ReShapeCare® Terms of Service
Last updated December 16, 2022
These Terms of Service (“Terms” or “Agreement”) govern your access to, and use of, any sites, applications (“Mobile App”), web portal, software, website, and services provided by ReShapeCare® (“ReShape”, “we”, “our”, and “us”) (collectively, our “Services”), which is a subsidiary of Reshape Lifesciences Inc. Please read these Terms carefully.
The term “you”, “your”, and “ReShape User”, as used in these Terms, means any person or legal entity who accesses or uses the Services and any person or legal entity who creates an Account to participate in programs or offerings of ReShape (individually a “Solution”, collectively “Solutions”). The term “ReShape Partner”, as used in these Terms, means ReShape User’s employer, and is included in the term “you”.
These Terms give you specific legal rights. In addition, you may also have other legal rights which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, mandatory and binding arbitration, limitations of liability, indemnification, waiver of jury trial, waiver of class action and waiver of punitive damages under these Terms will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.
THESE TERMS ARE A LEGAL AGREEMENT. BY ACCEPTING THESE TERMS THROUGH THE SERVICES OR APP STORE, OR BY ACCESSING AND USING THE SERVICES, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF YOURSELF AND/OR THE ENTITY THAT YOU REPRESENT IN CONNECTION WITH YOUR ACCESS AND USE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF AND/OR THE ENTITY THAT YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE AND ACCESS THE SERVICES AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE SERVICES.
BY ACCEPTING THESE TERMS THROUGH THE SERVICES, APP STORE, OR BY ACCESSING AND USING THE SERVICES, YOU AUTHORIZE RESHAPE TO PROVIDE THE SOLUTION(S) FOR WHICH YOU ARE ASSIGNED OR ENROLLED, AND CONSENT TO THE PROVISIONING OF SUCH SOLUTIONS BY RESHAPE. YOU REPRESENT AND WARRANT THAT YOU UNDERSTAND THE APPROPRIATE USE OF THE SERVICES IN SECTION 4 (“USE OF SERVICES”), RISKS ASSOCIATED WITH THE SERVICES AND SOLUTIONS, AND THE SERVICES’ AND SOLUTIONS’ LIMITATIONS AS PROVIDED IN SECTION 5 (“LIMITATIONS OF THE SERVICES”) OF THESE TERMS.
SECTIONS 1 THROUGH 6 (INCLUSIVE) INCLUDE IMPORTANT DISCLOSURES, RESTRICTIONS, REQUIREMENTS, AND/OR LIMITATIONS OF THE SERVICES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
SECTION 18 "DISPUTE RESOLUTION " CONTAINS A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT AFFECT YOUR LEGAL RIGHTS. These Terms require the use of mandatory binding arbitration to resolve disputes rather than jury trials or group litigation. Please follow the instructions in the Dispute Resolution Section (Section 18) below if you wish to opt out of this provision.
2. Overview, Eligibility, Term and Termination.
b. Term and Termination. These Terms will remain in full force and effect as long as you continue to access or use the Services, or until terminated in accordance with the provisions of these Terms. At any time, ReShape may, subject to agreements with ReShape Partners, (i) suspend or terminate your rights to access or use the Services (including your Account), or (ii) terminate these Terms with respect to you if ReShape, in good faith, believes that you have used or accessed the Services in violation of these Terms, including any incorporated guidelines, terms, or rules.
If we provide you access to the Services as a result of an agreement between ReShape and a ReShape Partner, termination of the agreement between ReShape and the ReShape Partner will also terminate your right to use the Services unless you agree to assume financial responsibility for the Services and Solutions and ReShape accepts such assumption. If we provide you access to the Service for a Free Trial (defined in Section 10, your Free Trial Account will be converted to a paid subscription after the Free Trial Term unless you terminate your subscription to the Solution(s). If we provide you access to the Services for a paid subscription Account, termination of your account is subject to Section 2(b). Upon termination, you will no longer have access to the Solutions, Services, or other Content provided through the Services. In addition to termination, ReShape reserves the right to pursue any and all remedies available to it in the event of such a breach or conduct. Upon any termination, you will have the opportunity for a period of 90 days to retrieve any of your data (and our obligations are only to use commercially reasonable efforts to retrieve such data, subject to any standard fees we may charge for our time in retrieving your specific data). To retrieve your data, please send an email to firstname.lastname@example.org. We will store any health, wellness information, or personal information as required by applicable law.
