Terms of Service


TERMS OF SERVICE

Effective May 17, 2022

This website (“www.byheart.com” or the “Site”) is owned and operated by BYHEART, INC. (“ByHeart,” “we,” or “us”).

PLEASE READ THESE TERMS OF SERVICE 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 of Service (“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.

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 referential purposes only. BYHEART IS NOT A HEALTHCARE PROVIDER OR PRACTITIONER. Except as expressly stated and agreed upon by ByHeart, 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 services that create a physician-patient relationship. 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.

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. Restrictions on Use

V. Limited License

VI. Errors, Inaccuracies, and Omissions

VII. External Sites

VIII. Personal Information

IX. Notice and Procedure for Making Claims of Copyright Infringement

X. Other Prohibited Uses

XI. Disclaimer Of Warranties

XII. Limitation On Liability

XIII. Indemnity

XIV. Exclusions permitted by law

XV. Compliance with Applicable Laws

XVI. Dispute Resolution And Arbitration Agreement

XVII. Termination

XVIII. Governing Law; Entire Agreement

XIX. Severability and Survival

I. USE OF THE SITE

A. Your Use

By using this Site, you agree not to disrupt or intercept our electronic information posted on this Site or any of our servers. You also agree not to attempt to circumvent any security features of this Site, and to abide by all applicable, local, state, federal and international laws, rules and regulations. You grant ByHeart the right to use all content you upload or otherwise transmit to this Site, subject to these Terms of Service and ByHeart’s Privacy Policy, in any manner ByHeart chooses, including, but not limited, to copying, displaying, performing or publishing it in any format whatsoever, modifying it, incorporating it into other material or making a derivative work based on it. Except as expressly stated and agreed upon in advance by ByHeart, no confidential relationship shall be established in the event that any user of this Site should make any oral, written or electronic communication to ByHeart (such as feedback, questions, reviews, comments, suggestions, ideas, etc.). If any ByHeart Site requires or requests that such information be provided, and that such information contains personal identifying information (e.g., name, address, telephone number, credit card numbers, etc.), ByHeart shall obtain, use and maintain it in a manner consistent with our Privacy Policy. Otherwise, such communication and any information submitted therewith shall be considered non-confidential, and ByHeart shall be free to reproduce, publish or otherwise use such information for any purposes whatsoever including, without limitation, the research, development, manufacture, use or sale of products incorporating such information. The sender of any information to ByHeart is fully responsible for its content, including its truthfulness and accuracy and its non-infringement of any other person’s proprietary or privacy rights.
B. Site Content

None of the Site content should be considered medical advice 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 immediately.
C. User Accounts

Use of the Site is made available only to persons over the age of thirteen (13) and to persons who can form legally binding agreements under applicable law. Although users of all ages are welcome to browse the 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. In no event and under no circumstances shall ByHeart be held liable to you for any liabilities or damages resulting from or arising out of your use of the Site, your use of the Account Information, or your release of the Account Information to a third party. 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 U.S. Products may not be available in all countries and may require a prescription from a healthcare professional.


III. Product Reviews

Before you post a review, remember:

Don’t spam or hate.

Don’t leave disparaging or misleading comments.

Do be kind and respectful.

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 or wholesalers, or other non-authorized third-party distributors.

V. Refund Policy

Purchases made on the Site may be refunded within 30 days of invoice date. Contact ByHeart at hello@byheart.com to request a refund of your 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, and software—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 of America 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 of America 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.

VII. Limited License

We grant you a limited, non-exclusive, nontransferable right to access the Site and use the services solely for your personal non-commercial 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: (a) keep intact all copyright, trademark, and other proprietary rights notices; (b) do not modify any of the Content, including Content submissions provided by other users; and (c) 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, 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: (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; and (ii) that you are thirteen (13) years of age or older. In addition, when you post, deliver, submit, email, or text any material to us, you are granting us, and anyone authorized by us, a royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, 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.

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, service mark, or patent 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

Your submission of personal information and data through our Site is governed by our Privacy Policy.

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:

An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;

A description of the copyrighted work that you claim has been or is being infringed;

A description of where the material that you claim is infringing is located on the Site;

Your name, home address, telephone number, and email address;

A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent or agents, or the law;

A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.

