1. Agreement
These Terms of Use (the "Agreement") constitute a legally binding agreement by and between Period Tracker, LLC. (hereinafter, "we" or "us") and you ("you" or "your") concerning your use of our mobile phone application, One, and this website (the "Services"). By using the Services, you represent and warrant that you have read, understand, and agree to be bound by this Agreement and our Privacy Policy, which is incorporated herein by reference and made part of this Agreement. IF YOU DO NOT UNDERSTAND THIS AGREEMENT, OR DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT USE THE SERVICES.
2. Privacy Policy
By using the Services, you consent to the collection and use of certain information about you, as specified in the Privacy Policy. Use of information we collect is subject to the Privacy Policy in effect at the time such information is used. In summary, all data collected by the Services is used for analytics, is anonymous, and cannot personally identify you in any way. In addition, we do not share your data with social media networks, we do not share your data with marketers, and we do not sell your data for monetary gain.
3. Changes to Agreement
WE RESERVE THE RIGHT TO CHANGE THIS AGREEMENT AT ANY TIME UPON NOTICE TO YOU, TO BE GIVEN BY: (I) THE POSTING OF A NEW VERSION; AND/OR (II) A CHANGE NOTICE ON THE SERVICES. IT IS YOUR RESPONSIBILITY TO REVIEW THIS AGREEMENT PERIODICALLY. You will be deemed to have agreed to any such modification or amendment by your decision to continue using the Services following the date in which the modified or amended Agreement is posted.
4. Eligibility
BY USING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST THIRTEEN (13) YEARS OLD AND ARE OTHERWISE LEGALLY QUALIFIED TO ENTER INTO AND FORM CONTRACTS UNDER APPLICABLE LOCAL, STATE, NATIONAL, AND INTERNATIONAL LAWS, RULES, AND REGULATIONS.
5. License Grant
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Services for your personal, noncommercial use only and as permitted by the features of the Services. We reserve all rights not expressly granted herein in the Services. We may terminate this license at any time for any reason, or no reason. The Services, or any portion thereof, may not be reproduced, duplicated, copied, modified, sold, resold, distributed, or otherwise exploited for any commercial purpose without our express written consent. Except as expressly set forth herein, this Agreement grants you no rights in or to our intellectual property or any other party. The license granted in this section is conditioned on your compliance with the terms and conditions of this Agreement. In the event that you breach any provision of this Agreement, your rights under this section will immediately terminate.
6. No Doctor-Patient Relationship
WE PROVIDE THE SERVICES FOR INFORMATIONAL PURPOSES ONLY. THE SERVICES DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL ADVICE OR OPINION. We are not medical professionals, and we do not provide medical services, or render medical advice. The Services are not a substitute for the advice of a medical professional, and the information made available on or through the Services should not be relied upon when making medical decisions, or to diagnose or treat a medical or health condition. If you require medical advice or medical services, you should consult a medical professional. YOUR USE OF THE SERVICES DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND PERIOD TRACKER, LLC. YOU HEREBY AGREE THAT YOU SHALL CONSULT YOUR PHYSICIAN BEFORE USING THE SERVICES. Your decision to rely on any information you obtain in connection with your use of the Services is at your sole discretion and risk. In addition, we do not promise any particular results regardless of whether you follow all the recommendations contained in the Services.
7. Third-Party Content
WE DO NOT: (I) GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY THIRD-PARTY INFORMATION ON THE SERVICE; OR (II) ADOPT, ENDORSE, OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY A THIRD-PARTY BY MEANS OF THE SERVICES. UNDER NO CIRCUMSTANCE WILL WE BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE SERVICES OR TRANSMITTED TO OR BY ANY THIRD-PARTY. You also understand that by accessing and using the Services, you may encounter information, materials, and subject matter that you or others may deem offensive, indecent, or objectionable. You agree to use the Services at your sole risk and that we, and our affiliates, partners, suppliers, and licensors shall have no liability to you for information, material, or subject matter that is found to be offensive, indecent, or objectionable.
