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GiTrak - Terms of Service

Welcome to GiTrak, a mobile application that helps you organize your medical records and allows you to log your diet, medications and health symptoms for more transparent and detailed communication with your health care providers to assist in better diagnosis and monitoring of your condition.Welcome to GiTrak, a mobile application that helps you organize your medical records and allows you to log your diet, medications and health symptoms for more transparent and detailed communication with your health care providers to assist in better diagnosis and monitoring of your condition.

In short…

The following key points of the Terms of Service are only brought for your convenience. These key points do not substitute the full Terms which are presented below.

  • The Service. GiTrak is a mobile application that helps to centralize your medical records and allow you to log your diet, medications and health symptoms for more transparent and detailed communication with your health care providers to assist in better diagnosis and monitoring of your condition.

  •  Age. You must be 18 years of age or older in order to access or use the App.

  • Intended Use. The App is not, and is not intended to be, a substitute for an in-presence, qualified professional medical, pharmaceutical or nutritional diagnosis, analysis, advice, guidance or treatment. Always seek the advice of a qualified health care professional for any medical or medicine related issues. In case of a medical emergency, contact your physician or medical emergency dispatch center such as 911 immediately.

  • Prohibited Use. You may not use the Service in any manner that violates applicable law or is objectionable or harmful to us or others.

  • Fees. Initially, the Service will be offered for free. After a certain time, in order to continue using the Service, you will be required to subscribe to the Service. Once you subscribe to a subscription that requires a fee, the Service becomes a fee-based subscription plan that automatically renews at the end of each subscription period, unless you cancel your subscription before the subscription renews. Your payment method will be charged for the periodic fees due upon the start of each renewed subscription period.

  • Disclaimer of Warranty, Limitation of Liability. We are not responsible for any medical diagnosis or making decisions about what food you should eat or medication you should consume. We do not dispense medical, nutrition, or health advice. We do not conduct medical tests, create medical records or diagnose medical conditions. We do not make any guarantee, and make no representations or judgments about the accuracy, adequacy, completeness, credibility, authenticity, validity, integrity or legality of the content of any of the medical records, nutrition or health symptom logs or any diagnosis or recommendation derived therefrom. The Records in the App do not constitute any authorization, confirmation or representation of your actual health condition. We are not healthcare providers and the App does not create such a relationship. We are not party to the creation of the medical records, nutritional or healthy symptom logs entered by you or any of your healthcare providers. As such, we do not make any representations or warranties as about any of those records. The Service is provided for use “as is”. We disclaim all warranties and representations with respect to the Service. To the maximum extent permitted by the applicable law, we – and anyone acting on our behalf – will not be liable for any damage or loss, arising from the use or inability to use the Service

  •  Privacy. Our Privacy Policy- privacy policy link, which is incorporated to these Terms by reference, explains our privacy practices on the App.

  • Intellectual Property. All legal rights in the Service, including all intellectual property rights, belong to us or our licensors. You must maintain in confidence information you are exposed to through your use of the Service relating to its operation, functionality, features, designs and business practices.

  • Data. You are solely and exclusively responsible for all actions you take in response to the Data that the Service makes available to you. You are also responsible for securing all valid consents, notifications and permissions in order to allow us to lawfully process the Data in the manners and for the purposes set forth in these Terms.

  • Indemnity. You agree to indemnify us in case of a third-party claim in connection with your breach of these Terms or infringement or violation of any other person’s rights (including privacy).

  • Governing Law and Dispute Resolution. USE OF THE SERVICE IS GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. MOST DISPUTES BETWEEN US WILL BE DECIDED IN ARBITRATION. YOU CAN OPT OUT OF ARBITRATION UNDER THE TERMS OUTLINED BELOW, IN WHICH CASE DISPUTES WILL BE DECIDED IN COURT.

… and in detail

 

The GiTrak mobile and web application (the “App”) is owned and operated by GI Trak Inc. (the “Company”, “we”, “us” and “our”). Please read carefully the following terms and conditions (the "Terms"). By using, accessing or signing-up to the App, you agree to be bound by these Terms. If you do not agree to the Terms, you may not access or use the App in any way. The Terms include additional provisions that you should carefully read, such as provisions regarding warranty, limitation of liability, indemnification, governing law and jurisdiction.

