Last Updated: 12.18.23

 

THESE TERMS AND CONDITIONS GOVERN THE BYHEARTCORPORATE WELLNESS PROGRAM (THE “PROGRAM”).

PLEASE READ THESE TERMS AND CONDITIONS AND THE RELATED BYHEART TERMS OF SERVICE LOCATED AT https://byheart.com/pages/terms-and-conditions AND THE BYHEART PRIVACY POLICY LOCATED AT https://byheart.com/pages/privacy-policy, (BOTH OF WHICH ARE INCORPORATED HEREIN BY THIS REFERENCE) BEFORE PARTICIPATING IN THE PROGRAM. BY USING PARTICIPATING IN THE PROGRAM, YOU AGREE TO THESE TERMS AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER INCLUDED IN THE TERMS OF SERVICE. THIS AFFECTS YOUR RIGHTS ON HOW TO RESOLVE DISPUTES WITH BYHEART.

1. INTRODUCTION

The Program is corporate wellness benefit program operated by or on behalf of ByHeart Inc. (“ByHeart”).  The Program provides eligible corporate organizations who register with the ByHeart (“Members”) with the opportunity to offer discounts on ByHeart products to employees of their respective organizations. These Terms and Conditions govern the Program along with any other terms or policies incorporated by reference into these Terms and Conditions.  In the event of any conflict or inconsistency between these Terms and Conditions and the terms of any other policies incorporated herein, these Terms and Condition will prevail, govern and control with respect to any matters pertaining to the Program and the other policies will prevail, govern and control with respect to all other matters.  Please read these Terms and Conditions carefully before participating in the Program. Your participation in the Program indicates that you have read, understood, and unconditionally consent and agree to these Terms and Conditions. If you do not agree to these Terms and Conditions, you may not participate in the Program. If you are accepting these Terms and Conditions on behalf of your employer, you represent and warrant that you have the authority to enter into these Terms and Conditions on behalf of your employer and to bind your employer to these terms.

The Program is open only to businesses that operate in the United States that are invited to participate in the Program by ByHeart and who register to participate in the Program.  Registration is free.  To participate in the Program, submit the information requested on the registration page and confirm your agreement to these Terms and Conditions.  Once you complete and submit all of the registration information, a Program account (each, an “Account”) will be created for each Member. All registration information must be completed in full. Memberships can only be used by an authorized representative of the Member entity listed on the Account.

3. CORPORATE BENEFIT

ByHeart will provide Program members with a unique discount code (each, a “Code”).  Members are authorized to distribute the Codes to their employees for use on purchase of ByHeart products through the ByHeart website.  The Codes will be subject to additional terms and conditions (the “Code Terms”) that may be communicated from time to time by ByHeart to each Member.  Each Member agrees to display the Code Terms in a prominent manner at the same time it distributes the Codes to its employees.  Each Member agrees to communicate any additional or different terms to employees upon ByHeart’s reasonable request. The expiration date for each Code will be communicated to each Member by ByHeart.

Redemption of Codes are subject to availability as determined by ByHeart in its sole discretion. ByHeart reserves the right to modify, amend or revise the Codes available or the Code Terms. Members may not rely on continued Code availability. Codes are non-assignable and non-transferable and may not be bartered or sold. Any Codes assigned, transferred, bartered or sold in violation of these Terms and Conditions may be confiscated or cancelled.  All details and restrictions of the Codes not specified in the Code Terms will be determined by ByHeart in its sole discretion. Member employees who redeem the Codes shall be solely responsible for all federal, state, and/or local taxes, shipping, and the balance of any amounts due for any ByHeart product or subscription.

Codes have no cash value and may not be redeemed for cash and may not be sold, auctioned, bartered, brokered, purchased, transferred, assigned or used to engage in any gambling activity. Any Codes obtained in this manner by any person or entity will be considered to have been fraudulently obtained and deemed void and such Points may be confiscated or cancelled. Codes must be redeemed in accordance with these Terms and Conditions and the Code Terms. ByHeart also reserves the right, in its sole discretion, to determine and modify, at any time, the value of Codes or the structure of the offers available using the Codes.  Codes cannot be used in combination with any other discount, coupon or offer unless specifically allowed by the terms of a specific promotion. 

4. BYHEART TRADEMARKS.

As used herein, the term “ByHeart Marks” shall mean ByHeart’s logo, the logo of each ByHeart product and all other trademarks, service marks, trade names, logos or other intellectual property provided to Member by ByHeart for use hereunder.  ByHeart hereby grants Member a limited, revocable, personal, non-sublicensable, non-exclusive license to use the ByHeart Marks solely for Member’s internal business purposes to identify the Codes to Member employees in accordance with the “Specifications” (as defined below).  ByHeart retains the right to pre-approve each Member’s use of the ByHeart Marks. The ByHeart Marks remain the property of ByHeart. Any and all goodwill arising out of any Member’s use of the ByHeart Marks shall inure to the exclusive benefit of ByHeart. Each Member agrees to promptly discontinue all uses of the ByHeart Marks at ByHeart’s request.  Each Member agrees that all uses of the ByHeart Marks will comply with the following “Specifications”: (1) it will not present or portray ByHeart, any ByHeart-branded product or service (each, a “ByHeart Product”), or any ByHeart officers, directors, employees, or representatives, in a manner that a reasonable person would view as derogatory or disparaging, and (2) it will not depict any ByHeart Product as if it does not function properly.

