Yes Health Terms of Service
Yes Health Inc. welcomes you! We provide individual and group based services to help people effect healthy behavior changes. Our consumer program includes mobile, message-based limited health coaching services, nutrition, fitness and overall well-being content, and progress tracking. This document describes your rights and our rights relating to Yes Health’s services, so please review it carefully.
Use of the Yes Health Application and the Yes Health Service
1. What Are The Terms of Service?
This Terms of Service (“TOS”) is a contract between you and Yes Health, a Delaware corporation (“Yes Health,” “we,” “us,” or “our”) for use of the Yes Health mobile software application (the “Software”) and the services provided through the Software (together with the Software, the “Service”). As a subscriber to our Service (a “Subscriber”), you may use and access the Service that you have enrolled in, subject to your compliance with the terms and conditions set forth in the TOS. By using the Service, you represent that you are not a person barred from receiving or accessing the Service under the laws of the United States, you are at least eighteen (18) years of age, that you possess the legal right and ability to agree to, abide by, and be bound by this TOS. By using or accessing the Service, you confirm that you agree to these terms. If you do not agree, do not use the Service.
2. How do I Register for the Service?
As a Subscriber, you will be required to register to establish an account with us in order to access the Service and your account. When you register, you agree to (a) provide true, accurate, current and complete information about yourself, and (b) maintain and update your information to keep it true, accurate, current and complete. You acknowledge that, if any information provided by you is untrue, inaccurate, not current or incomplete, Yes Health shall have the right to immediately terminate your account and your use of the Service and to delete your Yes Health Communications (as defined below). As a Subscriber, you will be able to access, through your account, communications and messages (“Communications”) transmitted by you and your Coach (as defined below). Any information provided or transmitted through the Service will become part of your Yes Health Communications. You agree to provide accurate and thorough information for your Yes Health Communications. All information, data, content, text, pictures, video, communications and other content that you transmit, upload, post or otherwise provide to us in using the Service (collectively, “Content”), as well as the contents of your Yes Health Communications is subject to our Privacy Statement, that can be found within the Yes Health Software application.
3. Is a Username and Password Required?
When you register, your email address will serve as your username and you will be asked to select a password. Your email address and password combination (“Login Credentials”) are for your individual use only, and you will not permit any other person to use your Login Credentials or otherwise access your account through your Login Credentials. You will be responsible for maintaining the confidentiality of your Login Credentials and agree not to transfer, share, disclose or resell your Login Credentials, or otherwise transfer, share or resell your access to the Service, to any third party, except as permitted by this TOS. You agree to immediately notify Yes Health of any actual or suspected unauthorized use of your Login Credentials or any other breach of security related to your account or the Service, and to ensure that you “log off”/exit from your account at the end of each session. We are not liable for any loss or damage arising from your failure to comply with any of the foregoing obligations. You are entirely responsible for all activities occurring in and communications transmitted through your account.
4. How May I Use the Service?
The Service is intended to allow individuals to conveniently manage their personal health-related goals. Yes Health accounts are not for use by healthcare providers or for any other commercial or non-personal purpose.
5. Is Internet Access Required?
To access the Service by means of a cellular data connection on a portable device (such as a smartphone), you will need a data access plan from your wireless carrier. In order to access the Service via Wi-Fi or Internet connection, you may need a compatible device, software, browser and Internet access. Check with your provider to learn if any fees apply. You are solely responsible for any fees or costs you incur to access the Service through any wireless or other communication service. We may deny account sign-up based on your location or other reasons. You must not attempt to work around any such limitations in the Service. Some Service features may not be available in some languages and locations.
6. Who Can Use the Service?
The Service is only available to users who are subscribers to the Service. In using the Service, your Coach can create a follow-up communication plan that is specific to you. The Yes Health Software may send automated emails to your designated email account or in-app messages to your designated mobile phone, and ask you to check-in with and otherwise provide information to, your Coach or the Subscriber group. You can then log into the Software application and respond to or otherwise communicate with your Coach and separately with other Subscribers through the Yes Health Software application. In communicating with your Coach or separately with other Subscribers through the Yes Health Software application, you will be able to respond to questions from your Coach or the Subscriber group and otherwise provide information about you, such as your progress.