 

THE APP IS MERELY INTENDED TO HELP YOU TO ORGANIZE YOUR MEDICAL RECORDS AND ALLOW YOU TO LOG YOUR DIET, MEDICATIONS AND HEALTH SYMPTOMS FOR MORE TRANSPARENT AND DETAILED COMMUNICATION BETWEEN YOU AND YOUR HEALTH CARE PROVIDERS TO ASSIST IN BETTER DIAGNOSIS AND MONITORING OF YOUR MEDICAL CONDITION. THE APP IS NOT, AND IS NOT INTENDED TO BE, A SUBSTITUTE FOR AN IN-PRESENCE, QUALIFIED PROFESSIONAL MEDICAL, PHARMACEUTICAL OR NUTRITIONAL DIAGNOSIS, ANALYSIS, ADVICE, GUIDANCE OR TREATMENT. ALWAYS SEEK THE ADVICE OF A QUALIFIED HEALTH CARE PROFESSIONAL FOR ANY MEDICAL OR MEDICINE RELATED ISSUES. IN CASE OF A MEDICAL EMERGENCY, CONTACT YOUR PHYSICIAN OR MEDICAL EMERGENCY DISPATCH CENTER SUCH AS 911 IMMEDIATELY. USING THE APP DOES NOT CREATE OR IMPLY A DOCTOR-PATIENT OR PHARMACIST-PATIENT RELATIONSHIP BETWEEN YOU AND THE COMPANY.

 

ABOUT THE APP

 

The App provides centralized platform for the storage for your medical records and for logging of your medication, dietary choices, and health symptoms. This platform allows for greater transparency and more accurate information sharing with your healthcare providers that is intended to assist those professionals in creating more tailored diagnosis and efficient treatment of your health conditions. The services and functionality provided to you through the App is referred to as the “Service”.

 

AGE RESTRICTION

You must be 18 years old or older to access or use the App. If you are under 18, you must obtain the approval of your parent or legal guardian to access and use the App. By using, accessing or registering with the App, you declare that you are 18 years of age or older or that you have obtained the approval of your parent or legal guardian to access and use the App. We may request additional information to confirm your age and any relevant parental permissions at any time.

 

REGISTRATION PROCESS

 

After downloading the App, you will have the option to create your own App profile by providing your first name, last name, phone number, insurance information, gender and date of birth (the “Profile”). You will also have the option to specify healthcare professionals and care givers to have access to the information contained in the App and the ability to upload records in the App (“Intended Recipients”). After you register, you will also have the opportunity to update your Profile and to add additional information.

 

LICENSE AND USE

 

Users Right to Access the Service. Subject to these Terms, you may access and use the Service through our App, strictly your own personal non-commercial use.

 

License. Subject to these Terms, we grant you a revocable, non-exclusive, non-transferable, and nonsublicensable license, to use the Service and access our App, solely for your non-commercial use or your personal needs.

 

Others Using the Service for You. You may grant others, including your doctor, medical advisors and healthcare providers with access to the information contained in the App as well as the right to upload information to the App as Intended Recipients. Intended Recipients must consent to all agreements, waivers, confidentiality agreements as we request or as is appropriate to the respective regulations of the medical profession and their professional responsibility.

 

YOUR PRIVACY

 

We respect your privacy. Our Privacy Policy (the “Policy”) [link to Privacy Policy], which is incorporated to these Terms by reference, explains our privacy practices on the App.

 

FEES

 