8. Risk Assumption
YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE SERVICES. YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES, AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND, AND INDEMNIFY PERIOD TRACKER, LLC AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, REPRESENTATIVES, SUBLICENSEES, SUCCESSORS, AND ASSIGNS FROM ANY AND ALL CLAIMS, ACTIONS OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF SERVICES, OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM YOUR USE OF THE SERVICES.
9. User Information
You represent and warrant that all information you provide in connection with your use of the Services will be current, complete, and accurate, and that you will update that information as necessary to maintain its completeness and accuracy. You may be asked to provide a password or passcode in connection with your use of the Services. You are entirely responsible for maintaining the confidentiality of your password or passcode. We shall not be liable for any loss that you incur as a result of someone else using your password or passcode, either with or without your knowledge. You may be held liable for any losses we incur, as well as, our affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of your password or passcode.
10. Consent To Receive Email
In providing the Services, you may receive periodic email communications regarding the Services, new product offers, and information regarding the Services.
11. Third-Party Websites/Applications
The Services may include links to websites/applications of third parties ("Third-Party Websites/Applications"). We do not have control over the content and performance of Third-Party Websites/Applications. WE HAVE NOT REVIEWED, AND CANNOT REVIEW OR CONTROL, ALL OF THE MATERIAL, INCLUDING COMPUTER SOFTWARE, OR OTHER GOODS OR SERVICES, MADE AVAILABLE ON OR THROUGH THIRD-PARTY WEBSITES/APPLICATIONS. ACCORDINGLY, WE DO NOT REPRESENT, WARRANT OR ENDORSE ANY THIRD-PARTY WEBSITE/APPLICATION, OR THE ACCURACY, CURRENCY, CONTENT, FITNESS, LAWFULNESS, OR QUALITY OF THE INFORMATION MATERIAL, GOODS OR SERVICES AVAILABLE THROUGH THIRD-PARTY WEBSITES/APPLICATIONS. WE DISCLAIM, AND YOU AGREE TO ASSUME, ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES OR OTHER HARM, WHETHER TO YOU OR TO THIRD PARTIES, RESULTING FROM YOUR USE OF THIRD-PARTY WEBSITES/APPLICATIONS.
YOU AGREE THAT, WHEN ACCESSING OR USING A THIRD-PARTY WEBSITE/APPLICATION, YOU ARE RESPONSIBLE FOR: (I) TAKING PRECAUTIONS AS NECESSARY TO PROTECT YOUR AND YOUR COMPUTER SYSTEMS FROM VIRUSES, WORMS, TROJAN HORSES, MALICIOUS CODE, AND OTHER HARMFUL OR DESTRUCTIVE CONTENT; (II) ANY DOWNLOADING, USE, OR PURCHASE OF MATERIAL, THAT IS OBSCENE, INDECENT, OFFENSIVE, OR OTHERWISE OBJECTIONABLE OR UNLAWFUL, OR THAT CONTAINS TECHNICAL INACCURACIES, TYPOGRAPHICAL MISTAKES AND OTHER ERRORS; (III) ANY DOWNLOADING, USE OR PURCHASE OF MATERIAL THAT VIOLATES THE PRIVACY OR PUBLICITY RIGHTS, OR INFRINGES THE INTELLECTUAL PROPERTY AND OTHER PROPRIETARY RIGHTS OF THIRD PARTIES, OR THAT IS SUBJECT TO ADDITIONAL TERMS AND CONDITIONS, STATED OR UNSTATED; (IV) ALL FINANCIAL CHARGES OR OTHER LIABILITIES TO THIRD PARTIES RESULTING FROM TRANSACTIONS OR OTHER ACTIVITIES; AND (V) READING AND UNDERSTANDING ANY TERMS OF USE OR PRIVACY POLICIES THAT APPLY TO THOSE THIRD-PARTY WEBSITES/APPLICATIONS.