5. MEMBER TRADEMARKS.

Each Member hereby grants ByHeart the right and license to use, publish, reproduce, transmit, license, exhibit, perform, and distribute the “Member Marks” (as defined herein) to identify Member as a participant in the Program in a public manner, including on ByHeart’s public website, social media channels, and in public relations and marketing materials.  As used herein, the term “Member Marks” shall mean Member’s name along with the trademarks, service marks, tradenames, nickname(s), trade dress, logos, mascot, name(s), symbols, emblems, designs, colors, catch phrases, slogans and/or other designations of, for or relating to Member.

6. MODIFICATION AND TERMINATION.

ByHeart may modify any of these Terms and Conditions. The Program has no predetermined termination date and may continue until such time as ByHeart decides to terminate the Program. ByHeart may, in its sole discretion, modify or terminate the Program, in whole or in part, at any time and for any reason or no reason at all, with notice on the ByHeart website and/or via email to the Member’s email address currently on file with ByHeart for their Account.

If ByHeart amends these Terms and Conditions, it will revise the “last updated” date located at the top of these Terms and Conditions. For changes to these Terms and Conditions that ByHeart considers to be material, ByHeart may place a notice on the Website by revising the link on the home page to read substantially as “Updated Program Terms and Conditions” for an amount of time that we determine in our discretion. If a Member continues to participate in the Program by offering Codes to employees, allowing employees to redeem Codes or in any other way after these Terms and Conditions have been changed, you will be deemed to have read, understood and unconditionally consented to and agreed to such changes. The most current version of these Terms and Conditions will be available on the ByHeart Website and will supersede all previous versions of these Terms and Conditions.

If ByHeart decides in its sole discretion to discontinue the Program, Members will have approximately thirty (30) days or an amount of time deemed reasonable by ByHeart in its sole discretion from the date Program termination is announced to use their remaining Codes. Any Codes that have been distributed to Members at the time of termination will be forfeited and no compensation will be provided. ByHeart may cancel your membership, cancel issued Codes, alter or suspend your membership privileges at any time with immediate effect if ByHeart determines in its sole discretion that you, or any of your employees, (a) have acted in a manner inconsistent with applicable laws or ordinances; (b) acted in a fraudulent or abusive manner; (c) breached any of these Terms and Conditions; (d) engaged in any fraud or abuse concerning Codes, Code usage or Code redemption; or (e) engaged in any conduct or act that causes ByHeart to terminate or suspend Member’s access to the ByHeart website. ByHeart may also take appropriate administrative or legal action if any of the items listed above occurs. Nothing contained in these Terms and Conditions shall limit ByHeart in its exercise of any legal or equitable rights or remedies.

ByHeart reserves the right to terminate the membership of any Member if (i) any Member uses his or her account in violation of these terms, as ByHeart determines in its sole discretion; or (ii) a Member does or omits to do an act or becomes involved in a situation which in the reasonable opinion of ByHeart, brings either the Member or ByHeart into public disrepute, contempt, scandal or ridicule, offends public opinion, or damages or reflects unfavorably upon the reputation of ByHeart, and the effect of which, in the opinion of ByHeart, damages ByHeart’s brand or goodwill.

7. GENERAL TERMS AND CONDITIONS.

CODES DO NOT CONSTITUTE PROPERTY OF A MEMBER OR ANY MEMBER EMPLOYEES AND HAVE NO VALUE OUTSIDE OF THE PROGRAM. CODES ARE CREDITS THAT BYHEART MAY REVOKE AT ANY TIME AS SET FORTH HEREIN. CODES ARE NOT TRANSFERABLE UPON DEATH, AS PART OF A DOMESTIC RELATIONS MATTER OR OTHERWISE. Each Member is responsible for ensuring that the information in his/her Account is accurate and is kept current. Any attempt by any person (including Member or any Member employee) to undermine the legitimate operation of the Program may be a violation of criminal and civil law, and, should such an attempt be made, ByHeart reserves the right to seek damages from any such person to the fullest extent permitted by law. ByHeart’s failure to enforce any of these Terms and Conditions shall not constitute a waiver of the affected provision, or any other provision. All questions or disputes regarding eligibility for the Program, the use of Codes, or a Member’s compliance with these Terms and Conditions will be resolved by ByHeart in its sole discretion.