c. Effect of Termination. Upon termination of these Terms, your right to use the Services will automatically terminate. You understand that any termination of your right to use the Services may involve permanent deletion of your Account. ReShape will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account, loss of access to your data 90 days after termination, or User Submissions. Those provisions that by their nature are intended to survive termination or expiration of this Agreement shall so survive.
e. Security. ReShape cares about the integrity and security of your personal information. We endeavor to implement appropriate security measures. However, ReShape cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
3. Account Creation.
a. In order to use certain features of the Services, you will need to register for an account (an “Account”) and provide certain information about yourself or the entity that you represent, as prompted by the applicable registration form (“Registration Data”). By registering for an Account, you represent and warrant that: (i) all information you submit to ReShape is solely yours, truthful, and accurate; (ii) you will maintain the accuracy of such information (iii) you are responsible for maintaining the confidentiality of your Account login information and any User Submission (defined below); (iv) you are fully responsible for all activities that occur under your Account; and (iii) your use of the Services will not violate any U.S. or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You agree to immediately notify ReShape of any unauthorized use or suspected unauthorized use of your Account, or any other breach of security. ReShape shall have no liability associated with or arising from your failure to maintain accurate, complete, or up-to-date information within your Account. We are not responsible for verifying your Account information. You are responsible for paying all costs related to the transmission of data required to use the Services (downloading, installing, launching, and using). ReShape shall not be liable for fees charged by third parties.
4. Use of the Services.
a. Subject to these Terms, ReShape grants you a non-exclusive, personal, revocable, non-transferrable, limited license to use and access the Services in accordance with these Terms for the length of the Term by (i) participating in one or more Solution(s), or (iii) use or otherwise access the Services as explicitly permitted by these Terms (the “Permitted Purpose”). The rights granted to you in these Terms are subject to the restrictions in these Terms. ReShape reserves the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part) with or without notice to you. You agree that ReShape will not be liable to you or to any third-party for any modification, suspension, or discontinuation of the Services or any part thereof. “Term” is defined for purposes of these Terms as the length of time for which you have access to the Services and Solution(s) and/or maintain an Account, unless your Account or access to the Services and/or Solution(s) are terminated before the end of your subscription or program in accordance with these Terms.
c. Content Release; Disclaimer. All information publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom (or from whose Account) such Content originated and ReShape will not be liable for any errors or omissions in any Content, subject to applicable law. You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. We cannot control and have no duty to take any action regarding how you may interpret and use the Content, or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services.
d. Consent to receive promotional and transactional messages from ReShape.
i. Consent. If you consent to receive automated promotional and transactional text messages and calls from ReShape and its agents, these messages will be sent to the telephone number provided during the time of your opt-in. You agree that one of ReShape’s important methods of communication with you about updates, alerts, and information about your interaction with the Services is by text message and calls. Text message frequency varies based on your use of the Services and interaction with ReShape. Message and data rates may apply. You agree that ReShape and any third-party provider of text messaging services are not liable to you for violations of the Telephone Consumer Protection Act of 1991, or any related rules, regulations, or FCC Orders.
iii. Update Mobile Telephone Number. You agree to provide ReShape with a valid mobile number. ReShape User agrees to promptly update your mobile telephone number upon any change or deactivation of your telephone number and to opt-out of promotional and transactional text message and calls using your previous phone number before changing your telephone number applicable to the Services. To the extent permitted by applicable law, ReShape User agrees that ReShape will not be liable for failed, delayed, or misdirected delivery of any information sent through the text message program, any errors in such information, and/or any action you may or may not take in reliance on the information or Service.
e. Restrictions. You are prohibited from using the Services: (i) for any unlawful purpose; (ii) to solicit others to perform or participate in any unlawful acts; (iii) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (iv) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (v) to cause or launch any programs, spiders, robots, or scripts or other automatic or manual devices or processes for the purpose of extracting, scraping, indexing, surveying, or otherwise data mining any portion of the Services, or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; (vi) to attempt to gain unauthorized access to or impair any aspect of the Services, or the related systems, servers, or networks; (vii) for resale, time-sharing or other similar purposes; (viii) to stalk, harass, or harm another individual; (ix) to impersonate any person or entity, or otherwise misrepresent your affiliation with any person or entity; (x) to use any portion of the Services in any manner that may give a false or misleading impression, attribution, or statement as to us or any other person or entity; (xi) to decompile, reverse engineer, jeopardize the correct functioning of the Services, disassemble the Services, or otherwise attempt to derive the source code of the software that enables or underlies the Services, except as may be permitted by applicable law; (xii) create a competitive offering based on the Services; or (xiii) encourage or assist any third-party to do any of the foregoing. ReShape reserves the right to terminate your use of the Services for violating any of the prohibited uses.