12. User Content
You agree that we may use any data you input into the Services, in anonymous form, to assist in the development and improvement of our products. We may use 1) personal information that you provide such as your email address to send you information about new feature updates or other information pertaining to our products; 2) technical data and related information, including but not limited to technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support, and other services; 3) We track your use of the Services such as how you navigate through the Services as well as your general use of the Services functionality. All tracked data is anonymous and not personally identifiable. You agree to waive, and hereby waive, any claims arising from or relating to the exercise by the Period Tracker, LLC Parties of the rights granted under this section, including without limitation any claims relating to your rights of personal privacy and publicity. You will not be compensated for any exercise of the license granted under this section.
You hereby represent and warrant that you own all rights, title, and interest in and to User Content or are otherwise authorized to grant the rights provided the Period Tracker, LLC Parties under this section. you represent and warrant that, when using the Services, you will obey the law and respect the intellectual property rights of others. Your use of the Services is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property generally. You agree not to post, transmit, display, perform, or distribute any content, information, or other materials in violation of any third-party’s copyrights, trademarks, or other intellectual property, or proprietary rights. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY VIOLATIONS OF ANY LAWS AND FOR ANY INFRINGEMENTS OF THIRD-PARTY RIGHTS CAUSED BY YOUR USE OF THE WEBSITE, APPLICATIONS, AND SERVICES. YOU BEAR THE SOLE BURDEN OF PROVING THAT CONTENT, INFORMATION, OR OTHER MATERIALS DO NOT VIOLATE ANY LAWS OR THIRD-PARTY RIGHTS.
We reserve the right to (i) remove, suspend, edit, or modify any content it has available at its sole discretion, including without limitation, any User Content at any time, without notice to you, and for any reason, or for no reason at all. We also reserve the right to access, read (anonymous, non-personal data), preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process, or governmental request, (ii) enforce these Terms of Use, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security, or technical issues, (iv) respond to user support requests, or (v) protect our rights, property, or safety and the safety of our users, and the public.
13. Intellectual Property
a. Software. You acknowledge and agree that the Services and all intellectual property rights associated therewith are, and shall remain, our property. Furthermore, you acknowledge and agree that the source and object code of the Services, directories, queries, algorithms, structure, design, and organization of the Services are our intellectual property and proprietary and confidential information of our affiliates, licensors, and suppliers. Except as expressly stated in this Agreement, you are not granted any intellectual property rights in or to the Services by implication, estoppel, or other legal theory, and all rights in and to the Services not expressly granted in this Agreement are hereby reserved and retained by us.
b. Trademarks. One, the One logo, Period AI, and the One Application Launch Icon (collectively, the "One Marks") are our trademarks. Other trademarks, service marks, graphics, logos, and domain names appearing on the Services may be the trademarks of third-parties. Neither your use of the Services, nor this Agreement, grant you any right, title, or interest in or to, or any license to reproduce or otherwise use, the One Marks, or any third-party trademarks, service marks, graphics, logos, or domain names. You agree that any goodwill in the One Marks generated as a result of your use of the Services will inure to our benefit, and you agree to assign, and hereby do assign, all such goodwill to us. You shall not at any time, nor shall you assist others to, challenge our right, title, or interest in or to, or the validity of, the One Marks.
c. Copyrighted Materials; Copyright Notice. All content and other materials available through the Services, including without limitation the One Period Tracker Website and the One Mobile Phone Application including text, graphics, and other files, and the selection, arrangement, and organization thereof, are owned by us. Except as explicitly provided, neither your use of the Services, nor this Agreement grant you any right, title, or interest in or to any such materials.
