Last Updated August 14, 2023

BYHEART, INC. (“ByHeart,” “we,” “us,” or “our”) provides its services (described below) to you through its websites located at www.byheart.com and www.cluster.byheart.com (together, the “Site”) and related services, subject to the following Terms of Service (as amended from time to time, the “Terms”).

PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SITE. By accessing and using the Site, you agree to be bound by and to use the Site in accordance with these Terms, along with our Privacy Policy and all other terms and policies that appear on the Site and that may apply to specific sections of the Site or to any content, functionality, or services offered on or through the Site.

PLEASE READ: THESE TERMS CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER (SECTION 18). READ CAREFULLY, INCLUDING YOUR RIGHT, IF APPLICABLE, TO OPT OUT OF ARBITRATION. EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 18 BELOW, OR WHERE PROHIBITED BY LAW, BY ENTERING INTO THESE TERMS YOU EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND BYHEART WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU HEREBY WAIVE YOUR RIGHT
TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

IF YOU DO NOT WISH TO BE BOUND BY ANY OF THESE TERMS, YOU MAY NOT USE THE SITE OR THE SERVICES. Accessing the Site in any manner, whether automated or otherwise, constitutes use of the Site and your agreement to be bound by these Terms. In addition, when you use any of the current or future functionalities or services offered on or through the Site, you will also be subject to the guidelines, terms, conditions, and agreements applicable to those functionalities or services. If these Terms are inconsistent with the guidelines, terms, and agreements applicable to those functionalities or services, these Terms will control.

The Site offers users a convenient, on-line way to buy ByHeart products. The Site may also contain general information about health and wellness, which is for informational purposes only. BYHEART IS NOT A PROVIDER OF CLINICAL ADVICE.  ByHeart and its subsidiaries and affiliates, directors, employees, agents, and representatives are not engaged, through this Site, in providing any medical treatment, diagnosis, advice, or service that creates a physician-patient relationship or otherwise constitutes the practice of medicine or another licensed profession. If you have any concerns or questions about your health, you should always consult with a physician or other healthcare provider. Do not disregard, avoid, or delay obtaining medical or health related advice because of information you may have obtained from the Site or because of any inference you may have drawn from any information contained herein. If you think you, your baby, or another person may have a medical emergency, call 9-1-1 or your local emergency phone number immediately.

We reserve the right to update, change, or otherwise alter these Terms or to impose new conditions on use of the Site at any time and for any reason, without prior notice. When we update, change, or otherwise modify these Terms, we will post the revised Terms on the Site. By continuing to use the Site after we post any such update, change, or alteration, you accept the Terms as modified and agree to be bound by them. For this reason, we encourage you to review these Terms whenever you access or use the Site. We reserve the right to enforce the Terms strictly, but are not under any obligation to do so. 

BY CLICKING “SIGN UP” YOU AGREE TO OUR WEBSITE PRIVACY POLICY AND TERMS & CONDITIONS.

 

TABLE OF CONTENTS

I. Use of the Site

II. ByHeart Product Labeling

III. Product Reviews

IV. Terms of Sale

V. Refund Policy

VI. Restrictions on Use

VII. Limited License

VIII. Errors, Inaccuracies, and Omissions

IX. External Sites

X. Personal Information

XI. Notice and Procedure for Making Claims of Copyright Infringement

XII. Other Prohibited Uses

XIII. Disclaimer of Warranties

XIV. Limitation on Liability

XV. Indemnity

XVI. Compliance with Applicable Laws

XVII. Accessibility

XVIII. Dispute Resolution, Arbitration Agreement, and Class Action Waiver – IMPORTANT – PLEASE REVIEW AS THIS MAY AFFECT YOUR LEGAL RIGHTS 

XIX. Statute of Limitations

XX. Termination

XXI. Entire Agreement

XXII. Severability and Survival

XXIII. California Consumer Notice

XXIV. Contact Us 

 

I. Use of the Site

A. Your Use 

B. Site Content

ALL OF THE SITE CONTENT, INCLUDING TEXT, PHOTOGRAPHS, IMAGES, MESSAGES, AUDIO OR VIDEO CLIPS, ARTICLES, POSTS, FORUM POSTINGS, AND ANY OTHER MATERIALS ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT A SUBSTITUTE FOR PROFESSIONAL CLINICAL ADVICE OR TREATMENT OR AN ENDORSEMENT, REPRESENTATION, OR WARRANTY THAT ANY PARTICULAR MEDICATION, FORMULA, PRODUCT, OR TREATMENT IS SAFE, APPROPRIATE, OR EFFECTIVE FOR YOU, YOUR BABY, OR ANY OTHER PERSON.