f. You warrant, represent and agree that you will not contribute any Content, User Submissions, or otherwise use the Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy or other rights of any third party; (ii) violates any law, statute, ordinance or regulation or is otherwise illegal; (iii) is harmful, fraudulent, deceptive, misleading, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous or otherwise objectionable; (iv) impersonates any person or entity, including, without limitation, any employee or representative of ReShape; (v) contains a virus, Trojan Horse, worm, time bomb or other harmful computer code, file or program; (vi) jeopardizes the security of your ReShape Account or anyone else’s Account (such as allowing someone else to log into the Services as you); (vii) attempts, in any manner, to obtain or access the password, account, systems, or other security information from any other user or third party; (viii) violates the security of any computer network or cracks any passwords or security encryption codes; (ix) runs maillist, listserv or any form of auto-responder or “spam” on the Services or any processes that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); (x) copies or stores any significant portion of the Content; (xi) decompiles, reverse-engineers or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services; or (xii) denigrates or disrupts any network capacity or functionality.
g. Acceptable Use Policy. ReShape User shall not create User Submissions that contain: (1) objectionable, violent, or illegal content, as determined by ReShape’s sole discretion; (2) includes copyrighted or trademarked content you do not have the rights to include in such User Submission; or (3) culturally insensitive content. In the event that your User Submissions contain such prohibited content, ReShape reserves the right to terminate your Account and access and use of the ReShape Services at our sole discretion.
5. Limitations of Services.
a. Intended Use of Services. The Services are intended to be accessed and used for non-time-critical purposes. While we use reasonable efforts to include accurate and up-to-date information in the Services, we do not make warranties or representations to the accuracy of the information as such information is subject to frequent revisions. ReShape assumes no liability or responsibility for any errors or omissions in the Content of the Services. The information presented through self-guided Content such as videos, articles, trainings and other materials provided by the Solutions are general guidelines and recommendations only. Content should not be substituted for medical care or advice provided by a healthcare professional, as applicable. We encourage you to consult your healthcare provider before commencing the Solutions, which may include changes to your activity level and/or diet, among other things. You understand that individual users’ experience and results will vary and ReShape cannot guarantee that you will achieve your wellness or weight loss goals.
b. Service Interruptions; no refund or rebate. The Services may be suspended temporarily, without notice, for security reasons, systems failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. ReShape does not offer any specific uptime guarantee for the Services.
6. Limitations of Services Due to Third Parties.
a. General. The Services rely on or inter-operate with third-party services. These third-party services are beyond ReShape’s control, but their operation may impact on, or be impacted by, the use and reliability of the Services. You acknowledge and agree that: (i) the use and availability of the Services is dependent on third-party service providers, (ii) these third-party services may not operate in a reliable manner 100% of the time and they may impact on the way that the Services operate, and (iii) ReShape is not responsible for damages and losses due to the operation of these third-party services.
c. App Stores. You acknowledge and agree that the availability of the Mobile App is dependent on the third-party websites from which you download the Mobile App, e.g., the Google Play Store from Google or the App Store from Apple (each an “App Store”). You acknowledge that these Terms are between you and ReShape and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading Mobile App from it (see below). You agree to comply with such App Store terms and conditions, and your license to use the Mobile App is conditioned upon your compliance with such App Store terms and conditions. To the extent that such other terms and conditions from such App Store are less restrictive than or otherwise conflict with the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
The following terms and conditions apply to you only if you are using the Mobile App from the Apple App Store. You, as an end-user of the Mobile App, acknowledge that this agreement is entered into by and between us and you and not with Apple, Inc., and Apple, Inc. is not responsible for the Mobile App and/or its content. Notwithstanding the foregoing, you acknowledge that Apple, Inc. and its subsidiaries are third-party beneficiaries of this Agreement and that Apple, Inc. has the right (and is deemed to have accepted the right) to enforce this Agreement. You acknowledge that Apple, Inc. has no obligation whatsoever to maintain or support the Mobile App. You acknowledge that You have reviewed the Mobile App Store Terms and Conditions (located online at http://www.apple.com/legal/itunes/us/terms.html#APPS). This Agreement incorporates by reference the Licensed Application End User License Agreement (the “LAEULA”) published by Apple, Inc. (located online at http://www.apple.com/legal/itunes/appstore/dev/stdeula/). For purposes of this Agreement, the Mobile App is considered the “Licensed Application” as defined in the LAEULA and we are considered the “Application Provider” as defined in the LAEULA. If any terms of this Agreement conflict with the terms of the LAEULA, the terms of this agreement shall control. You further acknowledge and agree that in no event will Apple, Inc. be responsible for any claims relating to the App (including, without limitation, a third party claim that the Mobile App infringes that third party’s intellectual property rights) or your use or possession of the Mobile App, including but not limited to: (i) product liability claims; (ii) any claim that the Mobile App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You acknowledge and agree that, to the maximum extent permitted by applicable law, Apple, Inc. will have no warranty obligation whatsoever with respect to the App.