d. DMCA Policy. If you have evidence, know, or have a good faith belief that your rights, or the rights of a third-party have been violated and you want us to delete, edit, or disable the material in question, you must provide us with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and if available, an electronic mail address, at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to our designated agent at:
Attn: Copyright Agent
Period Tracker, LLC
250 Pharr Road, Suite 913
Atlanta, GA 30305
14. Service Provided "As-Is"
a. No Warranties. PERIOD TRACKER, LLC, ON BEHALF OF ITSELF AND ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, HEREBY DISCLAIMS ALL WARRANTIES. THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." TO THE MAXIMUM EXTENT PERMITTED BY LAW, PERIOD TRACKER, LLC, ON BEHALF OF ITSELF AND ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS, AND SUPPLIERS, EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER PERIOD TRACKER, LLC NOR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS, OR SUPPLIERS WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR, THAT ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PERIOD TRACKER, LLC, OR THROUGH OR FROM THE SERVICES, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
b. Your Responsibility For Loss Or Damage; Backup of Data. YOU AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. YOU WILL NOT HOLD PERIOD TRACKER, LLC OR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS, AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL, OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF: ANY CHANGES WHICH PERIOD TRACKER, LLC MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES); THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES; YOUR FAILURE TO PROVIDE PERIOD TRACKER, LLC WITH ACCURATE ACCOUNT INFORMATION; YOUR FAILURE TO KEEP YOUR PASSWORD, PASSCODE, OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL; THE LIMITATIONS ON PERIOD TRACKER, LLC'S LIABILITY TO YOU SHALL APPLY WHETHER OR NOT PERIOD TRACKER, LLC HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. YOU AGREE AND UNDERSTAND THAT IT IS YOUR RESPONSIBILITY TO BACKUP YOUR DATA AND TO ENSURE SUCH BACKUPS ARE SECURE.
c. Limitation of Liability. THE LIABILITY OF PERIOD TRACKER, LLC AND ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PERIOD TRACKER, LLC OR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA, OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO PERIOD TRACKER, LLC OR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. ADDITIONALLY, THE MAXIMUM LIABILITY OF PERIOD TRACKER, LLC AND ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS TO YOU UNDER ALL CIRCUMSTANCES WILL BE $50.00. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN PERIOD TRACKER, LLC AND YOU AND THAT THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
d. Application. THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS DO NOT IN ANY WAY LIMIT ANY OTHER DISCLAIMER OF WARRANTIES OR ANY OTHER LIMITATION OF LIABILITY IN THIS AGREEMENT, ANY OTHER AGREEMENT BETWEEN YOU AND PERIOD TRACKER, LLC OR BETWEEN YOU AND ANY OF PERIOD TRACKER, LLC'S THIRD-PARTY SERVICE PROVIDERS, LICENSORS, AND SUPPLIERS. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS, AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS, AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. PERIOD TRACKER, LLC'S THIRD-PARTY SERVICE PROVIDERS LICENSORS AND SUPPLIERS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS, WAIVERS, AND LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SERVICES OR OTHERWISE SHALL ALTER ANY OF THE DISCLAIMERS OR LIMITATIONS STATED IN THIS SECTION.
15. Your Representations And Warranties
You represent and warrant that your use of the Services will be in accordance with this Agreement and any other policies and guidelines, and with any applicable laws or regulations.
16. Government Use
If you are a part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of our Services is restricted in accordance with Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Services is a "commercial item," "commercial computer software" and "commercial computer software documentation". In accordance with such provisions, any use of the Services by the Government shall be governed solely by these Terms.
17. Software Updates
The software which you use may automatically download and install updates from time to time. These updates are designed to improve, enhance, and further develop the Services and may take the form of feature updates, enhanced functions, bug fixes or completely new versions. We reserve the right to update, revise, and/or remove features and/or functionality from the Services with or without notice to you. You agree to receive such updates as part of your use of the Services.
18. Indemnity
Without limiting any indemnification provision of this Agreement, you agree to defend, indemnify, and hold harmless Period Tracker, LLC and its officers, directors, employees, agents, affiliates, representatives, sublicensees, successors, assigns, and Third-Party Service Providers (collectively, the "Indemnified Parties") from and against any and all claims, actions, demands, causes of action, and other proceedings (collectively, "Claims"), including but not limited to, legal costs and fees arising out of or relating to: (i) Your breach of this Agreement, including without limitation, any representation or warranty contained in this Agreement; (ii) Your access to or use of the Services; (iii) Your provision to Period Tracker, LLC or any of the Indemnified Parties of information or other data; (iv) Your violation or alleged violation of any foreign or domestic, federal, state, or local law or regulation; or (v) Your violation or alleged violation of any third-party’s copyrights, trademarks, or other intellectual property or proprietary rights.