You acknowledge that use of the Site or the services for real or perceived emergency medical needs is not recommended. If you, your baby, or another person experiences a medical emergency, please call 9-1-1 OR YOUR LOCAL EMERGENCY PHONE NUMBER immediately.

C. User Accounts

By using this Site, you agree that you are at least 13 years of age. If you are not yet 18 years old, you must have the permission of an adult to use this Site and agree to these Terms, and that adult must be a parent or legal guardian who is willing to be responsible for your use of this Site. The Site is not intended to be used by children under the age of 13, and children under the age of 13 are not to submit any Personally Identifying Information through the Site. In addition, you may only establish an account if you are eighteen (18) years of age or over.

You may be required to establish and use an account (“Account”), which may be hosted by this Site or on a third-party platform. In addition to your name and contact information, you may be required to submit a valid credit card number, billing address, and related billing information in connection with your Account (collectively, “Account Information”). When you register for an Account you must: (i) provide accurate and truthful Account Information; and (ii) promptly update such Account Information as necessary to keep your registration information, including your name, contact information (e.g., billing address and email address), credit card numbers, and expiration dates, current and accurate, so that we can complete your transactions and contact you as needed.

By establishing an Account, you represent and warrant that you have the right and are authorized to provide the information that you provide when you register for the Account. The data you enter into the Account and use when interacting with any content, functionality, and services offered on or through the Site is assumed to be true and correct. You are responsible for maintaining the confidentiality of the information associated with your Account, including your password, and for restricting access to such information and to your computer. You may not transfer or share your Account password with anyone or create more than one Account. All activities that occur under your Account or password shall be your sole and exclusive responsibility. ByHeart reserves the right to take any and all action that it deems necessary or reasonable regarding the security of the Site and your Account Information. You may not use anyone else’s account at any time.

 

II. ByHeart Product Labeling

Unless stated otherwise, product labels, descriptions, and names originated in the United States. Products may not be available in all countries and may require a prescription from a healthcare professional.

 

III. Product Reviews and Social Media Interactions

Before you post a review or interact with us on social media, remember:

Don’t spam or hate.

Don’t leave disparaging or misleading comments.

Do be kind and respectful.

You give us permission to use your name, product reviews, publicly available social media interactions, and information about your use of ByHeart products in connection with ads, offers, and other sponsored or commercial content, without any compensation to you. 

You agree to comply with ByHeart’s policies whenever posting a product review on the Site. ByHeart may moderate product reviews to verify compliance with its policies. This moderation may be automatic and may be conducted by ByHeart or a third party. Moderation may result in deletion of product reviews and revocation of posting privileges.

 

IV. Terms of Sale

The Site is intended for use by individual consumers only. Purchases are not intended for use by resellers or wholesalers unless ByHeart gives advance express written consent.

Pricing for products is in U.S. Dollars and is subject to change at any time without prior notice. ByHeart does not offer price protection or refunds in the event of promotions or price decreases. Unless otherwise stated, shipping and taxes will be charged appropriately according to the state to which the product will be shipped. Products can be shipped to all 50 United States at this time.

Purchases on the Site may be handled by a third-party partner, Shopify, which may require you to create an account. By placing an
order on the Site, you agree to be bound by ByHeart’s Terms of Service and Privacy Policy in addition to Shopify’s Terms of Service, Privacy Policy, and any other applicable policies. Shopify is not owned, operated, or controlled by ByHeart. ByHeart disclaims all liability and responsibility for Shopify, including, without limitation, with respect to its privacy and security practices and policies. You accept all risk associated with your use of Shopify, which is subject to your own independent relationship with Shopify.

ByHeart reserves the right to (i) refuse any order you place with us (ii) terminate any sale of any product made on the Site or on any third party partner platform (e.g., Shopify), or (iii) otherwise hold any order you place without notice to you. We may, in our sole discretion, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include, but are not limited to, orders placed by or under the same Account, which may be hosted by this Site or on a third-party partner platform (e.g., Shopify), the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the email and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by resellers, wholesalers, or other non-authorized third-party distributors.