d. Third-Party Website Links and Referrals. The Mobile App may contain links to websites operated by third parties (“Third-Party Sites”) and referrals to third-party vendors (“Referred Vendors”). Such Third-Party Sites and Referred Vendors are not under our control. ReShape provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant or make any representations with respect to such Third-Party Sites or Referred Vendors. Your use of these Third-Party Sites is at your own risk.
e. Release Regarding Third Parties. ReShape is not responsible for third parties or their products and services, including, without limitation, the App Stores, Third-Party Services, ReShape Partners, Third-Party Sites, Referred Vendors, ISP and Operators. ReShape hereby disclaims, and you hereby discharge, waive and release ReShape and its licensors and suppliers from any past, present and future claims, liabilities and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, 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, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
7. Ownership and Intellectual Property.
a. ReShape Property. You acknowledge that all intellectual property rights, including, without limitation, copyrights, patents, trademarks and trade secrets, in the Services are owned by ReShape or its parent company, affiliates, licensors or suppliers. Your possession, access to and use of the Services do not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. ReShape, and its parent company, affiliates, licensors and suppliers, reserve all rights not granted in these Terms. The Services are licensed to you, not sold, under these Terms.
b. Ownership. Excluding any User Submissions (defined above) that you provide and copyrights, patents, trademarks, and trade secrets held and protected by you, ReShape Partner, or a third party, you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and its Contents are owned by ReShape. Neither this Agreement, nor your access to the Services, transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in this Section 7. ReShape and its subsidiaries or parent company, service providers, and affiliates, reserve all rights not expressly granted in this Agreement. There are no implied licenses granted under this Agreement.
c. Certain Restrictions. Nothing on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of ReShape’ trademarks, service marks, or copyrights without ReShape’s prior written permission. The rights granted to you in these Terms are subject to the following restrictions: (i) you agree not to license, sell, rent, lease, transfer, assign, distribute, host or otherwise commercially exploit the Services; (ii) you agree not to modify, make derivative works of, disassemble, reverse-compile or reverse-engineer any part of the Services; (iii) you agree not to access the Services in order to build a similar or competitive service or product; (iv) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (v) you agree not to upload, transmit or distribute any computer viruses, worms or any software intended to damage or alter a computer or communications network, computer, handheld mobile device, data, the Services, or any other system, device or property; (vi) you agree not to interfere with, disrupt or attempt to gain unauthorized access to the servers or networks connected to the Services or violate the regulations, policies or procedures of such networks; (vii) you agree not to access (or attempt to access) any of the Services by means other than through the interfaces that are provided by ReShape; and (viii) you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) that may be contained in, or displayed in connection with, the Services. Any future release, update or other addition to functionality of the Services shall be subject to these Terms.
d. You may only copy parts of the Services on to your own computer or mobile device and only for your own personal use in connection with your use of the Services. You may not use the Content of the Services in any other public or commercial way, nor may you copy or incorporate any of the Content of the Services into any other work, including your own website, without the written consent of ReShape. You must have a license from us before you can post or redistribute any portion of the Services. Other than with respect to User Submissions, ReShape retains full and complete title to all Content on the Services, including any downloadable software and all data that accompanies it. You must not copy, modify, or in any way reproduce or damage the structure or presentation of the Services, or any content therein. You may not use any part of the Services for any commercial purpose.
e. User Feedback. The Services may now or in the future permit you to upload or post to the Services or otherwise submit to us in various forms of content, such as reviews, ratings, posts, feedback, questions, comments, and suggestions, including how to improve the Services (collectively, “User Feedback”). By submitting any User Feedback, you agree that your User Submissions are voluntary, gratuitous, unsolicited, and without restriction, and will not place ReShape under any fiduciary or other obligation. By submitting any User Feedback, you hereby grant (and you represent and warrant that you have the right to grant) to ReShape an irrevocable, non-exclusive, royalty-free, and fully-paid license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Feedback in any manner ReShape deems appropriate. You will not have or obtain any rights in or to any form, media, or technology incorporating any of your User Feedback. You agree that you will not submit to ReShape any information or ideas that you consider to be confidential or proprietary. You further acknowledge that ReShape will be entitled to unrestricted use of the User Feedback for any purpose whatsoever, commercial, or otherwise. You are solely responsible for your User Feedback and assume all risks associated with your User Feedback, including any reliance on its accuracy, completeness, or usefulness by others, or any disclosure of User Feedback that personally identifies you or a third-party. ReShape cannot guarantee any confidentiality with respect to any User Feedback. You also agree that ReShape does not waive any rights to use similar or related ideas previously known to ReShape, developed by its employees or obtained from other sources.