As part of the provision of the Service to you, we will submit a payment request to your health insurance carrier on behalf of your provider. In the event that your health insurance carrier denies the payment request, we will bill you directly on behalf of your provider for the Services provided to you. All fees will be quoted in U.S. Dollars and will be paid by your insurance or you in U.S. Dollars, unless expressly stated otherwise. Fees are payable by wire transfer, check, major credit cards, or a transfer from your bank account. Payment of the fees may be set up to be paid automatically on a monthly basis if you selected to pay directly on a recurring basis. We may, from time to time, and without specific notice to you, add additional payment methods to the then-current payment methods, or cease to use previously supported payment methods. You represent and warrant that you are lawfully permitted to use the selected payment method in connection with the Service and that we may submit requests for payment to your insurance carrier. We may require additional information from you before completing payment transactions. You must keep the billing and insurance information you provide to us current, complete, and accurate, and notify us promptly in case of any change in your billing information. By providing any credit card, online account or bank information, you authorize the Company to automatically charge or debit the selected payment method for the full amount due on a recurring basis (if applicable) until you notify the Company in writing with an alternative, authorized payment method. You will ensure that you have sufficient funds or credit (as applicable) associated with the selected method of payment. You understand that the amounts charged or debited may vary and that this authorization will remain in effect until the expiration or termination of this Agreement. If a payment is returned from a bank account for insufficient or uncollected funds or for erroneous information, the Company may reinitiate the returned debit to the applicable bank account. Any amounts owed to the Company that cannot be collected by debit may be charged to any backup credit card on file for you. All fees are exclusive of all sales, use, excise, value added, withholding and other taxes, and all customs duties and tariffs now or hereafter claimed or imposed by any governmental authority upon your use of the Service will be paid by you. The Company reserves the right to increase fees at any time, although increases in fees will not go into effect until the next renewal of the then-current term. All your payment obligations are non-cancelable and all amounts paid in connection with the Service are non-refundable, except as expressly set forth herein. You are responsible for paying all applicable fees in the event that your insurance carrier denies a claim and does not pay for the Services provided to you. Payment may be processed and handled through relevant third-party payment processors. Any payments processed through third party payment processors are therefore subject not only to this Agreement, but also the terms and conditions of the applicable third-party payment processor pursuant to your agreement with them. You acknowledge that such third-party payment processors may charge you commission. We are not responsible for such commission, which is strictly between you and the relevant payment processor. Fees that we are unable to charge through the payment method you provided is deemed an overdue fee. Failure to settle any overdue fee within twenty (20) calendar days of its original due date will constitute a material breach of this Agreement and, without limiting any remedies available to the Company, the Company may: (i) terminate this Agreement; or (ii) suspend performance of or access to the Service, until payment is made current. Without derogating from any other rights and remedies available to us under applicable law, overdue fees will accrue interest at the lesser of the rate of one and one half percent (1.5%) per month or part thereof, cumulative monthly on the total amount due from the due date until the date of actual payment and the maximum rate permitted by applicable law. You will reimburse us for all legal costs and attorney’s fees we incur in the course of collecting your overdue fees. We may modify, adapt, improve, or enhance the Service, or any of its features, user interface, design or any other aspect related to it, without being obligated to provide you notice thereof.

 

PROHIBITED USE

 

When using the Service, you shall not –

 

  • Breach these Terms or any other applicable rules and instructions that we may convey with respect to the Service;

  • Engage in any activity that constitutes or encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law, including laws governing privacy, data protection defamation, spam and copyright;

  • Interfere with, burden or disrupt the functionality of the Service;

  • Attempt to copy, change, disassemble, reverse engineer, decrypt, frame or translate the Service or Platform or otherwise attempt to learn and derive the source code, structure, or ideas upon which the Service and Platform is based;

  • Attempt to copy, change, delete or alter any of the content provided to you on the Service and any other content provided to you during your use of the App.

  • Breach the security of the Service or publicly identify any security vulnerabilities in it;

  • Circumvent or manipulate the operation or functionality of the Service, or attempt to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Service;

  • Send automated or machine generated queries;

  • Use any manual or automated software, devices, or other processes, including, but not limited to, robots, crawlers, scrapers, spiders and similar applications to collect and compile content from the Service, or send data to the Service including for the purposes of competing with the Service, or in such ways that may impair or disrupt the Service's functionality;

  • Display or embed content from the Service, including by any software, feature, gadget or communication protocol, which alters the content or its design;

  • Use of the Service to post, store or disseminate any type of malicious software, viruses, trojan horses or any other malicious, destructive, disabling code or programs designed to interrupt, permit unauthorized access, destroy or limit the functionality of the Service;

  • Impersonate any person or entity, or making any false statement pertaining to your identity or affiliation with any person or entity;

  • Collect, harvest, obtain or process personal information regarding the Service’s other users or providers;

 

CONTENT AND RECORDS

 