7. How Will My Coach Communicate With Me?
Yes Health will assign to each Subscriber a dedicated, small team of coaches (each a “Coach”). The information you provide to us through the Service is collected, consolidated, and stored by us, and delivered to your Coach (or a designee) electronically. Your Coach will be able to respond to you about your condition through the Yes Health Software application, but may choose to contact you in other ways. You agree that the services provided by your Coaches are part of the Service provided by Yes Health. We reserve the right, at any time and from time to time, temporarily or permanently, in whole or in part, to limit, modify or discontinue the Service, or any feature or functionality of the Service (including, without limitation, the services provided by your Coaches), with or without notice to you. You agree that we will not be liable to you or to any third party for any modification, suspension, termination or discontinuance of the Service, in whole or in part, and your continued use of the Service after any changes made to the Service constitutes your acceptance of such changes.
8. What is the Cost of the Service?
There are three program options available directly to consumers on a subscription basis: an annual subscription program, a monthly subscription program and a 16-week program. For the annual subscription program the Service costs $59 per month, for 12 months, or $708 in total. The annual subscription program includes personalized coaching service available 14 hours per day, 7 days a week, unlimited use of the app features, one digital scale and one fitness activity tracker.
For the monthly subscription program the service costs $69 per month and is renewable on a monthly basis. The monthly program includes personalized coaching service available 14 hours per day, 7 days a week, unlimited use of the app features, but does not include any equipment.
For the 16 week program the Service costs $199. The 16-week program includes personalized coaching service available 14 hours per day, 7 days a week, unlimited use of the app features and one fitness activity tracker.
Yes Health sometimes offers trial subscriptions to new users. After the expiration of the trial, users become paying subscribers or request to terminate their subscription. If devices are included with your offer, Yes Health will ship them upon subscription payment.
In addition, Yes Health offers corporate programs to enterprise customers such as health plans, employers or provider organizations. Corporate programs may include different services and pricing to end users.
Users that are eligible for Yes Health through their health plan or employer may be covered by those organizations and the program might be available at no cost to the user.
9. Is there a Money Back Guarantee for the Service?
There is a 45-day money back guarantee for the annual subscription program and the monthly subscription program if you are not satisfied after using the Service. To receive a refund, you will need to email customer service at support@yeshealth.com and request a refund within 45 days of the first payment. In addition, for annual subscriptions, you will need to contact Fitbit’s customer service department directly at help.fitbit.com/CWsupport within 45 days of the first payment to coordinate return of the digital scale and fitness activity tracker directly to Fitbit in accordance with Fitbit’s full warranty and return policy located at http://www.fitbit.com/returns. When contacting Fitbit, please reference Yes Health as the wellness program partner and provide the email address used to place your original order with Yes Health. If you timely request a refund and, if applicable, timely return the digital scale and fitness activity tracker to Fitbit, you will receive a full refund of the payment made in the form of a credit to the credit card on file for your account within four weeks of notifying us, or if applicable, Fitbit’s receipt of the returned equipment. If either the notice or equipment delivery dates above are not met there will be no refund of the subscription fee and you will be charged, the previously agreed to subscription fee.
Fitbit’s equipment’s comes with a 365-day manufacturer’s warranty. If the Fitbit digital scale or fitness activity tracker are defective, you should contact Fitbit’s customer service department directly at help.fitbit.com/CWsupport to coordinate troubleshooting the problem or obtain a replacement, if necessary.
10. What if There is a Disruption in Service?
You acknowledge that the Service or Software may become unavailable, and that there may be interruptions in your ability to access or use the Service or Software. You understand and acknowledge that due to circumstances both within and outside of our control, the access to the Service and Software may be interrupted, suspended or terminated. We retain the right at our sole discretion to deny access or use of the Service or Software to anyone (including access or use of an established account), at any time and for any reason without liability to you.
11. Can I Share My Account With Someone Else?
Yes Health Service accounts should not be shared. If you share your Login Credentials with anyone, that other person may be able to take control of the account, and we may not be able to determine who the proper account holder is. We will not have any liability to you (or anyone you share your Login Credentials with) as a result of your or their actions under those circumstances.
