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These terms and conditions of use (“Terms of Use”) cover your use of and access to the website located at www.modobio.com (“Site”), which is owned and operated by Modo Bio LLC and its affiliates (collectively, “Company”, “we”, “us”, or “our”), our applications (including mobile applications), software, APIs, and any other product or service provided by Company in connection with wearable device technology (together, the “Services”). The Services include a telehealth platform (“Platform”) that analyzes clients’ wearable device technology metrics and connects such clients to a network of physicians and other health care professionals, including VirtuDocs PLLC (together, “Providers”) who offer medical evaluations by using telephonic and telecommunications-enabled care. Modo Bio provides technology, management and other non-medical services to the affiliated medical practices in order for the affiliated medical practices to use our Platform to provide you with telehealth consultations. Please read these Terms of Use carefully and in their entirety, as these Terms of Use include important information about your legal rights, remedies, and obligations. Feel free to contact us if you have any questions about these Terms of Use.

Account

Parts of the Platform will require a subscription for use. In order to access and use those parts of the Services, you must first download the Platform’s mobile application through either the Apple App Store or Google Play (each, “App Store”) and then create an account (“Account”) on the Site and provide certain registration details or other information, as further detailed in our Privacy Policy. By creating an Account, you warrant that:

(i) You are legally capable of entering into binding contracts; (ii) All registration information you submit is truthful and accurate; (iii) You will maintain the accuracy of such information; and (iv) Your use of the Services will be in compliance with applicable laws and regulations and does not violate any applicable law or regulation. Some of our Services will be available by “appointment basis,” which may require you to create an Account as well. These Services will be subject to the terms that are provided to you at the time you book the appointment.

You agree that you will not distribute your login credentials to any other person or authorize the use of your Account by any other person, and that you will not solicit, collect, or use the login credentials of other users. You agree that you will not transfer, sub-license, sell, or assign your rights in your Account to any other person. Any unauthorized use of your Account by any third party is subject to these Terms of Use as though you were using the Account.

At all times, your Account will be governed by the current version of these Terms of Use, including any revisions made thereto since your last use of your Account. Company reserves the right to terminate your Account or restrict or refuse access to your Account or the Services, or to delete any content posted through your Account, with or without notice, for any reason or no reason, and without any liability to you. If your Account is terminated or otherwise deactivated, whether by Company, yourself, or anyone else, your data will no longer be accessible through your Account, but that data may persist and appear within the Services. Nevertheless, Company has no obligation to retain any data associated with your Account following termination or deactivation of the Account.

NOTICE: BY CREATING AN ACCOUNT AND USING THE SERVICES YOU AGREE TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND HEREBY GIVE UP ANY RIGHT TO A JURY OR COURT TRIAL. SEE DISPUTE RESOLUTION SECTION OF THESE TERMS OF USE BELOW.

Medical Information

The Services may contain general information related to medical conditions, research, testing, and treatment, and other health care topics. Any such information is provided for informational purposes only. The receipt of any such information does not create a professional relationship between you and Company. THE SERVICES SHOULD NOT BE RELIED UPON AS A SUBSTITUTE FOR QUALIFIED MEDICAL ADVICE OR CONSULTATION WITH A PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROFESSIONAL. You should always consult with a doctor or other health care professional for medical advice or information about diagnosis and treatment.

Telehealth Consultations and Consent to Treatment

Through your use of the Services, you may have the opportunity to consult with Providers via telephonic or other electronic media (“Telehealth Consultations”). Telehealth Consultations are limited to non-emergency family medicine information and appointments and shall not include emergency services or specific medical specialties, including without limitation, prescribing any controlled substances. You understand that there are inherent risks and limitations associated with a Telehealth Consultation (i.e., not an in-person visit) with a Provider, including, but not limited to, risks and limitations arising from such Provider’s ability, or inability, to comprehensively assess and accurately diagnose illness, injury, or disease using remote, electronic communications. By creating an Account, or otherwise using the Services, you give permission to the Providers to provide you with medical care. You may withdraw this consent at any time by no longer seeking care from Company or by providing notice to Company of such withdrawal. Company has the right to refuse access to the Services to any person at any time, for any reason, or for no reason at all.

Company is not responsible for the quality and appropriateness of the care the Providers render to you. The doctor-patient relationship is between you and the Provider. Your interactions with the Providers via Telehealth Consultations are not intended to replace your relationship of your other health care practitioners or primary care physician. Neither Company, nor any of its subsidiaries or affiliates or any third party who may promote the Services, shall be liable for any professional advice obtained from a Provider via Telehealth Consultation, or any information obtained on the Services.