 

V. Refund Policy

We will never knowingly disappoint you.  If you are unhappy with your formula purchase for any reason, please contact hello@byheart.com to obtain a refund of your full purchase price.  Any promotional offers that were valid at the time of an order may be deducted from the refund amount. All refunds will be credited to the payment method you used to make the original purchase.

 

VI. 
Restrictions on Use

All content contained on the Site (collectively, “Content”)—such as text, graphics, logos, icons, images (including photographs), audio and video clips, digital downloads, data compilations, software, posts, and forum postings—is the property of ByHeart or the property of ByHeart’s partners, affiliates, licensors, or licensees, and the compilation
of the Content on the Site is our exclusive property, protected by the laws of the United States and all non-domestic and international laws, treaties, and conventions that apply to the use of intellectual property. Likewise, all software used on the Site is our property or the property of our software suppliers and is protected by the laws of the United States and all non-domestic and international laws, treaties, and conventions that apply to the use of intellectual property.

Any trademarks, service marks, graphics, logos, page headers, icons, scripts, and trade names (each, a “Mark”) contained on the Site are proprietary to ByHeart and/or our affiliates, licensors, and licensees. Our Marks may not be used in connection with any product or service that is not ours in any manner that is likely to cause confusion among users regarding its source or that disparages or discredits either us or anyone else. All other Marks not owned by us that appear on the Site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.

All rights not expressly granted herein are reserved.

 

VII. Limited License

We grant you a limited, non exclusive, and nontransferable right to access the Site and use the services solely for your personal consumer use and only as permitted under these Terms and any separate agreements that you may have entered into with us. No Site Content, Content of or provided by any other user, or any other Internet site owned, operated, licensed, or controlled by us may be copied, reproduced, republished, downloaded (other than page caching), uploaded, posted, transmitted, or distributed in any way, or sold, resold, visited, or otherwise exploited for any commercial purpose, except that you may, from time to time, download and/or print one copy of individual pages of the Site for your personal, non-commercial use, provided that you: (i) keep intact all copyright, trademark, and other proprietary rights notices; (ii) do not modify any of the Content, including Content submissions provided by other users; and (iii) do not use any Content in a manner that suggests an association with any of ByHeart’s products, services, or brands. Your use of any Content on any other website or computer environment is strictly prohibited. The limited license granted to you does not include, and specifically excludes, any rights or assumed rights to: (i) resell or make any commercial use of the Site or any Content; (ii) make any derivative use of the Site or Content; (iii) download or copy Content or Account Information for the benefit of anyone else; or (iv) use any form of data mining, robots, or similar data gathering and extraction tools. You may not frame, or utilize framing techniques to enclose, any Mark, Content, or other proprietary information, or use any meta tags or any other “hidden text” utilizing any such intellectual property, without our and each applicable owner’s express written consent. Any unauthorized use automatically terminates the limited license granted to you hereunder.

By posting, delivering, or submitting any material (including, without limitation, all Content submissions, comments, product reviews, blog entries, social media posts and comments, photos, and videos) to us via the Site, internet groups, social media accounts, or to any of our staff via email, text, or otherwise, you are representing and warranting: (i) that you are the owner of the material, or are making your submission, comment, posting, or other content based interaction with the express consent of the owner of the material (ii) that you have the necessary rights and permissions, including, without limitation, all copyrights and likeness rights without the need for notice or permission from or payment to you or any other entity (iii) that you authorize us to use and exploit your material; and (iv) that you are thirteen (13) years of age or older. In addition, when you post, comment, deliver, submit, email, text any material, or otherwise make any material available to us, you are granting us, and anyone authorized by us, a royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, and worldwide license to use, copy, modify, transmit, sell, exploit, create derivative works from, distribute, and/or publicly perform or display such material, in whole or in part, in any manner or medium, now known or hereafter developed, for any purpose whatsoever, without further notice to you, without attribution, and without the requirement of permission from or payment to you or any other person or entity.

The foregoing grant by you to us shall include the right for ByHeart to exploit any proprietary rights in such postings or submissions, including, but not limited to, rights under copyright, trademark, privacy and publicity rights, service mark, patent, and any other intellectual property laws under any relevant jurisdiction. Also, in connection with the exercise of such rights, you agree to grant us, and anyone or any entity authorized by us, the right to identify you as the author of any of your postings or submissions by name, email address, or screen name, as we deem appropriate.