The medical records uploaded by you or your Intended Recipients, (the “Medical Records”) and the nutritional, pharmaceutical and health symptom information that you upload (the “Health Records”, and together with the Medical Records the “Records”) available on the App, all originate from you or your Intended Recipients, not the Company. You may only provide true and accurate Records. We will not, and have no obligation to, verify the accuracy, correctness, or completeness of any Records that you provide. We do not monitor these Records and make no claims as to the accuracy or utility of the Records. You are solely responsible for correctly and accurately identifying and selecting, uploading and logging the Records. We do not guarantee, and makes no representation or judgment about the accuracy, adequacy, completeness, credibility, authenticity, validity, integrity or legality of the Records. We make no recommendations, provide no analysis and do not give medical, pharmaceutical or nutritional advice. The display of Records on the App does not constitute our endorsement, sponsorship, recommendation or encouragement regarding any healthcare provider, diagnosis, nutritional supplement, medication or pharmaceutical company.

 

YOU ARE SOLELY RESPONSIBLE FOR THE CONTENT THAT YOU POST, DISSEMINATE, TRANSMIT, DISCLOSE OR OTHERWISE COMMUNICATE THROUGH, OR TO THE APP, OR WHEN USING THE APP AND FOR THE CONSEQUENCES ASSOCIATED WITH DOING SO.

 

SUPPORT

 

During the Term, we, either directly or with the assistance of third parties, will provide you technical support for technical questions, problems and inquiries regarding the Service, during our regular business days and hours and through the support channels we may indicate on our website. We will attempt to respond to your technical questions, problems and inquiries within a reasonable time. However, we –

 

  • May decline to provide such support for matters that we deem, at our sole discretion, to require unreasonable time, effort, costs or expenses;

  • Make no warranties to any specific response-time or to the successful or satisfactory resolution of the question, problem or inquiry.

 

INTELLECTUAL PROPERTY

 

Our Intellectual Property. All rights, title and interest in and to the Service, including without limitation, patents, copyrights, trademarks, trade names, Service marks, trade secrets and other intellectual property rights and any goodwill associated therewith are the exclusive property of the Company and its licensors. This includes the Service and App’s design, graphics, computer code, “look and feel” and the Company’s domain names.

 

Restrictions. You may not copy, distribute, display or perform publicly, make available to the public or communicate to the public, sublicense, decompile, disassemble, reduce to human readable form, execute publicly, make available to the public, adapt, make commercial use of, process, compile, translate, sell, lend, rent, reverse engineer, combine with other software, modify or create derivative works of the Platform or the Service or any part thereof, in any way or by any means.

 

You may not use any name, mark, logo or domain name that is confusingly similar to our marks, logos and Internet domain names. You must refrain from any action or omission that may dilute or damage our goodwill. You shall not develop any services or products which rely on or make use of the look and feel of our Platform.

 

Confidentiality. The Service consists of our trade secrets, which include practices, processes, designs, and product and pricing schedules not generally known or reasonably ascertainable by others by which we obtain an economic advantage over others. You must maintain in confidence information you are exposed to through your use of the Service relating to its operation, functionality, features, designs and business practices. You must do so in a manner no less protective than you use to protect our own similar assets, but in no event less than reasonable care. You must not use or disclose that information for any purpose other than within your utilization of Service.

 

Feedback. We welcome hearing from you and receiving feedback from you. You may provide us with feedback through the App or by contacting us directly. When you provide us with such feedback, you must not do so in an illegal, threatening, obscene, objectionable, or defamatory manner or in a manner which infringes the intellectual property rights of third parties. When you provide us with feedback you hereby assign all rights in the feedback to us, and we shall be the sole owners of such feedback. Any feedback you provide us is not subject to any confidentiality obligations. You acknowledge and agree that when you provide us with feedback, we will be entitled to use the feedback in an unrestricted manner, for any reason or purpose, including for commercial use, without any obligations to pay you any compensation for the feedback.

 

CHANGES IN THE APP AND TERMINATION

 

Our Right to Change the App. We may, at any time and without prior notice, change the layout, design, scope, features or availability of the App. Such changes, by their nature, may cause inconvenience or even malfunctions. YOU ACKNOWLEDGE AND AGREE THAT WE DO NOT ASSUME ANY RESPONSIBILITY WITH RESPECT TO, OR IN CONNECTION WITH THE INTRODUCTION OF SUCH CHANGES OR FROM ANY MALFUNCTIONS OR FAILURES THAT MAY RESULT THEREFROM.