12. What are the Rules For My Use of the Service?
Your use of the Service must be in accordance with this TOS, and you agree that you are responsible for your own conduct and all conduct under your account. This means all Content, which is transmitted, uploaded, posted or otherwise provided by you using the Service, such as text, images, videos and anything else you can think of, no matter what the form or technical structure, is your sole responsibility as the person who created the Content or introduced it into the Service. This applies whether the Content is kept private, shared or transmitted using the Service or any third party application or Service integrated with the Yes Health Service. If we find that any Content in your account violates our Terms of Service (including by violating another person’s intellectual property rights), we reserve the right to unshare or take down such Content.
13. Are there Limitations on My Use of the Service?
(a) You agree that you will not: (i) modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any information, software, products or Service obtained from or through the Service or Software, or remove or alter any copyright or proprietary notices appearing thereon, or (ii) use any data mining features, robots, spiders or similar data gathering and extraction tools in your use of the Service or Software to retrieve, index, “scrape,” “data mine,” or in any way gather content or data from the Service or Software. You agree not to access or use the Service or Software in an unlawful way or for any unlawful or fraudulent purpose. Use, reproduction, copying, or redistribution of Yes Health’s trademarks, service marks and logos is strictly prohibited, unless you first obtain Yes Health’s written permission.
(b)Not for Emergency Use. The Service is not designed or intended for use in emergencies or life-threatening situations. You understand that any Communications transmitted through the Service may not be immediately monitored or received by your Coach and that we will not be liable to you for your inability, delay or interruption in communicating with your Coach through the Service, whether in emergencies or life-threatening situations or otherwise. If you have a medical or other emergency, call 911 immediately.
(c) No Medical Advice. Nothing in this TOS should be construed as the dispensing of medical advice, directly or indirectly, by Yes Health. Yes Health does not offer or provide medical advice, treatment or care or a substitute for any of the foregoing. The Yes Health application for mobile devices is not designed to, and does not provide medical care, diagnosis, treatment or advice. ALWAYS SEEK AND NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE, OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ IN CONNECTION WITH OUR SERVICE. Do not delay seeing a physician if you think you have a medical problem, and call 911 if you have a medical emergency.
(d) Comply with the Law. While using the Software and Service you will comply with all applicable laws, rules and regulations, including U.S. export control laws. In addition, we expect users of the Software and Service to respect the rights and dignity of others. Your use of the Software and Service is conditioned on your compliance with the rules of conduct set forth in this section. Yes Health shall have the right, but not the obligation, to monitor your activities (including your transmission of Subscriber data) to determine whether you are in compliance with this TOS. Yes Health reserves the right to terminate your account without notice to you in the event of your failure to comply with such rules, and/or to delete any Subscriber data transmitted by you which does not comply with such rules.
(e) Each of Yes Health’s health Coaches is registered, licensed, or certified in his or her profession (e.g., dietitians, nutritionists, nurses, certified strength and conditioning coach) in at least one state or nationally, as applicable; however, your health Coach may not be registered, licensed, or certified in your state.
14. Once I Have an Account, What Are My Rights in the Yes Health Service?
Once your account is created and you accept this TOS, we grant you a limited, non-exclusive license to use the Service subject to this TOS, for so long as you are not barred from receiving the Service under the laws applicable to you, until you close your account voluntarily or until we close your account pursuant to this TOS. In addition, we grant you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Software provided to you by or on behalf of Yes Health, for the sole purpose of enabling you to enjoy the benefit of the Service, subject to any applicable license terms provided with the Software and this TOS, until your rights are terminated in accordance with such license and/or this TOS.
15. How May Yes Health Change or Cancel the Service?
We continuously work to improve the Service and may change the Service at any time. Additionally, there are reasons why Yes Health may stop providing portions of the Service, including (without limitation) that it’s no longer feasible for us to provide it, the technology advances, customer feedback indicates a change is needed, or external issues arise that make it imprudent or impractical to continue. We may change the TOS, and will notify you by posting new terms. If you do not agree to the changes, you must cancel and stop using the Service. If you do not stop using the Service, the new terms apply to you. If the Service is canceled, your right to use the Service stops immediately.