8. No Warranties. The Services are provided to you as a convenience, “as is”, “as available”, and for your information only, and ReShape, our parent company, affiliates, licensors, and suppliers expressly disclaim any warranties and conditions of any kind, whether express ro implied, including thewarranties or conditions or merchantability, fitness for a particular purpose, accuracy, and non-infringement. Your use of the Services is at your own risk. ReShape does not warrant or represent that: (i) any materials, documents, recommendations, images, graphics, logos, design, audio, video, and any other information provided from or on the Services (collectively, the “Services Content”) is accurate or complete, free from defects, or will be corrected; (ii) the Services Content is up-to-date or current; (iii) ReShape has any obligation to update any Services Content; (iv) the Services Content is free from technical inaccuracies or programming or typographical errors, or will be compatible with your internet network, computer, or mobile device; (v) the Services Content is free from changes caused by a third party; (vi) your access to the Services will be free from interruptions, errors, computer viruses or other harmful components; or (vii) any information obtained in response to questions asked through the Services is accurate or complete. ReShape does not warrant, endorse, guarantee or assume responsibility for any service or product advertised or offered by a ReShape Partner or thierd party through, or in connection with, the Services, or any hyperlinked website or service.
9. Medical Disclaimer. The Services provide weight loss management and related information intended to assist users in their personal weight loss and wellness improvement efforts. ReShape is not a medical or mental health provider and ReShape does not, through the Services or otherwise, provide medical or mental health advice, treatment, or diagnosis. Nothing contained in the Services should be construed as medical or mental health advice, treatment, or diagnosis. Use of the Services should not be interpreted as a substitute for physician, psychologist, or other licensed or certificed mental health professional consultation, evaluation, or treatment. You are urged and advised to seek the advice of a physician, psychologist, or other licensed or certified mental health professional before beginning any weight loss effort, exercise regimen, or related wellness measures or initiatives, including without limitation the use of the Services. You acknowledge that the Services may involve risks and you assume those risks. ReShape has no obligation with respect to: (i) the appropriateness of you engaging with the Services; (ii) the results (or lack thereof) from using the Services; or (iii) any health-related matters arising in connection with your use of the Services. Please refer to your own medical or mental health provider.
10. Free Trial Users. For purposes of this Section 10, “Free Trial” means an account made available by ReShape to prospective users of the Services. ReShape provides a complimentary Free Trial Account to prospective users for at least 45 days (“Free Trial Term”), which provides full access to the application, with a limited number of coaching sessions available. Your use of the Free Trial is subject to these Terms. In addition to the restrictions outlined in these Terms, you are prohibited from using the Free Trial Account in any manner: (i) other than for product evaluation purposes; (ii) to process, use, transmit, or create any confidential or sensitive information of any kind, including protected health information (as defined by the Health Insurance Portability and Accountability Act of 1996, as amended, and its implementing regulations). You acknowledge that ReShape may, in its sole discretion, modify or discontinue your access to the Free Trial, with or without prior notice to you. Once the Free Trial Term has expired, your Account will be automatically converted to a paid subscription for the Solution(s), subject to Section 12 (“Fees”), unless you provide us with seven (7) days written notice of your wish to terminate your Account.
a. Employer Wellness. If we provide you with access to the Services and/or Solution through a ReShape Partner, ReShape User will not be charged for the Services. ReShape Partner agrees to pay, and ReShape Partner hereby authorizes us or our third-party payment processor, to charge ReShape Partner on an annual basis in accordance with our agreement with the ReShape Partner upon execution of the Agreement with us. ReShape Partner agrees that ReShape Partner is fully responsible for any such payment. By providing us with a payment method, ReShape Partner represents and warrants: (i) ReShape Partner has authorized us and our third-party payment processor to charge the selected payment method; (ii) ReShape Partner is duly authorized to use such payment method; and (iii) all provided payment information is true and accurate. Fees are nontransferable and all amounts paid in connection with the Service and/or Solution are nonrefundable if services have been provided.