You acknowledge that ByHeart has the right but not the obligation to use and display any submissions, postings, comments, or contributions of any kind and that we may elect to cease the use and display of any such materials (or any portion or portions thereof) at any time and for any reason whatsoever.

You may establish a hypertext link to the Site so long as the link does not state or imply any sponsorship of you, your business, or your website by us or by the Site. However, you may not, without prior express written permission from us, frame or inline link any of the Content of the Site or incorporate into another website or other service any of our material, Content, or intellectual property. Doing so automatically terminates the limited license granted to you hereunder.

 

VIII. Errors, Inaccuracies, and Omissions

Information or Content on our Site may contain typographical or factual errors, inaccuracies, or omissions that relate to product descriptions, pricing, promotions, offers, and availability. User Content submissions, including comments, product reviews, photos, and videos, may likewise contain typographical or factual errors, inaccuracies, or omissions. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information if any information on the Site is inaccurate at any time without prior notice.

 

IX. External Sites

The Site may contain links to other websites on the Internet or utilize other platforms that are owned and operated by third-party vendors and other third parties (the “External Sites”). You acknowledge that we
are not responsible for the unavailability of, or the content located on or through, any External Site. When using External Sites, you agree to abide by the External Sites’ terms and conditions. You should contact the administrator or webmaster for those External Sites if you have any concerns regarding such links or the content located on such External Sites. We will not be liable for any information, software, or links found on any other website, Internet location, or source of information, nor for your use of such information, software, or links, nor for the acts or omissions of any such websites or their respective operators.

 

X. Personal Information

You understand that by using the service you consent to the collection, use, and disclosure of your information, including (i) personal information and aggregate data, and (ii) personal health information that you choose to share with us through the Site or otherwise, according to the features of the Site, all as set forth in our Privacy Policy [SB4] (to the extent applicable).  You further consent to have your personal information collected, used, transferred to, and processed in the United States and/or shared with healthcare providers according to the actions you take in using the Site.  We encourage you to read our Privacy Policy [SB5] on a regular basis for a description of such data collection and use practices, as these documents may change from time to time.

 

XI. Notice and Procedure for Making Claims of Copyright Infringement

ByHeart respects the intellectual property of others. If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement, please provide ByHeart’s Digital Millennium Copyright Act (“DMCA”)-designated agent (“Copyright Agent”) the written information specified below:

ByHeart’s Copyright Agent for notice of claims of copyright infringement on the Site can be reached at hello@byheart.com. [AJ6] 

 

XII. Other Prohibited Uses

In addition to other prohibitions set forth in the Terms, you are prohibited from using the Site or its Content: (i) for any unlawful purpose; (ii) to solicit others to perform or participate in any unlawful acts; (iii) to violate any international, federal, provincial, municipal, or state regulations, rules, laws, or ordinances; (iv) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (v) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, gender identity, sexual orientation, religion, ethnicity, culture, race, age, national origin, or disability; (vi) to submit false or misleading information; (vii) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Site or of any related website, other websites, or the Internet; (viii) to collect or track the Personally Identifiable Information or data of others; (ix) to spam, phish, pharm, pretext, spider, crawl, or scrape; (x) for any obscene or immoral purpose; or (xi) to interfere with or circumvent the security features of the Site or any related website, other websites, or the Internet.

Further, you may not decompile or disassemble, reverse engineer, or otherwise attempt to discover any source code contained in the Site. Notices and warnings communicated by us to you regarding the use and functions of the Site and Account must be followed by you. You may not use the Site for any commercial purposes, including the promotion or advertisement of any goods, services, or opportunities, and you may not use the Site to solicit other users or Site visitors to visit or become members of, subscribe to, or register with any commercial online service or other organization.

We reserve the right to terminate your use of the Site or any related website for violating any of the prohibited uses.