16. Does Yes Health Allow Ads?
Our business model is to make the Service so valuable that our users will opt to pay for a Premium Service. However, we may display advertisements and promotions on or in connection with the Service, some of which may be paid for by third parties (i.e. recipes). We also provide announcements within the Software. These messages may promote other Yes Health products and Service, demonstrate various uses of our Service and promote certain third party applications and Service that work with Yes Health. We pledge to you that we will not engage in any data mining of your Content in order to target advertising at you. For more information, please see our Privacy Statement. Inasmuch as some advertising or other messaging content we provide will be based upon information provided by third parties, we shall not be responsible or liable for any loss or damage of any sort incurred by you as a result of any advertisements or other messages. Furthermore, your interactions with advertisers found on or through the Service, including, without limitation, all reliance upon advertising, all commercial transactions and legal obligations associated therewith, are solely between you and such advertisers.
17. What if I Use a Link to a Third-Party Application?
Links to other websites and other online material are provided for your convenience to assist you in locat-ing additional information. Yes Health is not responsible for the content of these sites or their availability. We may have little or no control over such sites or developers and, accordingly, you acknowledge and agree that (i) we are not responsible for the availability of such external sites, content or applications; (ii) we are not responsible or liable for any content or other materials or performance available from such sites or applications and (iii) we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, materials or applications. Yes Health does not endorse, warrant or guarantee the service, products or information described or offered through these other sites. It is your responsibility to examine the copyright and licensing restrictions of linked content and to secure all necessary permission. You cannot assume that other sites will abide by the same privacy and security provisions as Yes Health. Yes Health does not warrant the accuracy, completeness or usefulness of any information provided on any other web site.
18. How Can I Send A Notice to Yes Health?
You may notify us by emailing to support@yeshealth.com. We may send you, in electronic form, informa-tion about the Service, additional information, and information the law requires us to provide. You consent to Yes Health providing you required information by e-mail at the e-mail address you specified when you signed up for the Service. Notices e-mailed to you will be deemed given and received when the e-mail is sent. If you do not consent to receive notices electronically, you must stop using the Service.
19. How May I Close My Account?
You may cancel the Service at any time and for any reason by emailing us at support@yeshealth.com. Those sections of this TOS that by their terms apply after termination of this contract will survive any termination of this contract.
Privacy
20. What are my Privacy Rights?
You explicitly consent to the use of the information you provide via the Service, including the disclosure of data, in accordance with this TOS and our Privacy Statement. Our Privacy Statement can be found in the Yes Health Software application and on the Yes Health website www.yeshealth.com. Certain Yes Health interactions and the protected health information (as defined by the Health Insurance Portability and Accountability Act of 1996 and the rules and regulations promulgated thereunder (“HIPAA”)) submitted thereunder may be subject to HIPAA.
21. What Kind of Content Can I Upload?
A Subscriber may upload pictures of meals, nutrition related pictures and fitness or well-being activity in Coach forum or group forum. You may not upload any Content that is libelous, defamatory, obscene, pornographic, threatening, invasive of privacy or publicity rights, abusive, illegal, or otherwise objectionable,or that would constitute or encourage a criminal offense, violate the rights of any party, or that would otherwise give rise to liability or violate any law. Yes Health has no control over submissions. Yes Health may, in its own discretion, remove, reformat, or store submissions. Yes Health shall have no obligation to monitor content uploaded to the Software application.
22. What are My Rights to the Content I Submit?
We do not claim ownership of the Content you provide on the Service. Your Content remains your property. We also do not control, verify, or endorse the content that you and others make available on the Service. You control who may access your Content. If you share Content, then you agree that anyone you have shared such Content with may use that Content. When you give others access to your Content on the Service, they can use, reproduce, distribute, display, transmit, and communicate to the public the Content. If you do not want others to have that ability, do not use the Service to share your Content. If you share Content on the Service in a way that infringes others’ rights, including privacy rights, you are breaching this contract. You confirm that you have the legal authority to consent to Yes Health processing all Content you provide. Yes Health operates the Service for the benefit of itself and its customers. Yes Health retains the right to block or otherwise prevent delivery of any type of e-mail or other communication to or from the Service as part of our efforts to protect the Service, protect our customers, or stop you from breaching this contract. The technology or other means we use may hinder or prevent your use of the Service. We may remove your Content from the Service at any time if you breach this contract.
If your Service is canceled, we may permanently delete your data from our servers. We have no obligation to return data to you after the Service is canceled. If data is stored with an expiration date, we may also delete the data as of that date. Deleted data may be irretrievable.
The Service is intended for individual management of personal health goals. It does not hold records for healthcare providers or other medical or case management purposes. User information stored by the Service is not designated record sets or protected health information as defined under U.S. regulations.