b. Free Trial. If we provide you with access to the Services and/or Solution through a Free Trial Account, your access and use of the Services and Solution will be free of charge during the Free Trial Term (see Section 10). Once the Free Trial Term has expired, and you have not provided us notice of the termination of your Account in accordance with Section 10, your account will be automatically converted to a paid subscription, subject Section 12(c).
c. Paid Subscription. If we provide you with access to the Services and/or Solution through a paid subscription, you agree to pay, and you hereby authorize our third-party payment processor, to charge you on an automatic reoccurring basis in accordance with Section 13 using your selected payment method for any balance due based on your billing preference (annually or monthly), pro-rated for the first and last month of the Term, as necessary, for the Term, in accordance with the applicable fee schedule www.myreshapecare.com. You agree that you are fully responsible for any such payment. By providing us with a payment method, you represent and warrant: (i) you have authorized us and our third-party payment processor to charge the selected payment method; (ii) you are duly authorized to use such payment method; and (iii) all provided payment information is true and accurate. Fees are nontransferable and all amounts paid in connection with the Service and/or Solution are nonrefundable if services have been provided. If you have selected annual billing, and your Account is terminated before the end of the Term, we will reimburse you for any month in which you will not use the Solution(s) at the monthly price.
d. Taxes. Unless otherwise stated, our Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are solely responsible for taxes assessable against us based on our income, property and employees.
13. Automatic Payments. By consenting to automatic payments of the amount due, you authorize ReShape: (a) to initiate recurring automated clearing house (ACH) debit entries or debit card payments from the checking or savings account you specify, or (b) to initiate recurring charges from your specified credit card for any balance due on the first day of each calendar month and for the Term. Your balance includes, but is not limited to, the amount listed in the fee schedule provided in Section 10 (“Fees”) and any applicable taxes. Once your Account is activated, all payments will be automatically withdrawn from your specified checking or savings account or charged to the designated credit or debit card on the first day of each calendar month.
You agree to be bound by any rules your financial institution requires for pre-authorized electronic funds transfers and/or that your debit or credit card issuer requires for pre-authorized debit or credit card transactions. You are responsible for all fees charged by your financial institution associated with the pre-authorized payment option.
YOU HAVE THE RIGHT TO TERMINATE YOUR AUTHORIZATION AT ANY TIME BY CALLING US AT (855) RESHAPE OR BY EMAILING US AT WELCOME@RESHAPECARE.COM.
You must update all changes to your checking/savings account or credit/debit card information by logging into your Account or contacting ReShape at (855) RESHAPE OR BY EMAILING US AT WELCOME@RESHAPECARE.COM. If you do not update your checking/savings account or credit/debit card information and ReShape is unable to charge your credit card or withdraw funds from your debit card, checking account, or savings account for the amount due, you may be subject to applicable late fees, returned item charges and any fees or charges assessed by your financial institution.
RESHAPE SHALL BEAR NO LIABILITY OR RESPONSIBILITY FOR ANY LOSSES OF ANY KIND THAT YOU MAY INCUR AS A RESULT OF A PAYMENT MADE ON ITEMS INCORRECTLY BILLED OR FOR ANY DELAY IN THE ACTUAL DATE ON WHICH YOUR ACCOUNT IS DEBITED OR YOUR CREDIT CARD IS CHARGED.
ReShape reserves the right to change these terms or terminate this automatic payment program at any time. Notice may be given on or with your invoice or by other methods. These terms do not in any way terminate, amend or modify other terms, agreements or policies that apply to your ReShape Account or any ReShape Services you receive or other agreements you may have with ReShape.
14. Modifications to the Services. ReShape reserves the right to modify, suspend, or discontinue, the Services (in whole or in part) with or without notice to you. You agree ReShape will not be liable to you or to any third-party for any modification, suspension, or discontinuance of the Services or any part thereof.