By creating an Account and accessing the Services, you acknowledge that you understand the risks and benefits of telehealth, you have received adequate answers to any questions you have about the use of telehealth, and you consent to the use of telehealth in the delivery of health care services to you. Company and the Providers operate subject to state and federal regulations related to Telehealth Consultations, and thus, Telehealth Consultations may not be available in your state or limited in scope. You represent that you are not a person barred from enrolling for and/or receiving Telehealth Consultations under the laws of the United States or other applicable jurisdictions in which you may be located. Access to and use of the Telehealth Consultations is limited exclusively to users located in states within the United States where the Services are available. Neither Company nor any Provider shall bill any health plan, health insurance, or third-party payor for Telehealth Consultations provided as part of the Services. By agreeing to use the Services, you acknowledge and agree that you will pay directly for any Services, including Telehealth Consultations provided to you, and neither Company nor any Provider will bill any insurance, including federal or state health care programs, for such Services

Eligibility

By using the Services, you acknowledge and agree that (a) the Telehealth Consultations are provided at the sole discretion of the Providers; (b) the Telehealth Consultations are limited to diagnosis and treatment of those non-emergent medical condition appropriate for diagnosis and treatment using telephone and/or telecommunications; (c) when accessing the Services you are physically present in the location you have indicated in your Account settings and you confirm that you are physically located in a state or jurisdiction in which the Company operates when you request to use the Services; (d) the Telehealth Consultations may not be reimbursable by Medicare, Medicaid or any other government health care program, and you agree not to seek coverage for any Services that are not reimbursable by such programs; (e) the Services may not be reimbursable by commercial insurers, managed care organizations, preferred provider organizations or other payors, but you may separately from Company seek reimbursement from any such payor for the cost of use of the Services (f) you are at least 18 years of age, or accompanied by a parent or guardian who can give informed consent on your behalf if you are under the age of 18 at the time of the consultation; and (g) if you are seeking services on behalf of a child, dependent or other person for whose medical care you are responsible, your approval of these Terms of Use will bind such other person to these terms.

Billing

Company may charge a fee for any appointment that you book via the Services. Upon creating an Account, the App Store will charge a monthly subscription fee (the “Subscription Fee”) for access and use of the Platform and other Services pursuant to such App Store’s online terms of service, which can be found at https://www.apple.com/legal/internet-services/itunes/us/terms.html and https://play.google.com/intl/en-US_us/about/play-terms/index.html. Any telehealth payments will be processed via an online portal through the Platform. In connection with the processing of such telehealth payments, we do not maintain financial information such as credit card numbers on our internal databases. Rather, all such information is provided to our third-party processor, currently InstaMed Communications, LLC (“Payment Provider”), whose use of your personal information is governed by their own privacy policy, which may be viewed at https://www.instamed.com/privacy-statement/.. If Company does not receive payment from your Payment Provider, you agree to pay all amounts due upon demand. You agree to pay all charges at the prices then in effect for any use of the Services by you or other persons (including your agents). Company reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment.

YOU MUST CANCEL YOUR SUBSCRIPTION BEFORE IT RENEWS TO AVOID BEING CHARGED THE SUBSCRIPTION FEE FOR THE NEXT RENEWAL TERM. ANY AND ALL REQUESTS FOR SUBSCRIPTION CANCELLATION SHALL BE SUBMITTED TO THE APP STORE PURSUANT TO ITS TERMS OF USE.

Prescriptions

Providers write prescriptions in accordance with their independent professional judgment and federal and state law. Prescriptions may be written only for the limited medical conditions we treat. You will not be able to obtain a prescription product unless you have completed a consultation with a Provider. There is no guarantee that a Provider will write you a prescription. We do not write prescriptions for DEA controlled substances. If a Provider determines a prescription is appropriate for you and writes a prescription, you may fill the prescription at any pharmacy of your choice. Certain prescriptions can be filled through a mail-order pharmacy. Other prescriptions are not available through a mail-order pharmacy and must be filled by a local pharmacy of your choice. You will be prompted to state your choice of pharmacy during your use of the Services.