23. Will Yes Health Look At My Content?
Your privacy in your Content is a paramount concern for us, and we hope that we never need to examine anyone’s Content. However, there are limited circumstances in which we may have the need to review part or all of your Content, as discussed in our Privacy Statement and in this TOS.
24. Will Anyone Else See My Content?
Except as described in this TOS and in our Privacy Statement, unless you elect to enable others to view or have access to the Content you submit to the Service, no one else should see your Content without your consent.
25. What Rights Does Yes Health Have With Respect to My Content?
By using the Service and uploading Content, you are granting Yes Health a license to display, perform and distribute your Content and to modify (including for technical purposes such as making sure content is viewable on smart phones as well as computers and other devices) and reproduce such Content to enable Yes Health to operate the Service. You also agree that Yes Health has the right to elect not to accept, post, store, display, publish or transmit any Content in our sole discretion.
You agree that these rights and licenses are royalty free, worldwide and irrevocable (for so long as your Content is stored with us), and include a right for Yes Health to make such Content available to, and pass these rights along to, others with whom Yes Health has contractual relationships related to the provision of the Yes Health Service, solely for the purpose of providing such Service, and to otherwise permit access to or disclose your Content to third parties if Yes Health determines such access is necessary to comply with its legal obligations.
If you elect to use any third party service or application that is integrated with Yes Health, you also agree that the licenses granted to Yes Health in the preceding paragraph shall apply to Content that is submitted or uploaded through such third party service or application. If the third party service or application you elect to use would access or extract Content, you grant Yes Health the right and license to access and extract your Content in the same manner. Yes Health does not assume any responsibility for, or liability on account of, the actions or omissions of such third party applications or service providers.
Inasmuch as we rely upon your rights to upload and distribute your Content, you represent and warrant to Yes Health that you have the unfettered legal rights and authority to submit your Content to Yes Health, to grant the rights granted to Yes Health under this TOS and to make any publication or other distribution of that Content in your use of the Service. You also represent to us that, by submitting Content to Yes Health and granting Yes Health the rights described in this TOS, you are not infringing the rights of any person or third party.
Finally, you understand and agree that Yes Health, in performing the required technical steps to provide the Service to our users, may make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, Service or media.
Warranties, Liability and Indemnity
26. What are the Limitations on Warranties, Liability, and Indemnity?
(a) No Fiduciary Duty
Yes Health has no special relationship with or fiduciary duty to you. You acknowledge that Yes Health has no control over, and no duty to take any action regarding: which users gain access to the Service; what content you access via the Service; what affects the content may have on you; how you may interpret or use the content; or what actions you may take as a result of having been exposed to the content. You release Yes Health from all liability arising from or related to your acquiring or not acquiring content through the Service.
(b) No Warranty
EXCEPT AS SET FORTH IN SECTION 9 OF THIS TOS, YOUR USE OF THE SERVICE AND SOFTWARE IS AT YOUR SOLE RISK, AND THE SERVICES AND SOFTWARE ARE PROVIDED TO YOU ON AN “AS IS” AND “WHERE IS” BASIS, WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. EXCEPT AS SET FORTH IN SECTION 9 OF THIS TOS, YES HEALTH DOES NOT MAKE ANY EXPRESS WARRANTIES OR GUARANTEES ABOUT THE SERVICE OR SOFTWARE, AND YES HEALTH DOES NOT WARRANT THAT THE SERVICES, SOFTWARE, OR ANY PORTION THEREOF ARE ERROR OR BUG FREE, OR THAT YOUR USE OF THE SERVICE OR SOFTWARE WILL BE UNINTERRUPTED. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, YES HEALTH AND ITS SHAREHOLDERS, AFFILIATES, DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES OR OTHER REPRESENTATIVES (COLLECTIVELY, “AFFILIATES ”) HEREBY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND FREEDOM FROM COMPUTER VIRUSES. WITHOUT LIMITING THE FOREGOING, YES HEALTH AND ITS AFFILIATES MAKE NO WARRANTY AS TO THE RELIABILITY, ACCURACY, TIMELINESS, USEFULNESS, ADEQUACY, COMPLETENESS OR SUITABILITY OF THE SERVICE AND SOFTWARE PROVIDED BY YES HEALTH.