The Indemnified Parties will have the right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claim as to which you are required to defend, indemnify, or hold harmless the Indemnified Parties. You may not settle any Claim without the prior written consent of the concerned Indemnified Parties.
19. Governing Law; Jurisdiction And Venue
This Agreement, including without limitation this Agreement's interpretation, shall be treated as though this Agreement were executed and performed in Atlanta, Georgia and shall be governed by and construed in accordance with the laws of the State of Georgia without regard to its conflict of law principles. ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE SERVICES, OR THIS AGREEMENT, MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN ABOVE. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
a. Requirement of Arbitration. THIS SECTION AFFECTS YOUR RIGHTS, PLEASE READ CAREFULLY BEFORE AGREEING TO THESE TERMS BY USING OUR SERVICES. You agree that any dispute between you and Period Tracker, LLC, arising out of or relating to this Agreement, shall be decided by neutral, binding arbitration before a representative of JAMS in Atlanta, Georgia (unless you and Period Tracker, LLC mutually agree to a different arbitrator), who shall render an award in accordance with the substantive laws of Georgia and JAMS’ Streamlined Arbitration Rules & Procedures. A final judgment or award by the arbitrator may then be duly entered and recorded by the prevailing party in the appropriate court as final judgment. The arbitrator shall award costs (including, without limitation, the JAMS’ fee and reasonable attorney’s fees) to the prevailing party. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
b. Remedies In Aid Of Arbitration; Equitable Relief. This agreement to arbitrate will not preclude you or Period Tracker, LLC from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude you or Period Tracker, LLC from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. THE PROPER VENUE FOR ANY ACTION PERMITTED UNDER THIS SUBSECTION REGARDING “EQUITABLE RELIEF” WILL BE THE FEDERAL AND STATE COURTS LOCATED IN ATLANTA, GEORGIA; THE PARTIES HEREBY WAIVE ANY OBJECTION TO THE VENUE AND PERSONAL JURISDICTION OF SUCH COURTS.
20. Termination
Unless terminated by us, these Terms will remain in full force and effect while you use any of the Services. Subject to the last sentence of this Section, you may terminate the agreement reflected in these Terms at any time by deleting the One App from any mobile device on which you have installed any element of the Services and ceasing to use the Services. We may terminate these Terms with respect to you at any time, particularly if you violate any provision of these Terms. Any termination of these Terms shall also terminate the licenses granted hereunder. Upon termination of these Terms for any reason, you shall destroy and remove from all computers, mobile devices, and other storage media, all copies, and any intellectual property owned by Period Tracker, LLC. We shall have the right to inspect and audit your facilities to confirm the foregoing. Your representations, the Indemnity section, the Dispute Resolution section, the Liability Limitation section, and any other provision which by their nature are designed to survive termination shall survive any termination or expiration of these Terms.
21. Submitted Ideas
We are pleased to hear from you and welcome your comments about the Services. In the event that you submit ideas or suggestions for the Services ("Service Comments"), the Service Comments will be deemed, and will remain, our sole property. None of the Service Comments will be subject to any obligation of confidence on our part, and our Affiliates will not be liable for any use or disclosure of any Service Comments. Without limiting the foregoing, we will be entitled to unrestricted use of the Service Comments for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator, or inventor of the Service Comments.
22. Notices
All notices required or permitted to be given under this Agreement must be in writing. We shall give any notice by email sent to the most recent email address, if any, provided by you to us. You agree that any notice received from us electronically satisfies any legal requirement that such notice be in writing. YOU BEAR THE SOLE RESPONSIBILITY OF ENSURING THAT YOUR EMAIL ADDRESS ON FILE WITH US IS ACCURATE AND CURRENT, AND NOTICE TO YOU SHALL BE DEEMED EFFECTIVE UPON THE SENDING BY PERIOD TRACKER, LLC OF AN EMAIL TO THAT ADDRESS. You shall give any notice to us by means of: (1) U.S. mail, postage prepaid, to Period Tracker, LLC, 250 Pharr Road, Suite 913, Atlanta, GA, 30305; or (2) email to: . Notice to us shall be effective upon receipt.