 

Our Right to Terminate. We may, at any time and in our sole discretion, discontinue or terminate the operation of the App, your access and use of the App and the Services, or any part thereof, temporarily or permanently without any liability. We may also suspend the operation of the App, in whole, or in part, for all users, for periodic maintenance or similar purposes, without any liability. Your Right to Terminate. You may terminate your account at any time. If you chose to terminate, the App will cease to operate immediately. You will still be responsible for any subscription fees or any other charges already billed even if your access to the App has been terminated.

 

Retention of Profile Information and Records. Upon termination, you will have the option to request the deletion of your entire Profile and all Records you have provided us. Even if you do not request the deletion of your Profile and Records, we reserve the right to delete your Profile and Records within a reasonable period of time after termination, as may be allowed by applicable law. Notwithstanding the foregoing, we reserve the right to retain all aggregated and de-identified data, provided that such data does not contain your personally identifiable information.

 

APP AVAILABILITY

 

The availability, quality and functionality of the App depends on various factors, including software, hardware and communication networks, which are provided by third parties, at their responsibility. These factors are not fault-free. WE DO NOT WARRANT THAT THE APP, IN WHOLE OR IN PART, WILL OPERATE WITHOUT DISRUPTION, ERRORS OR INTERRUPTIONS, OR THAT IT WILL BE ACCESSIBLE, OR AVAILABLE AT ALL TIMES OR IMMUNE FROM ERRORS, GLITCHES OR UNAUTHORIZED ACCESS.

 

AMENDMENTS TO THE TERMS

 

The Company may revise these Terms, in whole, or in part, at any time, by putting you on notice of the amended Terms. Your continued use of the App after the effective date of the amended Terms constitutes your consent to the amended Terms. In case of legal requirement, we may also introduce immediate changes to these Terms. If you do not consent to the amended Terms, you must discontinue your use of the App. The latest version of the Terms and its effective date will be accessible on the App or on the Company’s website.

 

DISCLAIMER OF WARRANTY

 

THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. WE AND OUR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, AGENTS AND AFFILIATES (THE “STAFF”) DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, ITS CONTENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, COMPATIBILITY, PERFORMANCE, SECURITY, ACCURACY, ENHANCED GOODWILL OR EXPECTED BENEFITS. WE DO NOT WARRANT THAT (1) THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS IN ANY WAY; (2) THE SERVICE WILL ALWAYS BE AVAILABLE OR FREE FROM MALWARES, COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS; (3) THE QUALITY OF THE SERVICE WILL MEET YOUR EXPECTATIONS; (4) THE DATA PRESENTED THROUGH THE SERVICE WILL BE ACCURATE, BENEFICIAL OR RELIABLE; (5) THE RESULTS OF THE USE OF THE SERVICE WILL BE SATISFACTORY AND WILL FIT YOUR EXPECTATIONS OR REQUIREMENTS. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICE, OR THE CONTENT PRESENTED ON OR THROUGH THE PLATFORM, WHETHER OR NOT MADE BY ANY OF OUR STAFF, WHICH IS NOT EXPRESSLY CONTAINED IN THESE TERMS, SHALL BE DEEMED TO BE A WARRANTY BY THE INVOLVED PERSONS FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF OUR STAFF WHATSOEVER. YOU AGREE AND ACKNOWLEDGE THAT THE USE OF THE SERVICE IS ENTIRELY, OR AT THE MAXIMUM PERMITTED BY THE APPLICABLE LAW, AT YOUR OWN RISK.

 

LIMITATION OF LIABILITY

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR STAFF, SHALL NOT BE LIABLE, FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, STATUTORY, INCIDENTAL OR CONSEQUENTIAL DAMAGE (INCLUDING LOSS OF PROFIT AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY, ARISING FROM, OR IN CONNECTION WITH THE CONTENT, THE USE OF, OR THE INABILITY TO USE THE SERVICE OR ITS FEATURES, OR FROM ANY FAILURE, ERROR, OR BREAKDOWN IN THE FUNCTION OF THE SERVICE, OR FROM ANY FAULT, OR ERROR MADE BY OUR STAFF, OR FROM YOUR RELIANCE ON DATA AVAILABLE ON OR THROUGH THE SERVICE, OR FROM ANY DENIAL OR CANCELATION OF YOUR USER ACCOUNT, OR FROM RETENTION, DELETION, DISCLOSURE AND ANY OTHER USE OR LOSS OF YOUR DATA ON THE SERVICE. IN ANY EVENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL, MAXIMUM AND AGGREGATE LIABILITY TO YOU FOR DIRECT DAMAGES SHALL BE LIMITED TO THE GREATER OF (A) $1,000 OR (B) THE FEES YOU PAID US (IF ANY) IN THE TWELVE MONTHS PRECEDING THE EVENT PURPORTEDLY GIVING RISE TO THE CLAIM.