(c) Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YES HEALTH AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, INCLUDING WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, BODILY HARM, DEATH, LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, LOSS OF OTHER INTANGIBLES, AND LOSS OF SECURITY OF THE INFORMATION YOU PROVIDE TO THE SERVICE, IN CONNECTION WITH YOUR USE OF THE SERVICE OR SOFTWARE, OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, EVEN IF AN AUTHORIZED REPRESENTATIVE OF YES HEALTH IS ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES OR OF THE LIKELIHOOD OR POSSIBILITY OF SUCH DAMAGES. IN PARTICULAR, AND WITHOUT LIMITATION, YES HEALTH WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SERVICE OR FROM ANY COMMUNICATIONS BETWEEN YOU AND YOUR COACH. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES AND SITE IS TO STOP USING THE SERVICES AND SITE AND, IF APPLICABLE, OBTAIN A REFUND FOR SUBSCRIPTION FEES IN ACCORDANCE WITH SECTIONS 9 OR 27(C) OF THIS TOS, INCLUDING THE LIMITATIONS SET FORTH IN SECTIONS 9 OR 27(C). THE MAXIMUM LIABILITY OF YES HEALTH AND ITS AFFILIATES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE SHALL BE THE FEES ACTUALLY PAID BY YOU FOR THE SERVICE DURING THE SUBSCRIPTION PERIOD PRECEDING THE DATE COMPANY RECEIVES NOTICE FROM YOU OF ANY CLAIM OR LIABILITY UNDER THIS AGREEMENT.
Some or all of the limitations or exclusions in this Section 26(c) may not apply to you if your state, province, or country does not allow the exclusion or limitation of incidental, consequential, or other damages.
(d) Indemnity.
You agree to defend, indemnify and hold Yes Health, its subsidiaries, affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to any third party claims relating to your use of any of the Service, any violation of this TOS or any other actions connected with your use of the Service (including all actions taken under your account). In the event of such claim, we will provide notice of the claim, suit or action to the contact information we have for the account, provided that any failure to deliver such notice to you shall not eliminate or reduce your indemnification obligation hereunder.
Yes Health’s Rights
27. What Are Yes Health’s Rights with Respect to the Service?
(a) Content Rights. Subject to the licenses granted in this TOS and any third party rights to your Content, you own the Content you upload to the Yes Health Service.
(b) Intellectual Property Rights. You acknowledge and agree that Yes Health (and our licensors) own(s) all right, title and interest in and to the Service, including, without limitation, all software comprising a part of the Service and all text, pictures, drawings, screen layouts and other works of art created by, or on behalf of, Yes Health that appear as part of the Service (collectively, the “Yes Health Content”). You will not prepare derivative works of, distribute, or perform or display publicly any of the Yes Health Content.In agreeing to this TOS, you also agree that the rights in the Service and Software, including all intellectual property rights, such as trademarks, patents, industrial designs and copyrights, are protected by one or more of copyright, trademark, patent, trade secret and other laws, regulations and treaties, in addition to this TOS and in particular, you agree to not modify, create derivative works of, reverse engineer, decompile or otherwise attempt to extract source code from the Software.
(c) Right to Modify the Service. We retain the right, in our sole discretion, to implement new elements as part of and/or ancillary to the Service and any software, including changes that may affect the previous mode of operation of the Service. We expect that any such modifications will enhance the overall Service, but it is possible that you may not agree with us. We also reserve the right to establish limits to the nature or size of storage available to you, the number of transmissions and email messages, the nature or size of any index or library information, the nature of, or your continued ability to access or distribute, your Content and other data, and impose other limitations at any time, with or without notice. For example, if you use the free trial week of the Yes Health service, you will not enjoy all of the benefits provided to Subscribers of the Yes Health Premium service.
You also acknowledge that a variety of Yes Health actions may impair or prevent you from accessing your Content or using the Service at certain times and/or in the same way, for limited periods or permanently, and agree that Yes Health has 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. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of any part of the Service. However, if you are a Subscriber for Yes Health Premium (the “Premium Service”) and find that any such modifications or interruption of the Premium Service adversely affects you, you may notify our Customer Support team, explain the adverse impact the modification has created and, if you desire, request a termination of your Premium Service. Upon receipt of any such request, we will endeavor to promptly remedy the adverse impact caused by the modification, extend the duration of your Premium Service subscription for a period of time equal to the interruption and/or refund a portion of your Premium Service subscription fee equal to the remaining unused term of the Premium Service subscription, as we determine appropriate.