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


XII. Other Prohibited Uses

In addition to other prohibitions set forth in the Terms, you are prohibited from using the Site or its Content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial, municipal, or state regulations, rules, laws, or ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) 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; (f) to submit false or misleading information; (g) 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; (h) to collect or track the Personally Identifiable Information or data of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) 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 USE OF THE SITE, INCLUDING THE SOLICITATION AND PROVISION OF ANY AND ALL HEALTH AND WELLNESS ADVICE AND GUIDANCE 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.

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. Exclusions permitted by law

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 above limitations in Sections IX and X which are lawful in your jurisdiction will apply to you, and our liability will be limited to the maximum extent permitted by law.


XVII. Compliance with Applicable Laws

This Site is operated, in whole or in part, from the United States of America. User access to this Site is thereby governed by all applicable federal, state, and local laws of the United States of America. 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.



XVIII. 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.



XIX. Dispute Resolution And Arbitration Agreement

Any controversy, claim, action, or dispute arising out of or relating in any way to the Site, any and all dealings with us, any representations made by us, and/or your use of our Site (including, without limitation, claims relating to any breaches of the Terms or Privacy Policy or the unauthorized disclosure of Personally Identifiable Information) (collectively, a “Dispute”) will be resolved by binding arbitration rather than in court, except that you may assert individual claims in small claims court if your claims qualify and so long as the matter remains in such court and advances only on an individual basis. This includes any Dispute or claim that arose before you accepted the Terms.

Informal Dispute Resolution.
Mindful of the high cost of legal disputes, not only in dollars but also in time and energy, both you and ByHeart agree to the following dispute resolution procedure:

The party asserting the Dispute shall first try in good faith to settle such Dispute by providing written notice to the other party (by first-class or registered mail) describing the facts and circumstances underlying the Dispute (including any relevant documentation) and allowing the receiving party thirty (30) days in which to respond to the Dispute. Notice shall be sent to the following addresses:

(1) To ByHeart Inc., 131 Varick Street, 11th Floor, New York, NY 10013, United States
or
(2) To you at your last-used billing address or the billing address in your online profile.

Both you and ByHeart agree that this dispute resolution procedure is a condition precedent that must be satisfied prior to formally initiating any arbitration proceeding or filing any claim against the other party.

Arbitration Agreement.
To the extent that you cannot resolve any Dispute through the informal dispute resolution process described above, a Dispute shall be resolved through binding individual arbitration. You agree to give up your right to go to court to assert or defend your rights under these Terms and with respect to any Dispute. 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.

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 American Arbitration Association (“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.

You agree that the arbitration shall be conducted by the 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.

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 agree that the location of the arbitration will be in New York, New York. 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.

In lieu of arbitration, either you or ByHeart may bring any individual claim in small claims court consistent with the jurisdictional and dollar limits that may apply, as long as it is brought and maintained as an individual claim. Even if all parties have opted to litigate a claim in 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.

Waiver of Right to Bring Class Actions and Representative Claims.
All arbitration proceedings shall proceed on an individual basis. The arbitrator or arbitrators are empowered to resolve the Dispute with the same remedies that would be available in a court of competent jurisdiction; any relief must be individualized to you, however. YOU AND BYHEART AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER IN ARBITRATION ONLY IN YOUR OR THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND IN SO DOING YOU AND BYHEART 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. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular cause of action, then that cause of action (and only that cause of action) must remain in court and be severed from any arbitration.

Other Terms.
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.



XX.Termination

With the exception of the Arbitration Agreement, which shall survive termination of the Terms, the Terms are effective unless and until 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. Governing Law; Entire Agreement

To the fullest extent permitted by law, the Terms and any claim or Dispute arising out of or relating to the Site, the Privacy Policy (including the Cookie Policy) or your use of the Site, will be governed by and construed in accordance with 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, with the exception of the Arbitration Agreement, which shall be governed by the Federal Arbitration Act. 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. Any claim or Dispute arising out of or relating to the Site, the Privacy Policy, or your use of the Site shall be subject to the exclusive jurisdiction of state or federal courts in New York County in the State of New York, and you hereby consent and submit to the personal jurisdiction of any and all such courts. 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: (1) the unenforceable or unlawful provision shall be severed; (2) 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 (3) 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.



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 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.