 

INDEMNIFICATION

 

To the maximum extent permitted by law, you will indemnify, defend and hold harmless, us and our Staff, at your own expense and immediately after receiving a written notice thereof, from and against any damages, losses, costs and expenses, including attorney’s fees and legal expenses, resulting from any plea, claim, allegation or demand, arising from, or in connection with your use of the App and the Service, the Records you submit, your breach of the Terms, or your violation or infringement of any other person’s rights in connection with the App.

 

APPLICABLE MARKETPLACE

 

Your use of the App may be subject to additional third party terms and conditions that govern that application marketplace from which you downloaded the App, such as Google Play or Amazon Appstore for Android. Those other third parties may be beneficiaries of these Terms, pursuant to those marketplace’s terms. Such other third parties are not responsible for providing maintenance and support services with respect to the App. The following terms apply if you downloaded an App from Apple's App Store. You and us agree and acknowledge as follows: These Terms are concluded between yourself and us, and not with Apple Inc. ("Apple"). Apple is not responsible for the App. In the event of a conflict between these Terms and the App Store Terms of Service then the App Store Terms of Service will prevail, solely with respect to the conflicting provisions. The license granted to you for the App is limited to a non-transferrable license to use the App on any iOS Products that you own or control, and as permitted by the Usage Rules set forth in the App Store Terms of Service, except that such App may be accessed, acquired, and used by other accounts associated with the purchaser via Family Sharing. In the event of a failure to conform to any applicable warranty (if any warranty is applicable), you may notify Apple, and Apple will refund the purchase price for the App to you (if you paid any). Apple has no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, will not be at Apple’s responsibility. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including (i) product liability claims, (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation. In the event of any third party claim that the App or your possession and use of the App infringes that third party’s IP Rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such infringement claim. You must comply with applicable third party terms of agreement when using the App (e.g. you must not be in violation of your wireless data services agreement when you use the App). Apple and Apple’s subsidiaries are third party beneficiaries of these Terms. 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 a third party beneficiary thereof. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.

 

GOVERNING LAW, JURISDICTION AND DISPUTE RESOLUTION

 