8. PROGRAM MALFUNCTIONS AND CONDUCT.

Officers, directors and employees of ByHeart and its parent, subsidiaries, divisions and affiliates, (each, a “Program Entity”, and collectively, the “Program Entities”) are not responsible for lost, interrupted, inaccessible or unavailable networks, servers, satellites, Internet Service Providers, websites, or other connections; or for miscommunications, failed, jumbled, scrambled, delayed, or misdirected computer, telephone or cable transmissions; or for any technical malfunctions, failures, or difficulties, or other errors of any kind or nature; or for the incorrect or inaccurate capture of information, or the failure to capture any information. Additionally, the Program Entities are not responsible or liable for any computer, programming, printer errors or the issuance of any unintended Codes or other benefits. In no event will Program Entities be liable for, and Members expressly release the Program Entities from any claims as to the issuance, use, or redemption of any Codes. If, for any reason, the Program is not capable of running as planned, including, due to errors of any kind or nature, infection by computer virus, bugs, tampering, unauthorized intervention, fraud, technical failures, or any other causes beyond the control of ByHeart which corrupt or affect the administration, security, fairness, integrity or proper conduct of the Program, ByHeart reserves the right in its sole discretion to cancel, terminate, modify, or suspend the Program or otherwise respond to the circumstances as ByHeart deems appropriate. In the event ByHeart is prevented from continuing with the Program as contemplated herein by any event beyond its control, including but not limited to fire, flood, natural or man-made epidemic of health of other means, earthquake, explosion, labor dispute or strike, act of God or public enemy, satellite or equipment failure, riot or civil disturbance, terrorist threat or activity, war (declared or undeclared) or any federal state or local government law, order, or regulation, public health crisis, order of any court or jurisdiction, or other cause not reasonably within ByHeart’s control (each a “Force Majeure” event or occurrence), ByHeart shall have the right to modify, suspend, or terminate the Program, in whole or in part.

Any attempts by any Member or any Member employees to access the Program via a bot script or other brute-force attack shall result in that Member becoming ineligible to participate in the Program. ByHeart, in its sole discretion, reserves the right to disqualify and terminate participation of any Member found (or as a result of any Member’s employees found) to be (i) tampering with the operation of the Program (ii) acting in violation of these Terms and Conditions (iii) violating the Terms and Conditions of the ByHeart website (iv) acting in an unethical or disruptive manner (v) acting with intent to annoy, abuse, threaten or harass ByHeart, its representatives or any other Member or their employees  in any manner related to the Program or (vi) or tampering with, altering, or attempting to alter Codes.

9. MEMBER REPRESENTATIONS AND WARRANTIES.

Each individual accessing the Program represents and warrants that he or she has the power and authority to agree to these Terms and Conditions in his or her individual capacity and on behalf of such person’s employer, if such individual is accessing the website in connection with his or her professional duties.  Each Member participating in the Program represents and warrants that: (i) Member will comply with these Terms and Conditions and the Code Terms; (ii) any materials created by the Member shall comply with all applicable laws, rules and regulations and shall not violate or infringe upon the rights of any third party and will properly disclose the Code Terms; and (iii) ByHeart’s use of the Member Marks in accordance with these Terms and Conditions will not violate or infringe upon the rights of any third party.

10. MEMBER INDEMNIFICATION.

Each Member agrees to defend, indemnify and hold the Program Entities harmless from and against any and all third party claims, damages, liabilities, costs and expenses, including but not limited to reasonable attorney’s fees and expenses (collectively, “Costs”) arising from or relating to such Member’s breach or allegation that, if true, would constitute a breach of such Member’s representations, warranties, covenants or obligations under these Terms and Conditions and any claims from such Member’s employees related to the distribution, use, or redemption of the Codes.

11. LIMITATION OF LIABILITY.

This Program is provided on an “AS IS” basis and without warranty, guaranty, or representation of any kind, expressed or implied, including without limitation, any implied warranty of merchantability, fitness for a particular purpose and non-infringement. ByHeart is not responsible for any assurances, guarantees, representations or warranties made or implied by any parties associated with or involved in this Program. By participating in the Program, each Member accepts all responsibility for, and hereby indemnifies and holds harmless the Program Entities, from and against any claims that may arise from actions taken by such Member or for any unauthorized access to Member’s Account by any third party, for the acts of each Member’s employees, and for claims arising from the use of the Member Marks in accordance with these Terms and Conditions.

UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE PROGRAM ENTITIES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE PROGRAM, EVEN IF ANY OR ALL OF THE PROGRAM ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE SUCH EXCLUSIONS MAY NOT APPLY TO YOU.

Notwithstanding any other provision of these Terms and Conditions, in the event there is a direct conflict between these Terms and Conditions and the ByHeart website Terms and Conditions or the ByHeart website Privacy Policy, these Terms and Conditions will govern, control and prevail as to the Program, including but not limited to those Terms and Conditions dealing with limitation of liability, arbitration, governing law and jurisdiction.

12. PRIVACY.

Unless otherwise indicated in these Terms and Conditions, by registering for and/or otherwise participating in the Program, Members agree that ByHeart will use the personal information collected about them in connection with the Program as set forth in ByHeart’s online privacy policy.

If any provision of these Terms and Conditions is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of these Terms and Conditions, which will otherwise remain in full force and effect.

13. DISPUTE RESOLUTION.

THE ONLINE TERMS OF SERVICE THAT ARE INCORPORATED INTO THESE PROGRAM TERMS AND CONDITIONS CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION AND JURY TRIAL WAIVER CLAUSES, WHICH ARE APPLICABLE TO ALL MEMBERS OF THE PROGRAM.