15. Disclaimers. THE SERVICES AND SERVICES CONTENT (DEFINED BELOW) ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, and for your information only, and ReShape, our parent company, affiliates, licensors, and suppliers EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. RESHAPE MAKES NO WARRANTY OR REPRESENTATION THAT THE SERVICES OR ANY MATERIALS, DOCUMENTS, RECOMMENDATIONS, IMAGES, GRAPHICS, LOGOS, DESIGN, AUDIO, VIDEO, AND ANY OTHER INFORMATION PROVIDED FROM OR ON THE SERVICES (COLLECTIVELY, THE “SERVICES CONTENT”) (i) WILL MEET YOUR REQUIREMENTS; (ii) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (iii) THE SERVICES CONTENT IS FREE FROM TECHNICAL INACCURACIES OR PROGRAMMING OR TYPOGRAPHICAL ERRORS, OR WILL BE COMPATIBLE WITH YOUR INTERNET NETWORK, COMPUTER, OR MOBILE DEVICE; (iv) THE SERVICES CONTENT IS FREE FROM CHANGES CAUSED BY A THIRD PARTY; (v) ANY INFORMATION OBTAINED IN RESPONSE TO QUESTIONS ASKED THROUGH THE SERVICES IS ACCURATE OR COMPLETE; OR (vi) WILL BE ACCURATE, RELIABLE, UP-TO-DATE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. RESHAPE DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE OR PRODUCT ADVERTISED OR OFFERED BY A RESHAPE PARTNER OR THIERD PARTY THROUGH, OR IN CONNECTION WITH, THE SERVICES, OR ANY HYPERLINKED WEBSITE OR SERVICE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES AND YOUR RELIANCE ON ANY SERVICES CONTENT IS AT YOUR SOLE RISK. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES OR SERVICES CONTENT, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
16. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL RESHAPE, our parent company, affiliates, licensors, and suppliers BE LIABLE TO YOU OR TO ANY THIRD-PARTY FOR ANY LOST PROFITS, LOST DATA, OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES OR SERVICES CONTENT, EVEN IF RESHAPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES AND SERVICES CONTENT IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM OR BUSINESS, OR LOSS OF DATA RESULTING THEREFROM. THE LIMITATIONS OF THIS SECTION DO NOT APPLY TO RESHAPE’S WILLFUL MISCONDUCT OR FRAUD.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, RESHAPE’S ENTIRE AGGREGATE LIABILITY TO YOU (AND OUR S our parent company, affiliates, licensors, and suppliers’ LIABILITY TO YOU) FOR ANY DIRECT DAMAGES ARISING FROM OR RELATED TO THESE TERMS, SERVICES CONTENT, AND SERVICES FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION WILL AT ALL TIMES BE LIMITED TO THE TOTAL AMOUNT PAID BY YOU TO US (IF ANY) PURSUANT TO THESE TERMS, THE SERVICES, OR SERVICES CONTENT. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
17. Indemnification. You agree to indemnify and hold harmless ReShape (and its employees, service providers, clients, officers, affiliates, subsidiaries, parent company, and agents) from and against any and all claims, demands, suits, proceedings, liabilities, judgments, losses, damages, expenses, and costs (including reasonable attorneys’ fees) assessed or incurred by us, directly or indirectly, with respect to or arising out of: (i) your use of the Services or Services Content; (ii) your violation of these Terms; (iii) your violation of applicable laws, regulations, or third-party rights; (iv) your User Feedback; or (v) your willful misconduct, fraud, or negligence. ReShape reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of ReShape. ReShape will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
18. Dispute Resolution. PLEASE READ THIS SECTION CAREFULLY, AS IT AFFECTS YOUR RIGHTS.
The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through good-faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. All claims arising out of or relating to these Terms and your use of the Services shall be finally settled by binding arbitration administered by the JAMS Alternative Dispute Resolution (“JAMS”) in accordance with the provisions of its Commercial Arbitration Rules and of its supplementary procedures for consumer-related disputes, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to these Terms, including, but not limited to, any claim that all or any part of these Terms are void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, ReShape will pay the additional cost. The arbitration will be held in the United States county where you live or work, New Castle County, Delaware, or any other location as to which we may then mutually agree. A party seeking arbitration must first send to the other, by certified mail or e-mail, a written notice of dispute.
Any notice to ReShape should be addressed to ReShape Lifesciences, Inc., ATTN: Office of General Counsel, 1001 Calle Amanecer, San Clemente, CA 92673. Any notice to you shall be sent to your legal address or e-mail address that ReShape is able to identify.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court.
The parties further agree that any arbitration shall be conducted in their individual capacities only, and not as a class action or other representative action. If any court or arbitrator determines that the class-action waiver set forth in this section is void or unenforceable for any reason, or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Without first engaging in arbitration or the informal dispute-resolution process described above, either you or ReShape may assert claims, if they qualify, in small claims court in New Castle County, Delaware or any United States county where you live or work; and ReShape may bring a lawsuit against you in any court of competent jurisdiction solely for injunctive relief to stop any unauthorized use or abuse of the Services or intellectual property infringement.