(d) Right to Engage Third Parties. Yes Health may from time to time engage certain affiliates or other third parties to provide technical or other Service relating to all or part of the Service, and you hereby agree that such third party involvement is acceptable. In addition, Yes Health may contract with third party resellers of the Yes Health Premium service, and payment processors to enable payments in your local currency and payment systems. Please see our Privacy Statement to understand the extent to which any affiliate or third party may have access to your account information.
(e) Right to Use Third-Party Software. Yes Health may from time to time include (as part of the Service and the Software) computer software supplied by third parties which is utilized by permission of the respective licensors and/or copyright holders on the terms provided by such parties. Yes Health expressly disclaims any warranty or other assurance to you regarding such third party software.
(f) Right to Update Our Software. In connection with any modification of the Service, Yes Health may automatically download Software updates to your computers and devices from time to time with the intention of improving, enhancing, repairing and/or further developing the Service. Yes Health will endeavor to provide you with the option of whether or not to install the update; however, in certain circumstances (e.g., security risks), Yes Health may require you to install the update to continue accessing the Service. In all cases, you agree to permit Yes Health to deliver these updates to you (and you to receive them) as part of your use of the Service.
28. What Do I Do If I Think I Have A Claim Against Yes Health?
(a) Let us Know About Your Complaint.
We want to know if you have a problem so we encourage you to contact our Customer Support team if you have any concerns with respect to the operation of the Service or any Software, as we want to ensure that you have an excellent experience.
(b) Initiating a Formal Claim.
If you conclude that we have not satisfied your concern and that you must pursue legal action, you agree that your claim must be resolved by the processes set forth in this TOS. Yes Health provides the Service to you on the condition that you accept the dispute resolution provisions described below, so if you initiate any claim against Yes Health in any other manner, you shall be in violation of this TOS and you agree that Yes Health shall be entitled to have such action dismissed or otherwise terminated and you agree to reimburse Yes Health for its reasonable costs incurred in defending against such improperly initiated claim. You agree that prior to initiating any formal proceedings against Yes Health, you will send us at support@yeshealth.com and state that you are providing a “Notice of Dispute.” Upon receipt of a Notice of Dispute, you and we shall attempt to resolve the dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. If the dispute remains unresolved, either you or we may initiate formal proceedings according to this TOS.
Except where our dispute is being resolved pursuant to an arbitration (as provided below), you agree that any claim or dispute you may have against Yes Health must be resolved exclusively by a state or federal court located in Marin County, California. You agree to submit to the exclusive personal jurisdiction of the courts located within Marin County, California (and, for the avoidance of doubt, to exclude the jurisdiction of any other court) for the purpose of litigating all such claims or disputes.
(c) Arbitration Agreement.
You and Yes Health agree that any and all disputes or claims that have arisen or may arise between us – except any dispute relating to the enforcement or validity of your, our or either of our licensors’ intellectual property rights – shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Our arbitration proceedings would be conducted by the American Arbitration Association (“AAA”) under its rules and procedures applicable at that time, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (to the extent applicable), as modified by our Arbitration Agreement. You may review those rules and procedures, and obtain a form for initiating arbitration proceedings at the AAA’s website. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is US$10,000 or less, either of us may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on us subject to the arbitrator’s discretion to require an in-person hearing. Attendance at an in-person hearing may be made by telephone by you and/or us, unless the arbitrator requires otherwise. The arbitrator will decide the substance of all claims in accordance with the laws of the State of California, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Yes Health users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court possessing jurisdiction over the parties, except for a limited right of appeal under the Federal Arbitration Act.
The AAA rules will govern the payment of all filing, administration and arbitrator fees, unless our Arbitration Agreement expressly provides otherwise. If the amount of any claim in an arbitration is US$10,000 or less, Yes Health will pay all filling, administration and arbitrator fees associated with the arbitration, so long as (i) you make a written request for such payment of fees and submit it to the AAA with your Demand for Arbitration and (ii) your claim is not determined by the arbitrator to be frivolous. In such case, we will make arrangements to pay all necessary fees directly to the AAA. If the amount of the claim exceeds US$10,000 and you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Yes Health will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous, you agree to reimburse Yes Health for all fees associated with the arbitration paid by Yes Health on your behalf, which you otherwise would be obligated to pay under the AAA’s rules.
