to professional licensing requirements or other legal or regulatory constraints in some jurisdictions (“Restricted Areas”). To the extent our health coaches are not licensed or otherwise authorized to provide the Services in Restricted Areas Brightplate makes no representation that the Services will be appropriate or available in such areas. Upon enrollment or at any time while you are subject to these Terms of Use Brightplate may ask you to confirm the jurisdiction you will be in when accessing the Services. By accepting these Terms of Use you agree to (a) promptly and accurately confirm the jurisdiction(s) you will be in when accessing the services (b) update immediately if those jurisdictions change. Without prior notice Brightplate herby reserves the right to (a) withhold or terminate some or all of the Services if you attempt to access them from a Restricted Area (b) change the list of areas we deem to be restricted without prior notice (c) use geolocation data to determine your location for purpose of determining whether you are in a Restricted Area.

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If you access the Services from a Restricted Area you do so at your own initiative and risk and are responsible for compliance with all local laws and regulations.

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12: Arbitration                                                                                                                                                                       

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12.1  Binding Arbitration. Any dispute or claim arising in any way from your use of the Services, except for disputes relating to the infringement of our intellectual property rights or the access or use of the Services in violation of these Terms of Service, will be resolved by binding arbitration, rather than in court, but you may assert claims in small claims court if your claims qualify.

 

12.2  No Judge or Jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms of Use as a court would.

 

12.3  Arbitrator and Rules. The arbitration will be conducted before a neutral single arbitrator, whose decision will be final and binding, and the arbitral proceedings shall be governed by the AAA Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer­ Related Disputes. These rules can be found on the AAA website at www.adr.org.

 

12.4  Starting an Arbitration. To begin an arbitration proceeding, you must send us a notice of dispute, in writing, setting forth your name, address and contact information, the facts of the dispute and relief requested. You must send your notice of legal dispute to us at the following address: support@brightplate.com. Brightplate will send any notice of dispute to you at the contact information we have for you.

 

12.5 Format of Proceedings. The arbitration shall be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions.

 

12.6  Fees. If you initiate arbitration, your arbitration fees will be limited to the filing fee set forth in the AAA’s Consumer Arbitration Rules. Unless the arbitrator finds the arbitration was frivolous or brought for an improper purpose, Brightplate will pay all other AAA and arbitrator’s fees and expenses.

 

12.7 Individual Basis. To the fullest extent permitted by applicable law, you and Brightplate each agree that any dispute resolution proceeding will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, you and Brightplate each waive any right to a jury trial. As a result, PROCEEDINGS TO RESOLVE OR LITIGATE A DISPUTE IN ANY FORUM WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS.

 

12.8 Limitation Period. In no event shall any claim, action or proceeding by you or Brightplate be instituted more than one (1) year after the cause of action arose.

 

12.9  Enforcement. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The United Nations Conventions on Contracts for the International Sale of Goods shall have no applicability.

 

12.10  Invalidity. If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or inapplicable, you and Brightplate each agree to the exclusive jurisdiction of the Federal and State courts located in the southern district of New York, and you and Brightplate each agree to submit to the exercise of personal jurisdiction of such courts for the purposes of litigating any applicable dispute or claim.

 

12.11 Opting Out. If you do not want to arbitrate disputes with Brightplate and you are an individual, you may opt out of this arbitration agreement by sending an email to support@brightplate.com within thirty (30) days of the first of the date you access or use the Services.

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13: Miscellaneous

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13.1  Governing Law.  These Terms of Use shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules.

 

13.2 Your Consent to Receive Notices.  As part of using the Services, you agree to receive all terms, notices, disclosures, and other communications that we provide to users in electronic form, including all communications that we are required by law or these Terms of Use to provide to you. You also acknowledge that receipt of these communications in electronic form satisfies any legal requirement that the communications be in writing. You consent to receive electronic notices, disclosures, and other communications or other information that we provide in connection with your registration or enrollment in a Brightplate Program and all communications relating to your access to and use of the Services.

 

13.3 Entire Agreement. These Terms of Use, our Privacy Policy, our Notice of HIPAA Privacy Practices, and any other agreement referenced herein, constitute the entire agreement between you and us with respect to the Services and supersede all prior or contemporaneous communications and proposals (whether oral, written, or electronic) between you and us with respect to the Services. If any provision of these Terms of Use is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Use will remain in full force and effect. The failure of either party to exercise in any respect any right provided for in these Terms of Use shall not be deemed a waiver of any further rights under these Terms of Use.

 

13.4 Injunctive Relief. You agree that a breach of these Terms of Use will cause irreparable injury to Brightplate for which monetary damages would not be an adequate remedy and Brightplate shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.

 

13.5 Assignment. These Terms of Use will inure to the benefit of and will be binding upon each party’s successors and assigns. These Terms of Use and the licenses granted hereunder may be assigned by Brightplate but may not be assigned by you without the prior express written consent of Brightplate. Any attempt by you to assign these Terms of Use without the written consent of Brightplate shall be null and void.

 

13.6 Independent Contractors. Nothing contained in these Terms of Use will be deemed to constitute either party as the agent or representative of the other party or both parties as joint venturers or partners for any purpose.

 

13.7 Modifications. We may occasionally update these Terms of Use. When we do update these Terms of Use, we will also revise the “Last Updated” date at the top of these Terms of Use. If we make changes to these Terms of Use on the Site and we may also send emails to our users who have created an account containing a link to the revised Terms of Use. If you continue to use the Services after we post an update to these Terms of Use, you indicate your acceptance of the updated Terms of Use.  If you disagree with the modified Terms of Use, you should stop using the Services.

 

13.8  Contact Us. If you have any questions regarding these Terms of Use or the Services please contact us at support@Brightplate.com.