If you complete a consultation with a Provider and fill a prescription through a mail-order pharmacy, the prescription product will be shipped to you by the applicable pharmacy. Mail-order pharmacies are third-parties, independent of Company. For all prescriptions, you or your health insurance are responsible for the cost of the prescription product. If you fill a prescription with a pharmacy other than a mail-order pharmacy, Company will send the prescription to your selected pharmacy, but you will be responsible for picking up or otherwise obtaining the prescription product and paying the pharmacy directly for the cost of the prescription product.

User Conduct and Responsibilities

You are required to comply with all applicable federal, state, and local laws in connection with your use of the Services. As a condition of your use of the Services, you agree that you will not use the Services or any Company Materials (as defined below) for any purpose that is unlawful or prohibited by these Terms of Use. You agree that you will only provide information in connection with any and all other uses of the Services that is true and accurate, identifies only you, and is not false, misleading, or otherwise an impersonation of any person or entity. Additionally, you agree not to, without limitation:

  • Use any content or information available on this Site or Services for any unauthorized purpose;
  • Interfere with or damage this Site or servers or networks connected to this Site or disobey any requirements, procedures, policies, or regulations of networks connected to this Site, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, denial of service attacks, forged routing of electronic mail address information, or similar methods or technology;
  • Upload, post, e-mail, or otherwise transmit any material that contains software viruses, or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
  • Upload, post, e-mail, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other form of solicitation;
  • Upload, post, e-mail, or otherwise transmit any materials that you do not have a right to transmit under any law or under contractual or fiduciary relationships;
  • Attempt to reverse engineer, reverse assemble, reverse compile, decompile, disassemble, translate, or otherwise alter, defraud, or create false results from any executable code, information on, or received by this Site or Services;
  • Harvest or collect Personal Information (as defined in our Privacy Policy) about any other individual who uses this Site or Services;
  • Make any statements, express or implied, that you are endorsed by Company without our specific prior written consent;
  • Infringe or facilitate infringement on any copyright, patent, trademark, trade secret, or other proprietary, publicity, or privacy rights of any party, including, but not limited to, such rights of third parties; or
  • Assist any third party in engaging in any activity prohibited by these Terms of Use.

You are solely responsible for your conduct and any data that you submit, post, transmit, or display on or through the Services. In addition, you agree not to, without limitation, upload, post, submit, publish, transmit, or display in connection with the Services, any information or material that:

  • you do not own or do not have the right to post, including proprietary material of any third party;
  • breaches any agreement with any other person or entity;
  • violates any law or may be considered to violate any law; or
  • threatens or abuses others, libels, defames, invades privacy, is false, discriminatory, hateful, harassing, or offensive, or otherwise injurious or objectionable.

Company reserves the right to remove, block, and/or monitor, without notice, any accounts that Company considers, for any reason, to violate these Terms of Use or to be outside the subject scope of the Services. In addition, Company reserves the right to force forfeiture of any username for any reason. In addition to any remedies that we may have at law or in equity, if we determine, in our sole discretion, that you have violated or are likely to violate the foregoing acceptable use requirements, we may take any action we deem necessary to cure or prevent the violation. You represent, warrant, and agree that you will comply with the above acceptable use requirements. In addition to any remedies that we may have at law or in equity, if we determine, in our sole discretion, that you have violated or are likely to violate the foregoing prohibitions, we may take any action we deem necessary to cure or prevent the violation.

License

You hereby grant to Company a royalty-free, perpetual, irrevocable, worldwide, non-exclusive, fully transferable and sub-licensable right and license to use, reproduce, modify, adapt, reformat, publish, translate, create derivative works from, distribute, transmit, perform, and display all data, feedback, or other information submitted, posted, published, transmitted, or displayed on or via the Services, and to incorporate such data in other works in any form, media, or technology now known or later developed. Company shall have no obligation of any kind with respect to any such data that you submit, post, publish, display, or transmit via the Services. You represent and warrant that you have proper authority to grant this license.

Company Materials

The Site and Services may contain text, images, software, photographs, video, graphics, audio, features, data, designs, computer programs, source and object code, documentation, databases, logos, domain names, trade names, and similar content (collectively, “Company Materials”). Unless otherwise expressly identified, Company Materials are owned by us or by our third-party licensors. Company Materials may be protected by United States and international copyright, trademark, patient, trade secret and other laws. As between you and Company, Company owns and retains all rights in the Company Materials and the Services. You may use and download Company Materials solely for your personal use, provided you keep intact all copyright and other proprietary notices. Except as expressly permitted by Company, you may not modify, copy, reproduce, republish, upload, post, transmit, hyperlink to or from, or distribute in any way Company Materials, nor may you sell, transfer, or otherwise use the Services or Company Materials in commerce or for any public or commercial endeavor without our prior and express written consent. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to intellectual property rights of Company, whether by estoppel, implication, or otherwise. We may in our sole discretion make changes to Company Materials at any time without notice.