Regardless of your place of residence or where you access or use the Service from, these Terms and your use of the Service will be governed by and construed solely in accordance with the laws of the State of New York, excluding any otherwise applicable rules of conflict of laws, which would result in the application of the laws of a jurisdiction other than the State of New York. ANY AND ALL DISPUTES, CLAIMS OR CONTROVERSIES BETWEEN YOU AND COMPANY REGARDING THESE TERMS OR THE USE OF THE SERVICE, WHICH ARE NOT AMICABLY RESOLVED, SHALL BE SETTLED THROUGH BINDING ARBITRATION (RATHER THAN IN COURT) BY TELEPHONE, ONLINE OR BASED SOLELY UPON WRITTEN SUBMISSIONS WITHOUT IN-PERSON APPEARANCE, ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (AAA), UNDER ITS CONSUMER ARBITRATION RULES (WHICH ARE AVAILABLE AT WWW.ADR.ORG). JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. HOWEVER, YOU MAY LODGE CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIM QUALIFIES. THE FEDERAL ARBITRATION ACT AND FEDERAL ARBITRATION LAW APPLY TO THESE TERMS. 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 THESE TERMS AS A COURT WOULD. PAYMENT OF FILING, ADMINISTRATION AND ARBITRATOR FEES WILL BE GOVERNED BY THE AAA'S CONSUMER ARBITRATION RULES. THESE FEES WILL BE SHARED AS FOLLOWS: ONE THIRD BY YOU AND TWO THIRDS BY US, UNLESS THE ARBITRATOR: (I) DETERMINES THAT THE CLAIMS ARE FRIVOLOUS, IN WHICH CASE THE CLAIMANT SHALL BEAR ALL SUCH FEES ARISING FROM THE FRIVOLOUS CLAIM; OR (II) DETERMINES THAT THE FEES SHOULD BE ALLOCATED DIFFERENTLY. YOU AND COMPANY HEREBY ACKNOWLEDGE, AGREE AND COVENANT THAT ANY DISPUTES SHALL ONLY BE ADJUDICATED IN ARBITRATION ON AN INDIVIDUAL BASIS, AND NOT IN CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE PROCEEDINGS. YOU MAY OPT-OUT OF THE ABOVE ARBITRATION CLAUSE BY EMAILING US TO [info@gitrak.com], WITHIN 21 DAYS OF YOU ENTERING INTO THESE TERMS FOR THE FIRST TIME, AN OPT-OUT NOTICE THAT IDENTIFIES YOURSELF AND CLEARLY SETS OUT YOUR CHOICE TO OPT OUT OF DISPUTE RESOLUTION BY ARBITRATION. IN CASE OF SUCH OPT-OUT, ANY AND ALL DISPUTES, CLAIMS OR CONTROVERSIES BETWEEN YOU AND US REGARDING THESE TERMS OR THE USE OF THE SERVICE, WHICH ARE NOT AMICABLY RESOLVED, SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS IN NEW YORK COUNTY IN THE STATE OF NEW YORK, USA. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION, EITHER PARTY MAY FILE: (A) AN IMPLEADER CLAIM AGAINST THE OTHER PARTY IN ANY COURT OF COMPETENT JURISDICTION ADJUDICATING A THIRD PARTY CLAIMS THAT IS SUBJECT TO THE INDEMNIFICATION PROVISIONS HEREIN; (B) IN ANY COURT OF COMPETENT JURISDICTION A CLAIM CONCERNING THE INFRINGEMENT (OR ALLEGED INFRINGEMENT) OF INTELLECTUAL PROPERTY RIGHTS (INCLUDING COPYRIGHTS AND TRADE SECRETS).

 

GENERAL

Assignment. You may not assign or transfer your rights and obligations under these Terms without our prior written consent. Any attempted or actual assignment by you, without our prior written consent, shall be null and void.

 

Changes in ownership. In the event of a sale, merger, or acquisition, we may, upon notice to you and without obtaining your consent, assign and delegate these Terms, including all of our rights, performances, duties, liabilities and obligations contained herein, to a third party, and we will be released from all rights, performances, duties, liabilities and obligations contained herein.

 

Severability. If any provision of these Terms is held to be illegal, invalid, or unenforceable by a competent court, then the provision shall be performed and enforced to the maximum extent permitted by law to reflect as closely as possible, the original intention of that provision, and the remaining provisions of these Terms shall continue to remain in full force and effect.

 

Interpretation. The section headings in these Terms are included for convenience only and shall take no part in the interpretation or construing of these Terms. Whenever used in these Terms, the term "Including", whether capitalized or not, means without limitation to the preceding phrase. All examples and e.g. notations are illustrative, not exhaustive.

 

Entire agreement. These Terms constitute the entire agreement between you and us concerning the subject matter herein and supersede all prior and contemporaneous negotiations and oral representations, agreements and statements.

 

Survival. The following clauses in these Terms will survive any termination or expiration of the Terms: Currency and Taxes; No Refunds; Our Intellectual Property; Restrictions; Confidentiality; Disclaimer of Warranty; Limitation of Liability; Indemnification; Governing Law, Jurisdiction and Dispute Resolution.

 

Waivers. Except asindicated in “Changing these Terms” above, no other waiver, concession, extension, representation, alteration, addition or derogation from these Terms by us, or pursuant to these Terms, will be effective unless consented to explicitly and executed in writing by our authorized representative. Failure on our part to demand performance of any provision in these Terms shall not constitute a waiver of any of our rights under these Terms.

 

Relationship. These Terms do not create any agency, partnership, employment or fiduciary relationship between you and us.

 

CONTACT US

 

At any time, you may contact us with any question, request, comment or complaint that you may have with respect to the Service or these Terms, at [info@gitrak.com] or through our phone support as indicated on our website at [https://www.mybelly.health].

 

Effective Date: October 1, 2019

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