 

XIII. Disclaimer of Warranties

ALTHOUGH WE STRIVE TO PROVIDE THE LATEST DEVELOPMENTS RELATING TO OUR PRODUCTS AND SERVICES ON THIS SITE, WE DO NOT WARRANT THE ACCURACY, EFFECTIVENESS, AND SUITABILITY OF ANY INFORMATION CONTAINED ON THIS SITE. YOU AGREE THAT THE USE OF THE SITE IS ENTIRELY AT YOUR OWN RISK. THE SITE IS PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT OF PROPRIETARY RIGHTS ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ANY WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY, AND PERFORMANCE OF THE SITE. TO THE FULLEST EXTENT PERMITTED BY LAW, WE ARE NOT RESPONSIBLE FOR, AND HEREBY DISCLAIM ANY WARRANTIES FOR OTHER SERVICES OR GOODS OFFERED BY THIRD PARTIES, INCLUDING USERS AND EXPERTS, RECEIVED OR PROVIDED THROUGH OR ADVERTISED ON THE SITE, OR ACCESSED THROUGH ANY LINKS ON THE SITE. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ANY WARRANTIES FOR VIRUSES OR OTHER HARMFUL COMPONENTS IN CONNECTION WITH THE SITE.

ByHeart is not responsible, and provides no warranty whatsoever, for the accuracy, effectiveness, timeliness, and suitability of any information or content obtained from third parties, including any links to or from third-party sites. Except as otherwise provided on this Site, ByHeart will not edit, censor or otherwise control any content provided by third parties on the Site. Such information should, therefore, be considered as suspect and is not endorsed by ByHeart.

 

XIV. Limitation on Liability

UNDER NO CIRCUMSTANCES SHALL BYHEART BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM YOUR USE OR MISUSE OF THE SITE, FROM YOUR INABILITY TO USE THE SITE, OR FROM THE INTERRUPTION, SUSPENSION, MODIFICATION, ALTERATION, OR TERMINATION OF THE SITE. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY THIRD-PARTY SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE SITE OR ANY LINKS ON THE SITE, AS WELL AS BY REASON OF ANY THIRD-PARTY INFORMATION, ADVICE, OR ADVERTISEMENT RECEIVED THROUGH THE SITE OR THROUGH ANY LINKS ON THE SITE, INCLUDING ANY INFORMATION PROVIDED OR OFFERED BY ANY AND ALL USERS AND EXPERTS. BYHEART DOES NOT ASSUME ANY LIABILITY FOR THE MATERIALS, INFORMATION, AND OPINIONS PROVIDED ON, POSTED TO, OR OTHERWISE AVAILABLE THROUGH THIS SITE. RELIANCE ON THESE MATERIALS, INFORMATION, AND OPINIONS IS SOLELY AT YOUR OWN RISK. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. THE FOREGOING LIMITATIONS OF LIABILITY ARE APPLICABLE WITHIN THE STATE OF NEW YORK.

Some jurisdictions do not allow the exclusion of certain warranties or conditions or the limitation or exclusion of liability for loss or damage caused by negligence, breach of contract, or breach of implied terms, or incidental or consequential damages. Accordingly, only the limitations which are lawful in your jurisdiction will apply to you, and our liability will be limited to the maximum extent permitted by law.

 

XV. Indemnity

By accessing and using the Site, you agree to indemnify and hold harmless ByHeart, its officers, directors, agents, employees, subsidiaries, affiliates, successors, assigns, vendors, and suppliers from any claim or demand, including attorneys’ fees and court costs, made by any third party due to or arising out of your use or misuse of the Site, your violation of the Terms, or your breach of any of the representations and warranties contained herein. The foregoing indemnification provision shall not apply to our own negligence or intentional conduct.

 

XVI. Compliance with Applicable Laws

This Site is operated, in whole or in part, from the United States. User access to this Site is thereby governed by all applicable federal, state, and local laws of the United States. All information available on the Site is subject to United States export control laws and may also be subject to the laws of the country where you reside. We do not make any representations regarding the legality of access to or use of the Site or the information contained therein from countries outside of the United States. Accessing the Site in countries in which the Site’s Content and services and any and all other information contained on the Site is illegal is strictly prohibited. Users who access the Site from outside of the United States do so at their own risk and are responsible for compliance with applicable United States export and local country laws. By using the Site, regardless of where you live in the world, you consent to have your personal data transferred to and processed and collected in the United States in compliance with our Privacy Policy.

 

XVII. Accessibility

ByHeart’s policy is to make our websites accessible to users of the websites who have disabilities and to permit Company content providers to develop and post accessible content. Our full Accessibility Statement is available in Addendum A.

 

XVIII. Dispute Resolution, Arbitration Agreement, and Class Action Waiver – PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

Governing Law

Except as specifically set forth in these Terms, these Terms are governed by and will be construed under the laws of the State of New York without regard to its choice of law provisions, and not by the 1980 United States Convention on Contracts for the International Sale of Goods.  