Privacy

Your privacy is important to us. Please review our Privacy Policy, which describes our collection, storage, use, disclosure, and transfer of information about users of the Services. The Privacy Policy is expressly incorporated herein by reference and made a part of these Terms of Use.

Non-confidentiality

Except as otherwise described in the Privacy Policy, and subject to applicable law, as between you and Company, all data or information you provide in connection with your use of the Services is non-confidential and non-proprietary and we will not be liable for any use or disclosure of such data. You acknowledge and agree that your relationship with Company is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any data does not place Company in a position that is any different from the position held by members of the general public, including with regard to such data.

Linking and Third Parties

UNDER NO CIRCUMSTANCES WILL THE COMPANY PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SERVICES; (B) THE COMPANY MATERIALS; (C) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICES; (D) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE COMPANY PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY’S USE OF THE SERVICES; (E) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (F) ANY ERRORS OR OMISSIONS IN THE OPERATION OF THE SERVICES; OR (G) ANY DAMAGE TO ANY USER’S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE COMPANY PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE). IN NO EVENT WILL THE COMPANY PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE COMPANY PARTIES TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED THE AMOUNT PAID, IF ANY, BY YOU TO COMPANY FOR THE SERVICES DURING THE TERM OF YOUR SUBSCRIPTION. YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF COMPANY’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE COMPANY PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE COMPANY PARTIES. BY ACCESSING THE SERVICES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” COMPANY IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.

Company reserves the right, at any time, in Company’s sole and exclusive discretion, to amend, modify, suspend, or terminate the Services, Company Materials, or any part thereof, and/or your use of or access to them, with or without notice. Company shall have no liability to you or any other person or entity for any modification, suspension, or termination, or any loss of related information. You further acknowledge that the Internet may be subject to security breaches, and as such, submission of your data or other information may not be secure. You agree to accept sole and exclusive responsibility (as between Company and you) for adequate protection of your data and/or devices and equipment used in connection with the Services. You are solely responsible for your interactions with other users of the Services, whether online or offline. You agree that the Company Parties have no responsibility or liability whatsoever for the conduct of any user.

Disclaimer

YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK (INCLUDING BUT NOT LIMITED TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA, DAMAGE RESULTING FROM RELIANCE ON THE SERVICES, OR OTHER DAMAGES THAT RESULT FROM OBTAINING ANY CONTENT FROM THE SERVICES INCLUDING COMPUTER VIRUSES) EVEN IF COMPANY HAS BEEN ADVISED OF OR IS AWARE OF THE RISK OF SUCH DAMAGE. TO THE EXTENT PERMITTED BY LAW, COMPANY , ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS (COLLECTIVELY, THE “COMPANY PARTIES”) PROVIDE THE SERVICES, INCLUDING WITHOUT LIMITATION, THE COMPANY MATERIALS, “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS,” WITHOUT WARRANTY OF ANY KIND, AND SPECIFICALLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUSES. NO INFORMATION PROVIDED VIA THE SERVICES, OR BY THE COMPANY PARTIES, SHALL CREATE ANY WARRANTY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION, COVENANT, OR GUARANTEE WHATSOEVER, EXPRESS OR IMPLIED: i) AS TO THE VALUE, QUALITY, TIMELINESS, USEFULNESS, RELIABILITY, SECURITY, SUITABILITY, ACCURACY, TRUTHFULNESS, OR COMPLETENESS OF THE SERVICES OR THE COMPANY MATERIALS; ii) THAT THE SERVICES WILL OPERATE UNINTERRUPTED OR ERROR-FREE; iii) THAT THE SERVICES OR THE COMPANY MATERIALS WILL MEET YOUR NEEDS OR EXPECTATIONS; iv) AS TO THE QUALITY OR VALUE OF ANY OF COMPANY’S PRODUCTS, SERVICES, CONTENT, INFORMATION, OR OTHER MATERIAL YOU PURCHASE OR OBTAIN VIA THE SERVICES; v) AS TO THE AVAILABILITY OF ELECTRONIC OR TELECOMMUNICATION SERVICES AND ACCESS TO THE ELECTRONIC OR TELECOMMUNICATION SERVICES AT ANY TIME OR FROM ANY LOCATION, ANY LOSS, AND ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS, OR SETTINGS CONNECTED WITH THE ELECTRONIC OR TELECOMMUNICATION SERVICES; OR vi) THAT ANY ERRORS PERTAINING TO THE SERVICES WILL BE CORRECTED. THE COMPANY PARTIES DO NOT WARRANT THAT YOUR USE OF THE SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE COMPANY PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. BY ACCESSING OR USING THE SERVICES YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO YOU AND THESE TERMS OF USE.