YOU AND YES HEALTH AGREE, AS PART OF THE ARBITRATION AGREEMENT, THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. WE REFER TO THIS AS THE “PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS.” UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN YOUR OR OUR CLAIM WITH ANOTHER PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE OR CLASS PROCEEDING. THE ARBITRATOR MAY ONLY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER YES HEALTH USERS.
Except with respect to the Prohibition of Class and Representative Actions, if a court decides that any part of this Arbitration Agreement is invalid or unenforceable, the other parts of this Arbitration Agreement shall continue to apply. If a court decides that the Prohibition of Class and Representative Actions is invalid or unenforceable, then the entire Arbitration Agreement shall be null and void. The remainder of the TOS and its other dispute resolution provisions will continue to apply.
(d) Claims Are Time-Barred.
You agree that regardless of any statute or law to the contrary or the applicable dispute resolution process, any claim or cause of action you may have arising out of or related to use of the Service or otherwise under these must be filed within one (1) year after such claim or cause of action arose or you hereby agree to be forever barred from bringing such claim. The provisions of this section, entitled “Claims Are Time-Barred” shall be deemed to constitute a separate written legally binding agreement by and between you and us.
General Terms
29. Entire Agreement
This TOS constitutes the entire agreement between you and Yes Health and governs your use of the Service. This TOS supersedes any prior agreements or earlier versions of between you and Yes Health for the use of the Service. If, through accessing or using the Service, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party’s terms and conditions applicable thereto, and this TOS shall not affect your legal relationship with such third party. You acknowledge and agree that each affiliate of Yes Health shall be a third party beneficiary to this TOS and that such other companies shall be entitled to directly enforce, and rely upon, any provision of this TOS which confers a benefit on (or provides rights in favor of) them. Other than this, no other person or company shall be a third party beneficiary to this TOS.
30. Section Headings
The section headings in this TOS of Service are for convenience only and have no legal or contractual effect.
31. Termination.
This TOS is effective on the date you first access the Service or Software and shall remain effective until it is terminated. Either you or Yes Health may terminate your right to use the Service and Software at any time, with or without cause. The licenses granted by Yes Health to you under this TOS shall terminate without notice in the event you fail to comply with the terms and conditions of this TOS or any applicable additional policies. Upon any termination of your right to use the Service, your right to access or use the Software and Service will immediately cease. You agree that any termination of your use of the Software or Service may be effected without prior notice, and that Yes Health may immediately deactivate or delete your Login Credentials and/or bar any further communications within any Yes Health Software.
32. Assignment
We may assign, transfer, or otherwise dispose our rights and obligations under this contract, in whole or in part, at any time without notice. You may not assign this contract or transfer any rights to use the Service.
33. Copyright; Trademark
You acknowledge that the Software, Services and Yes Health Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services. Yes Health, and the names, logos and icons of Yes Health products and service may be either the trademarks or registered trademarks of Yes Health.
34. Severability
If any provision of this TOS is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this TOS and will not affect the validity and enforceability of any remaining provision.
35. Waiver
Failure to exercise or delay in exercising any right hereunder, or failure to insist upon or enforce strict performance of any provision of this TOS, shall not be considered waiver thereof, which can only be made by signed writing. No single waiver shall be considered a continuing or permanent waiver.
36. Force Majeure
Yes Health will not be responsible for failures to fulfill or delays in fulfilling any obligations due to causes beyond its reasonable control.
37. Notices for California Residents.
California state law allows any person to provide nutritional advice or give advice concerning proper nutrition – which is the giving of advice as to the role of food and food ingredients, including dietary supplements. This state law does NOT confer authority to practice medicine or to undertake the diagnosis, prevention, treatment, or cure of any disease, pain, deforming, injury, or physical or mental condition and specifically does not authorize any person other than one who is a licensed health practitioner to state that any product might cure any disease, disorder, or condition.
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Yes Health Software, please send an e-mail to support@yeshealth.com. You may also contact us by writing to our address at Yes Health, 35 Miller Avenue Suite # 273, Mill Valley, Ca. 94941 or by calling us at (415) 687-2200. California residents may reach the Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
Effective Date: March 1, 2018