Class Action Waiver

You understand and agree that you may only resolve disputes with us on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. You agree that class arbitrations, class actions, private attorney general actions, requests for public injunctive relief, and consolidation with other arbitrations are not permitted.

YOU AGREE THAT BY AGREEING TO THIS CLASS ACTION WAIVER, YOU MAY BRING CLAIMS AGAINST BYHEART ONLY IN YOUR INDIVIDUAL CAPACITY, AND IN SO DOING YOU HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY, TO ASSERT OR PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS ACTION ARBITRATION (EITHER AS A NAMED PLAINTIFF OR CLASS MEMBER), AND TO ASSERT OR PARTICIPATE IN ANY JOINT OR CONSOLIDATED LAWSUIT OR JOINT OR CONSOLIDATED ARBITRATION OF ANY KIND.

Arbitration Agreement

ByHeart strives to ensure customer satisfaction and to address your concerns without needing a formal legal case. Before filing a claim against us in connection with these Terms or your purchases of our products, you agree to try to resolve the dispute informally by contacting hello@byheart.com. We will attempt to resolve the dispute informally by contacting you via email. If a dispute is not resolved within 30 days of submission to ByHeart at the email address above, you or we may bring a formal arbitration proceeding or small claims action as outlined below. However, either party may bring a lawsuit solely for injunctive or equitable relief without first engaging in arbitration or the informal dispute resolution process. 

BY AGREEING TO THIS ARBITRATION AGREEMENT, YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT, INCLUDING YOUR RIGHT TO A JURY TRIAL. 

You and ByHeart agree to resolve any claims relating to these Terms, your purchases from ByHeart, the Site, any and all dealings with us, any representations made by us, and/or your use of our Site, including any dispute that arose before you accepted the Terms (collectively, a “Dispute”), by binding arbitration rather than in court.

You and ByHeart expressly delegate to the arbitrator or arbitrators the authority to determine the arbitrability of any Dispute, including the scope, applicability, validity, and enforceability of this arbitration provision.

This Arbitration Agreement shall be governed by and interpreted, construed, and enforced in accordance with the Federal Arbitration Act. The terms of the Arbitration Agreement provisions shall survive after your use of the Site ends. Except as set forth above, if any portion of this Arbitration Agreement is deemed invalid or unenforceable, it will not invalidate the remaining portions of the Arbitration Agreement.

Arbitration Procedure

The Dispute shall be resolved through binding individual arbitration in New York, New York except as set forth under the small claims alternative listed below. A consumer can also elect to have the arbitration occur in your state of residence.

You agree that the arbitration shall be conducted by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (“AAA Rules”), as modified by this Arbitration Agreement. In the event that the AAA is unavailable or unwilling to hear the Dispute, the parties agree that the arbitration shall be conducted by Judicial Arbitration and Mediation Services (“JAMS”) under its rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.

You may commence an arbitration proceeding by sending a letter requesting arbitration to:

ByHeart Inc., 131 Varick Street, 11th Floor, New York, NY 10013, United States, Attn: Legal Department

If the claim has not been resolved within ninety (90) days of sending the notice, you may formally commence an arbitration proceeding. The arbitration will be conducted by the AAA under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules and forms are available at www.adr.org, or by calling (800) 778-7879.

Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s applicable rules. We will reimburse those fees for claims totaling less than $10,000 if the arbitrator rules in your favor on any material aspect of your claim. We waive our right to seek attorneys’ fees and costs in arbitration. However, if your claim is deemed by the arbitrator to be frivolous or brought in bad faith or with an improper purpose as measured by the standards of Federal Rule of Civil Procedure 11 and all decisions of courts of competent jurisdiction applying Rule 11, then the arbitrator may award us the reimbursement of its costs and arbitration fees against you and/or your counsel.

You further agree that if your arbitration claim is filed at or around the time of other similar claims by the same or related counsel, your claim may be temporarily stayed or phased to allow the AAA to establish efficient and fair adjudication procedures.