Limitation on Liability

UNDER NO CIRCUMSTANCES WILL THE COMPANY PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SERVICES; (B) THE COMPANY MATERIALS; (C) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICES; (D) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE COMPANY PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY’S USE OF THE SERVICES; (E) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (F) ANY ERRORS OR OMISSIONS IN THE OPERATION OF THE SERVICES; OR (G) ANY DAMAGE TO ANY USER’S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE COMPANY PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE). IN NO EVENT WILL THE COMPANY PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE COMPANY PARTIES TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED THE AMOUNT PAID, IF ANY, BY YOU TO COMPANY FOR THE SERVICES DURING THE TERM OF YOUR SUBSCRIPTION. YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF COMPANY’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE COMPANY PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE COMPANY PARTIES. BY ACCESSING THE SERVICES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” COMPANY IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.

Company reserves the right, at any time, in Company’s sole and exclusive discretion, to amend, modify, suspend, or terminate the Services, Company Materials, or any part thereof, and/or your use of or access to them, with or without notice. Company shall have no liability to you or any other person or entity for any modification, suspension, or termination, or any loss of related information. You further acknowledge that the Internet may be subject to security breaches, and as such, submission of your data or other information may not be secure. You agree to accept sole and exclusive responsibility (as between Company and you) for adequate protection of your data and/or devices and equipment used in connection with the Services. You are solely responsible for your interactions with other users of the Services, whether online or offline. You agree that the Company Parties have no responsibility or liability whatsoever for the conduct of any user.

Indemnification

You (and any third party on whose behalf you operate an Account or activity on the Services) agree to indemnify, defend, and hold harmless the Company Parties from any claims, liabilities, damages, losses, costs, and/or expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with the following (whether resulting from your activities on the Services or those conducted on your behalf): (i) your access to or use of the Services; (ii) your breach or alleged breach of these Terms of Use; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property, or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authority, or (v) any misrepresentation made by you. You agree that the Company Parties will have no liability in connection with any such breach or unauthorized use, and you agree to indemnify, defend, and hold harmless any and all resulting loss, damages, judgments, awards, costs, expenses, and attorneys’ fees of the Company Parties in connection therewith. You also agree to indemnify, defend, and hold harmless the Company Parties from and against any claims brought by third parties arising out of your use of the Services, your violation of these Terms of Use, or the infringement by you or made under your Account, of any intellectual property or other right of any person or entity. You will cooperate as fully required by Company in the defense of any claim. The Company Parties reserve the right to assume exclusive control of its defense in any matter subject to your indemnification, which shall not excuse your obligation to indemnify the Company Parties. You shall not settle any dispute subject to your indemnification under these Terms of Use without written consent from Company. You will not settle any claim without the prior written consent of Company.