23. License to Use the Service
Subject to the terms of this Agreement, we authorize you to use the Services for your personal, non-commercial purposes. The Services includes certain premium features that we offer for a fee ("Premium Services"); You are only authorized to use Premium Services if you have paid the applicable fees. You may not remove any copyright, trademark, or other proprietary notices that have been placed in the Services.
Except as expressly permitted above, modification, reproduction, redistribution, republication, uploading, posting, transmitting, distributing, or otherwise exploiting, in any way, the Service, or any portion of the Services, is strictly prohibited without our prior written permission. The Services is licensed, not sold, and you obtain no rights in any copy of software related to the Services other than the rights described in this paragraph. You agree, and represent and warrant, that your use of the Services, or any portion thereof, will be consistent with the foregoing license, covenants, and restrictions, and will neither infringe nor violate the rights of any other party, or breach any contract or legal duty to any other parties.
In addition, you agree that you will comply with all applicable laws, regulations, and ordinances relating to the Services or your use of it, and you will be solely responsible for your own individual violations of any of any such laws. You are solely responsible for obtaining the mobile device required to access the Services, and all fees associated therewith (such as computing devices and Internet Service Provider bandwidth charges). We retain the right to implement any changes to the Services (whether to unpaid or Premium Services) at any time, with or without notice.
You acknowledge that a variety of our actions may impair or prevent you from accessing the Services at certain times and/or in some way, for limited periods or permanently, and agree that we have no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to you, any content or service.
24. Paid Services
a. Billing Policies. Certain features offered on or through the Services may be provided for a fee. If you elect to purchase features on or through the Services, you agree to the pricing and payment terms, as we may update them from time to time. We may add new features for additional fees and charges, or amend fees and charges for existing products and services, at any time and at our sole discretion.
b. Refunds. THERE ARE NO REFUNDS FOR ANY PRODUCTS OR SERVICES. Additionally, if you delete the Services, you understand and agree that you shall receive no refund or exchange for any unused time for any portion of the Services, for any content, or for anything else.
c. Risk of Loss. All financial transactions made in connection with the Services will be processed by a third-party in accordance with their respective terms of use, privacy policy, and/or any applicable payment terms and conditions. In no event will we be responsible for the actions or inactions of any third-party payment processor, including, but not limited to, system downtime or payment service outages.
d. Payment Information; Taxes. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Services must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Services at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions, or other monetary transaction interactions.
25. Mobile Software from the App Store
The following applies to any Mobile Software you acquire from the App Store (“iTunes-Sourced Software”): You acknowledge and agree that this Agreement is solely between us, not Apple, and that Apple has no responsibility for the iTunes-Sourced Software or content thereof. Your use of the iTunes-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes-Sourced Software.
In the event of any failure of the iTunes-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-Sourced Software, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to us as provider of the software.
You acknowledge that Apple is not responsible for addressing any claims from you, or any third-party, relating to the iTunes-Sourced Software in your possession and/or use of the iTunes-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to us as provider of the software. You acknowledge that, in the event of any third-party claim that the iTunes-Sourced Software, or your possession and use of that iTunes-Sourced Software, infringes that third-party’s intellectual property rights, we, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
You and us acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the iTunes-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the iTunes-Sourced Software against you as a third-party beneficiary thereof.
26. General
This Agreement constitutes the entire agreement between us and you concerning your use of the Services. This Agreement may only be modified by a written amendment signed by an authorized executive of Period Tracker, LLC or by the unilateral amendment of this Agreement by us and by the posting by us of such amended version. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect.
A waiver by either party of any term or condition of this Agreement, or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. We may assign or transfer this Agreement at any time, with or without notice to you. This Agreement, and all of your rights and obligations hereunder, will not be assignable or transferable by you without our prior written consent. This Agreement will be binding upon, and will inure to the benefit of the parties, their successors and permitted assigns. You and Period Tracker, LLC are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship, is intended or created by this Agreement. The headings in this Agreement are for the purpose of convenience only and shall not limit, enlarge, or affect any of the covenants, terms, conditions, or provisions of this Agreement.
Effective date: March 18, 2020