Small Claims Court Alternative

In the event that you and ByHeart are unable to first resolve the dispute informally, in lieu of arbitration, either you or ByHeart may bring any individual claim in small claims court so long as the claim qualifies with the jurisdictional and dollar limits that may apply, and that it is brought and maintained as an individual claim. Even if all parties have opted to litigate a claim in small claims court, you or ByHeart may elect arbitration with respect to any claim made by a new party or any claim later asserted by a party in any related or unrelated lawsuit, including modifying an individual claim to assert a class, representative, or multi-party claim. Arbitration may be requested at any time, even when there is a pending lawsuit, unless a trial has begun or a final judgment entered.

 

XIX. Statute of Limitations

Except as otherwise prohibited by law, any claim or Dispute must be brought within one (1) year from the date the cause of action arises.

 

XX. Termination

With the exception of the Arbitration Agreement, which shall survive termination of the Terms, the Terms are effective unless and until they are terminated by either you or ByHeart. ByHeart may terminate the Terms at any time without notice, and accordingly may deny you access to the Site, if in our sole judgment you fail to comply with any of the Terms. The date that ByHeart denies you access to the Site according to this provision constitutes the termination date. The obligations and liabilities of the parties incurred prior to the termination date shall survive termination for all purposes.

 

XXI. Entire Agreement

The Terms and the Privacy Policy
constitute the entire agreement between you and ByHeart with respect to the subject matter of the Terms and Privacy Policy.

 

XXII. Severability and Survival

If any portion of the Terms, including the Arbitration Agreement, is found to be unenforceable or unlawful for any reason: (i) the unenforceable or unlawful provision shall be severed; (ii) severance of the unenforceable or
unlawful provision shall have no impact whatsoever on the remainder of the Terms or ByHeart’s ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of
competent jurisdiction and not in arbitration, and the parties agree that
litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.

 

XXIII. California Consumer Notice

Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: This Site is provided by ByHeart, Inc. If You have a question or complaint regarding the Site, please contact Customer Service at 1-833-429-4327.  You may also contact us by writing ByHeart, Inc., 131 Varick Street, 11th Floor, New York, NY 10013, United States. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North
Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.

 

XXIV. Contact Us.

If you have any questions about these Terms or otherwise need to contact us for any reason, you can reach us at hello@byheart.com.

 

ADDENDUM A

ACCESSIBILTY STATEMENT

To meet its accessibility goal, ByHeart (the “Company”) is committed to the following initiatives:

1. We aim to conform our websites with the Web Content Accessibility Guidelines (“WCAG”) 2.1 AA, published by the World Wide Web Consortium (“W3C”). This applies to both customer-facing and for internal use. We also aim to ensure that our authoring tools conform to all Level AA criteria of Authoring Tool Accessibility Guidelines (“ATAG”).  

2. We will verify conformance through a combination of manual code inspection, automated testing using industry-recognized tools, compatibility testing using the most widely used accessibility support tools, and review by an independent website accessibility consultant to conduct an accessibility audit of our websites and provide us with specific recommendations that will ensure compliance with WCAG 2.1 AA. 

3. We prioritize accessibility bug fixes to ensure they are remedied with the same level of priority as any other equivalent loss of function for individuals without disabilities.

4. We distribute this statement to Company content providers and website content and technical support personnel for our websites.

5. We link to this statement from the Company’s homepage, solicit and provide a method to submit feedback, and provide a method to contact the Company’s website accessibility coordinator.

6. We require that all Company content providers provide and/or post content in a format that conforms to WCAG for web content.
To assist content providers in their efforts, we will be publishing and distributing Accessibility Best Practices Guidance for Content Providers.

7. Our team includes a website accessibility coordinator who is knowledgeable on website accessibility and digital accessibility standards, responsible for coordinating the Company’s responsibilities with respect to accessibility, and responsible for developing the accessibility practices.

8. We provide annual training to Company website content and technical support personnel on ensuring our websites conform to WCAG.

9. We welcome accessibility-related feedback, including requests for accommodation, through the hello@byheart.com inbox, which is managed by a knowledgeable support team.

 

The Company undertakes these accessibility initiatives to expand access to everyone and to assist content providers, many of which have independent obligations under accessibility laws, with providing content in accessible formats.

The Company urges content providers to incorporate accessibility in their content posted on Company websites to meet a wide variety of requirements of users with disabilities.

We are dedicated to making accessibility improvements to our websites. As with any rapidly advancing technology platform, enhancement of accessibility at ByHeart is an ongoing process. Please direct any questions or suggestions on how to improve the accessibility of our websites to hello@byheart.com. We welcome your feedback.