Effective: October 19th, 2023
Last updated: October 19th, 2023
1. Acceptance of the Terms
PLEASE READ THESE TERMS BEFORE USING OUR ALGORITHM AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. BY ACCESSING OR USING OUR ALGORITHM, YOU AGREE TO AND ARE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, INCLUDING THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 11, DO NOT ACCESS OR USE OUR ALGORITHM. We reserve the right to change these Terms at any time, without any prior notice to you. Any updates to these Terms will be posted or linked to from our Digital Properties, including at https://www.om.app/, and will apply to you prospectively, so you should check back each time you use our Algorithm so you are aware of any changes, as they are binding on you.
2. Accessing the Algorithm
Minimum age: In order to accept these Terms and to access and use our Algorithm you must be at least 18 years of age. If you are between 13 and 18 years of age (or the age of legal majority where you live), you may only access or use our Algorithm under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are accessing or using our Algorithm on behalf of another person or entity, you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms. You hereby affirmatively represent that (a) you are at least 18 years of age; (b) you have the consent of your parent(s) or guardian(s) to access and use the Algorithm if you are under 18 years of age; (c) you have all the applicable rights and authority to grant OM Heals the rights granted herein; and (d) you have read, understood, and agree to be bound by these Terms.
Modification or Suspension of the Algorithm and right to terminate your use of the Algorithm: We reserve the right, subject to these Terms, to change, suspend, or discontinue any aspect of the Algorithm, in our sole and absolute discretion and without notice or liability, including by adding or eliminating certain features, removing access to any Content or discontinuing any of our offerings entirely. Any description of the features of the Algorithm offered by OM Heals shall not be considered to be a representation by OM Heals that such features will always be included in the Algorithm. We also reserve the right, subject to the Terms, to restrict access to some or all of the Algorithm, for all users or only for you, without notice or liability. Accordingly, for any reason, and without notice, all or any part of the Algorithm and Materials may become unavailable to you at any time and for any period. For the avoidance of doubt, we will not be liable if for any reason all or any part of the Algorithm, Digital Properties or Materials is unavailable at any time or for any period.
3. Prohibited Conduct and Content
You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and that you are solely responsible for your conduct while accessing or using our Algorithm. You will not:
Limited License and Intellectual Property Rights Our Algorithm and the text, graphics, images, photographs, videos, illustrations, trademarks, tradenames, service marks, logos, slogans and other content contained therein (collectively, the “OM Heals Materials”) are owned by or licensed to OM Heals and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, OM Heals and our licensors reserve all rights in and to our Algorithm and the OM Heals Materials. You are hereby granted a limited, nonexclusive, non transferable, non-sublicensable, revocable license to access and use our Algorithm and OM Heals Materials for your own personal use; however, such license is subject to these Terms and does not include any right to (a) sell, resell or commercially use our Algorithm or OM Heals Materials;(b) copy, reproduce, distribute, publicly perform or publicly display OM Heals Materials, except as expressly permitted by us or our licensors; (c) modify the OM Heals Materials, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Algorithm or OM Heals Materials; (d)use any data mining, robots or similar data gathering or extraction methods; and (e)use our Algorithm or OM Heals Materials other than for their intended purposes. Any use of our Algorithm or OM Heals Materials other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.
Copyright Complaints: We have a policy of limiting access to our Algorithm and terminating the access of users who infringe the intellectual property rights of others. If you believe that anything on our Algorithm infringes any copyright that you own or control, you may notify OM Heals’ Designated Agent via email at email@example.com. Please see 17U.S.C. §512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Algorithm is infringing, you may be liable to OM Heals for certain costs and damages.
To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless OM Heals and its shareholders, officers, directors, agents, licensors, suppliers, service providers, employees, partners, and representatives (the “OM Heals Parties”) from and against any and all claims, demands, causes of action, losses, expenses, costs, damages and/or liabilities, including reasonable attorney’s fees and court costs, incurred by the OM Heals Parties in any way related to your (a) your use or misuse of our Algorithm; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation of any rights of another; and (e) violation of any applicable law or regulation. You agree to promptly notify the OM Heals Parties of any third-party Claims and pay all fees, costs and expenses associated with defending such Claims (including but not limited to attorneys’ fees). You further agree to cooperate as requested by the OM Heals Parties in the defense of such claims. You further agree that the OM Heals Parties shall have control of the defense or settlement of any third-party Claims. You agree that you shall not, in any event, settle any claim or matter on behalf of OM Heals without the written consent of Om Heals. This indemnification obligation shall survive the cessation of your use of the Algorithm.