If ReShape makes any changes to the Dispute Resolution section of these Terms (other than a change to the address at which ReShape will receive notices of dispute, opt-out notices or rejections of future changes to the Dispute Resolution section), you may reject any such change by sending us written notice within 30 calendar days of the change to: ReShape Lifesciences, Inc., ATTN: Office of General Counsel, 1001 Calle Amanecer, San Clemente, CA 92673. It is not necessary to send us a rejection of a future change to the Dispute Resolution section of these Terms if you had properly opted out of the arbitration and group litigation waiver provisions in this Section within the first 30 calendar days after you first accepted these Terms. If you have not properly opted out of the arbitration and group litigation waiver provisions in this Section, by rejecting a future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this arbitration provision, as modified by any changes you did not reject.
19. Copyright. If you believe that another user of the Services is unlawfully infringing copyrighted material(s), and wish to have the allegedly infringing material(s) removed, you must provide the following in the form of a notification pursuant to the Digital Millennium Copyright Act (DMCA): (i) identification of the copyrighted work(s) claimed to have been infringed; (ii) identification of the supposedly infringing material that is to be removed; (iii) information reasonably sufficient to permit us to locate the material on the Services; (iv) your address, telephone number, or email address; (v) a statement that you have a good faith belief that use of the material is in fact infringing and/or not authorized by the copyright owner, its agent, or the law; (xi) a statement that, under penalty of perjury, the information in the notification is accurate and where relevant you are authorized to act on behalf of the copyright owner; and (vii) your physical or electronic signature. This notification must be sent to: email@example.com. A provider of content subject to a claim of infringement may make a counter-notification. To file a counter-notification with us, please send notice to our DMCA Copyright Agent at the above contact information with the following information: (i) identification of the supposedly infringing material that is to be removed; (ii) a statement that, under penalty of perjury, you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; (iii) your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your postal address is located, and that you will accept service of process from the party who submitted the infringement notification or his, her, or its principal or agent; and (iv) the signature, physical or electronic, of you or a person authorized to act on your behalf. We will promptly provide the party that provided the notice of claimed infringement with a copy of the counter-notification, and inform the complaining party that we restore the removed or disabled content within ten (10) business days. If we do not receive notice that a lawsuit has been filed within ten (10) business days after we provide notice of the counter-notification, we will restore the removed or disabled materials. Until that time, the materials will remain removed or disabled. Before filing a copyright notification with us, make a careful determination as to whether or not the use of the material at issue is or may be protected by the “fair use” doctrine. You could potentially be held liable for costs and attorneys’ fees should you file a takedown notice where there is no infringing use. If you are unsure whether there is infringement, it may be advisable to seek legal counsel.
20. Errors, Inaccuracies, and Omissions. Occasionally the Services Content may contain typographical errors, inaccuracies or omissions. ReShape reserve the right to correct any errors, inaccuracies or omissions, and to change or update information if any information on the Services is inaccurate at any time without prior notice. ReShape undertakes no obligation to update, amend, or clarify Services Content except as required by law.
21. Governing Law. These Terms and all matters arising out of or relating to the Services and Services Content shall be governed by the laws of the United States and the State of Delaware, without giving effect to the conflict of law provisions thereof. Subject to Section 18, all proceedings that may arise out of or in connection with the Services or Services Content shall be brought solely in the appropriate state or federal courts in New Castle County, Delaware.
22. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
23. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
24. Section Titles. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”.
25. California Disclosure. ReShapre is located at the address set forth above. If you are a resident of the state of California, USA, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210.
26. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
27. Electronic Communications. By using the Services, you consent to receive electronic communications from ReShape unless you follow applicable opt-out procedures. ReShape will communicate with you by email or by posting notices on the Services. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communication be in writing.
28. Local Laws. ReShape makes no representation that the Services are appropriate or available for use in jurisdictions outside the United States. Access to the Services from jurisdictions where such access is illegal is prohibited. If you choose to access the Services from other jurisdictions, you do so at your own initiative and are responsible for compliance with applicable local laws.
29. Export Restrictions. The Services may be subject to United States export control laws and may be subject to export or import regulations in other countries. You agree not to export, re-export, or transfer, directly or indirectly, any United States technical data acquired from the Services, or any products utilizing such data, in violation of the United States export laws or regulations.
30. Changes To These Terms. ReShape may revise these Terms or the Services, or stop providing the Services at any time and without notice to you. ReShape encourages you to review these Terms frequently (the date of the most recent revision to these Terms appears at the end of these Terms). Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms, as amended.
31. Contact. If you have any questions about these Terms, please contact us at (855) RESHAPE or 1001 Calle Amanecer, San Clemente, CA 92673.