Dispute Resolution

Any controversy or claim arising out of or relating to these Terms of Use, or the breach thereof, including all questions of arbitrability, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules by a sole arbitrator. The parties hereto shall endeavor to agree upon the arbitrator, and if they fail to do so within twenty-one (21) days of the commencement of the Arbitration, the appointment shall be made by the AAA in accordance with the Commercial Arbitration Rules. The place, or legal seat of arbitration, shall be California, and the language of the arbitration shall be English You may only bring claims in your individual capacity on your own behalf, and not in any representative capacity or on behalf of any class or purported class, and no arbitration you commence hereunder may be joined with or include any claims by any other persons. Each party shall be exclusively responsible for paying its own arbitration filing fees, which may later be allocated by the arbitrator as set forth below. The arbitrator shall issue a reasoned award and, subject to the limitation of liability set forth above, shall have the power to grant any interim or provisional measures that the arbitrator deems appropriate, including, but not limited to, injunctive relief and specific performance, and any interim or provisional measures ordered by the arbitrator may be specifically enforced by any court of competent jurisdiction as a final award. Nothing herein, however, shall authorize the arbitrator to act as amiable compositeurs, to proceed ex aequo et bono, or to exercise rights of jura novit curia. Each party hereto retains the right to seek interim measures from a judicial authority, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. The arbitrator shall award the prevailing party, if any as determined by the arbitrator, its reasonable costs, including reasonable attorney’s fees. Judgment on any award rendered by the arbitrator may be entered in any court of competent jurisdiction. No information concerning an arbitration, beyond the names of the parties, their counsel or the relief requested, may be unilaterally disclosed to a third party by any party unless required by law. Any documentary or other evidence given by any party or witness in any arbitration shall be treated as confidential by any party whose access to such evidence arises exclusively because of its participation in the arbitration and shall not be disclosed to any third party (other than a witness or expert), except as may be required by law. Any party who commences any judicial proceeding in connection with an arbitration initiated hereunder shall endeavor to have the judicial record of any such proceeding sealed to the extent permitted by law.

Time Limitation on Claims

YOU AGREE THAT ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATED TO YOUR RELATIONSHIP WITH COMPANY MUST BE BROUGHT WITHIN ONE YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, YOUR CLAIM WILL BE PERMANENTLY BARRED.

Service Use Termination

You may terminate your use of the Services at any time. If you wish to terminate your access to the Platform and/or Services, you can do so by contacting us via email at support@modobio.com If you wish to terminate your Account with the App Store, you must follow the cancellation process pursuant to such App Store’s terms of service, which can be found at https://www.apple.com/legal/internet-services/itunes/us/terms.html and https://play.google.com/intl/en-US_us/about/play-terms/index.html. If you terminate your Account, your subscription to the Platform will remain active until the end of your then-current subscription period. We may terminate your use of the Services at any time by sending notice to you at the email address you provided or otherwise contacting you or posting a notice on the Services. If we terminate your use of the Services because you have breached these Terms of Use or any other agreement you have entered into with us, you will not be entitled to any refund of any fees associated with your use of the Services. We are not required to provide you with notice prior to terminating your use of the Services or a reason for such termination.

Consent to Communications

By creating an Account or otherwise providing us with your contact information and using the Services, you agree to receive communications, including via e-mail, text messages, phone calls, social media, and push notifications from or on behalf of Company at the email address or telephone number (including mobile number) you provided. Please read our Privacy Policy to learn more about our communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

Governing Law

These Terms of Use shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to its principles of conflicts of laws. The United Nations Convention for the International Sale of Goods is excluded and shall not apply.

No Third-Party Rights

Unless expressly stated in these Terms of Use to the contrary, nothing herein is intended to confer any rights or remedies on any persons other than you, Company, and our successors and assigns. Nothing in these Terms of Use is intended to relieve or discharge the obligation or liability of any third persons to you and Company and our successors and assigns, nor shall any provision give any third parties any right of subrogation or action over against you, Company, and our successors and assigns.

Force Majeure

We will not be deemed to be in breach of these terms or liable for any breach of these Terms of Use or our Privacy Policy due to any event or occurrence beyond our reasonable control, including without limitation, acts of God, terrorism, war, invasion, failures of any public networks, electrical shortages, earthquakes or floods, civil disorder, strikes, fire, pandemics/epidemics, or other disaster.

No Waiver, Assignment Rights

Company’s failure to exercise or enforce any right or provision of these Terms of Use shall not be deemed a waiver of such right or provision in that or any other instance. Company may assign this agreement at any time without notice to you. You may not assign this agreement to anyone else, and any attempt by you to assign shall be void. If any provision of these Terms is held invalid, illegal, or unenforceable under any applicable statute or rule of law, it is, to the extent necessary, deemed modified in order to comply with applicable law, and the remaining provisions shall not be affected in any way.

Modification

Company reserves the right to modify these Terms of Use from time to time in its sole discretion, effective upon posting. In the event of such changes, we will post the changes on this Site and/or notify you via email. Any use of this Site after such changes shall be deemed an acceptance of those changes. You should periodically visit this page to review the current Terms of Use, so you are aware of any such revisions to which you are bound.

Contact Us

if you have any questions regarding these Terms of Use, please contact us at:

Modo Bio LLC
14275 N 87th Street, Suite 115
Scottsdale, AZ 85260
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