Last Updated: May 19, 2020
This website (“Cluster” or the “Site”) is owned and operated by BYHEART, INC. (“ByHeart,” “we,” or “us”). ByHeart is pleased to provide you with access to the Site, a judgement-free, advice-rich destination to drive peer-powered, real-time connection, offer reliable resources, and validate a culture driven by the notion of being “well fed, however you do it.” We offer online services enabling our users (“Users”) to discuss their experiences and engage health and wellness professionals and other experts (collectively, “Experts”) in general discussions concerning health and wellness advice, information, and services (“Services”), and we facilitate the exchange of general health and wellness advice between Users who do not provide professional or clinical services.
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 general information about health, wellness, and related subjects for you, your baby, and your family, and is designed for educational and referential purposes only. BYHEART IS NOT A HEALTHCARE PROVIDER OR PRACTITIONER, AND THE INFORMATION AND CONTENT PROVIDED ON THE SITE IS NOT INTENDED AND SHOULD NEVER BE CONSTRUED AS MEDICAL ADVICE FOR EITHER YOU OR YOUR BABY, NOR IS IT A SUBSTITUTE FOR PROFESSIONAL MEDICAL EXPERTISE, ADVICE, DIAGNOSIS, OR TREATMENT. 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 from our Experts, or because of any inference you may have drawn from any information contained herein.
NOTHING STATED OR POSTED ON THE SITE, INCLUDING ANY LINKED MATERIAL AND ANY ADVICE OR INFORMATION OFFERED OR PROVIDED BY AN EXPERT, IS INTENDED TO BE, AND MUST NOT BE TAKEN AS, MEDICAL OR CLINICAL ADVICE OR CARE. USE OF THE SITE DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP. BYHEART IS NOT LIABLE FOR ANY ADVICE OR INFORMATION RECEIVED THROUGH THE SITE, INCLUDING FROM ANY EXPERT. For purposes of these Terms, medical or clinical advice or care includes, without limitation, any provision of healthcare treatment, instruction, diagnosis, prognosis, or advice.
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.
I. USE OF THE SITE
A. Health and Wellness Advice And Services
The Experts who offer Services using the Site are independent professionals practicing within a group of independently-owned professional practices that are not owned, operated, managed by, or associated with ByHeart. ByHeart does not practice medicine or any other licensed profession, and does not interfere with the practice of medicine or any other licensed profession by the Experts, each of whom is responsible for his, her, or their advice, guidance, Services, and compliance with all of the requirements applicable to his, her, or their profession and license. Any information, advice, or guidance received from an Expert comes from the Expert, and not from ByHeart. Neither ByHeart nor its officers, directors, agents, employees, subsidiaries, affiliates, successors, assigns, vendors, and suppliers, nor any third parties who promote the Services or provide you with a link to the Services, shall be liable for any professional advice you obtain from an Expert via the Services. YOU EXPRESSLY ACKNOWLEDGE AND REPRESENT THAT YOUR RELIANCE ON ANY EXPERT, OR ON ANY INFORMATION, ADVICE, OR GUIDANCE PROVIDED BY ANY EXPERT IS SOLELY AT YOUR OWN RISK, AND YOU ASSUME FULL RESPONSIBILITY FOR ALL RISK ASSOCIATED THEREWITH. ByHeart does not make any representations or warranties about the training or skill of any Expert.
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.
YOUR INTERACTIONS OR COMMUNICATIONS WITH ANY EXPERT ARE NOT INTENDED TO TAKE THE PLACE OF YOUR RELATIONSHIP(S) WITH YOUR REGULAR PHYSICIANS AND OTHER HEALTH CARE PRACTITIONER(S).
B. Site Content
None of the Site content should be considered medical advice or an endorsement, representation, or warranty that any particular medication or treatment is safe, appropriate, or effective for you, your baby, or any other person.
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.
In order to access and use some features on the Site, you may be required to establish and use an account (“Account”). 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) update such Account Information as necessary to keep your registration information, including your name and contact information, current and accurate.
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. 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.
III. 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, Content or other information provided or offered by any Expert, 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 or any Content or other information provided by an Expert; 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.
IV. 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, blog entries, social media posts and comments, photos, and videos, may likewise contain typographical or factual errors, inaccuracies, or omissions. Any information, advice, guidance, or other information offered by, and any and all Services provided or rendered by any Expert 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. Neither ByHeart nor its officers, directors, agents, employees, subsidiaries, affiliates, successors, assigns, vendors, and suppliers, nor any third parties who promote the Services or provide you with a link to the Services, shall be liable for any information, advice, or guidance you obtain from an Expert via the Services, including any typographical or factual errors, inaccuracies, or omissions that these Services may contain.
V. External Sites
The Site may contain links to other websites on the Internet 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. 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.
VI. Personal Information
VII. 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 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 as follows:
Legal Department, ByHeart Inc.
689 Fifth Avenue New York, NY 10022
VIII. 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.
IX. Disclaimer Of Warranties
YOU AGREE THAT USE OF THE SITE, INCLUDING THE SOLICITATION AND PROVISION OF ANY AND ALL HEALTH AND WELLNESS ADVICE AND GUIDANCE PROVIDED BY ANY USER OR EXPERT, 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.
X. 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 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. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. THE FOREGOING LIMITATIONS OF LIABILITY ARE APPLICABLE WITHIN THE STATE OF NEW YORK.
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.
XII. 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.
XIII. Compliance with Applicable Laws
XIV. Dispute Resolution And Arbitration Agreement
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., 689 Fifth Avenue, 14th Floor, New York, NY 10022, United States
(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.
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:
Legal Department ByHeart Inc., 689 Fifth Avenue, 14th Floor, New York, NY 10022
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.
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.
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.
XVI. Governing Law; Entire Agreement
XVII. 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.