6. Disclaimer of Warranties
WE PROVIDE THE ALGORITHM ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS TO THE FULLEST EXTENT PERMISSIBLE BY LAW. THE OM HEALS PARTIES DO NOT REPRESENT OR WARRANT OR ENDORSE, EXPRESSLY OR IMPLICITLY, THAT THE ALGORITHM:(I) ARE RELIABLE OR WILL BE UNINTERRUPTED, (II) WILL BE FREE OF DEFECTS OR ERRORS, (III) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOU USE, (IV) WILL BE SECURE AND FREE FROM ANY HARMFUL COMPONENTS, SUCH AS VIRUSES OR OTHER MALWARE, OR (V) WILL CONTAIN MATERIALS THAT ARE ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY OR RELIABLE. THE OM HEALS PARTIES MAKE NO WARRANTIES OF ANY KIND OTHER THAN AS EXPRESSLY SET FORTH HEREIN AND YOUR USE AND ACCESS OF THE ALGORITHM AND CONTENT IS ENTIRELY AT YOUR OWN RISK. OM HEALS EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, REGARDING THE ALGORITHM AND CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY PURPOSE, OR FITNESS FOR A PARTICULAR PURPOSE. IN STATES AND JURISDICTIONS IN WHICH THE EXCLUSION OF WARRANTY IS PROHIBITED, SUCH EXCLUSIONS SHALL ONLY APPLY TO THE EXTENT PERMITTED.
7. Limitation of Liability
To the fullest extent permitted by applicable law, the OM Heals Parties will not be liable for any indirect, special, incidental or consequential damages of any kind arising out of or in any way related to the access to or use of the Algorithm, including but not limited to any damages caused by or resulting from reliance on any information obtained from the OM Heals Parties and from events beyond the OM Heals Parties’ reasonable control, even if OM Heals or the other OM Heals Parties have been advised of the possibility of such damages. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply. To the fullest extent permitted by applicable law, the total liability of the OM Heals Parties for any claim arising out of or relating to these Terms regardless of the form of the action, is limited to the greater of (a) the purchase price of the Product(s) giving rise to the claim or (b) $100. The limitation of liability set out above does not apply to liability resulting from our fraud, gross negligence or willful misconduct. If applicable, you hereby waive California Civil Code Section 1542 in connection with the foregoing, which states: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
8. Dispute Resolution/Binding Arbitration/Class Action Waiver: Please read the following section carefully because it requires you to arbitrate certain disputes and claims with OM Heals and limits the manner in which you can seek relief from us.
Except for any dispute arising out of or related to a violation of Section 3 or disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and OM Heals waive their rights to a jury trial and to have any dispute arising out of or related to these Terms, our Algorithm, resolved in court. Instead, all disputes arising out of or to these Terms, our Algorithm will be resolved through confidential binding arbitration held in San Diego, California before and in accordance with the Streamlined Arbitration Rules and Procedures (“Rules“)of the Judicial Arbitration and Mediation Algorithm (“JAMS“),which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
You and OM Heals agree that any dispute arising out of or related to these Terms, our Algorithm is personal to you and OM Heals and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action, or any other type of representative proceeding. You and OM Heals further agree that any such disputes will also not be consolidated with any other proceedings that involve any claim or controversy of any other party.
You and OM Heals agree that these Terms affect interstate commerce and that the enforceability of this Section 11 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA“), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and OM Heals agree that for any arbitration you initiate, you will pay the filing fee and OM Heals will pay the remaining JAMS fees and costs. For any arbitration initiated by OM Heals, OM Heals will pay all JAMS fees and costs. You and OM Heals agree that the state or federal courts of the State of California and the United States sitting in San Diego County have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any claim you may have arising out of or related to these Terms, our Algorithm must be filed within one year after such claim arose; otherwise, your claim is permanently barred, which means that you and OM Heals will not have the right to assert the claim.
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 9 by emailing us at firstname.lastname@example.org. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 11 of these Terms.
9. General Consent to Electronic Communications
These Terms constitute the entire agreement between you and OM Heals relating to your access to and use of our Algorithm. The failure of OM Heals to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity. Our failure to act with respect to a breach of the Terms by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. The provisions of these Terms are intended to be severable. If for any reason any provision of these Terms is held invalid or unenforceable in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner and without affecting the remaining provisions hereof, which shall continue to be in full force and effect.
11. Governing Law and Jurisdiction
These Terms will be governed by and construed in accordance with the laws of the state of Delaware, without regard to its conflicts of laws principles and specifically will not be governed by the United Nations Convention on contracts for the international sale of goods or services. You agree that jurisdiction and venue in any legal proceeding directly or indirectly arising out of or relating to the Algorithm, will be in San Diego County, California, and you hereby consent and submit to the exclusive personal jurisdiction and venue in San Diego County, California.
If you have any questions about these Terms, contact us via email at email@example.com.