Last Updated: 6 June 2023
DO NOT USE THE SERVICES IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY. In an emergency situation, please call 911 (for U.S. residents) or 999 or 111 (for U.K. residents), contact your doctor, go to the nearest emergency room, or contact your local crisis center.
Among other activities, the Services enable coordination and communication with, depending on need, an addiction recovery coach (for U.K. and U.S. residents), a counsellor (for U.S. residents), or a licensed healthcare provider (for U.S. residents). The Services do not replace your relationship with any physician.
THESE TERMS LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES AND, IF YOU ARE A U.S. RESIDENT, CONTAIN A MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS, AND NOT BY A LAWSUIT. If you are a U.S. resident, this means that (i) you are giving up, and you waive, the right to have any such dispute decided in a court of law before a jury or a judge (except as set forth expressly in Section 14), and (ii) you are giving up, and you waive, the ability to pursue any such dispute in a class, consolidated, or representative action or proceeding. For more information, please see Sections 11, 12, 13, and 14 (for U.S. residents) or 15 (for U.K. residents).
Digital Therapeutics, Inc., its subsidiary, Digital Therapeutics Ltd., and its affiliated professional entities Quit Genius Medical, P.A., Quit Genius Medical, P.C., Quit Genius Medical of Kansas, P.A., and Quit Genius Medical of New Jersey, P.C. (the “Affiliated Practices” and together with Digital Therapeutics, Inc. and Digital Therapeutics Ltd., “Quit Genius”, “Pelago”, “we “, “us”, or “our”) own and operate the website located at www.pelagohealth.com and any other site that links to the these Terms (collectively, the “Websites”) and the Quit Genius mobile applications that link to these Terms (“Apps”). We refer to the Websites, Apps, and other services provided by Pelago together herein as the “Services.” In these Terms, the terms “you” and “yours” refer to the person using the Services.
Please note: we are in the process of rebranding from “Quit Genius” to “Pelago”, a process which will complete this Fall 2023. During this transition period you may see or hear references to both brand names, including below. Each is a brand name under which the entities names above do business. The entities are the same entities regardless of which brand name they use.
PLEASE READ THESE TERMS CAREFULLY BECAUSE THEY SET FORTH THE IMPORTANT TERMS YOU WILL NEED TO KNOW ABOUT THE SERVICES.
YOU UNDERSTAND THAT BY CLICKING “I ACCEPT”, “I AGREE”, OR SIMILAR, OR BY ACCESSING OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE LEGALLY BOUND BY AND COMPLY WITH THESE TERMS. IF YOU DO NOT OR CANNOT AGREE WITH ANY PART OF THESE TERMS, YOU MAY NOT USE THE SERVICES.
THE TERMS ARE SUBJECT TO CHANGE AS PROVIDED IN SECTION 4.
1. Important Notices and Disclaimers; Privacy
Your Relationship with Pelago. DIGITAL THERAPEUTICS, INC. AND DIGITAL THERAPEUTICS LTD. ARE NOT A HEALTHCARE PROVIDER AND DO NOT PROVIDE A MEDICAL DEVICE. Neither company provides any medical services, including via the Services. Instead, Digital Therapeutics, Inc. provides a technology platform for you to access a licensed healthcare provider who is employed or contracted with one of the Affiliated Practices (for U.S. residents) or other qualified professional (coaches and counsellors for U.S. residents and coaches for U.K. residents) who is employed or contracted with Digital Therapeutics, Inc. in the U.S. or Digital Therapeutics Ltd. in the U.K., and to obtain access to additional information, which you may or may not choose to utilize in planning your healthcare and wellness. You understand that by coordinating and consulting with the Affiliated Practices or their licensed healthcare providers through the Services, you are not entering into a provider-patient relationship with Digital Therapeutics, Inc. or Digital Therapeutics Ltd.
Without limiting the foregoing, the Services may provide you with access to an addiction recovery coach or counsellor providing cognitive behavioral therapy (“CBT”) who will consult with you via telephone, video conference, chat, email, or other online tools. We reserve the right to change your coach or counsellor at any time. Our coaches and counsellors provide you with peer-to-peer support, encouragement, accountability, and practical tips to help overcome barriers to meeting your addiction recovery goals. ADDICTION RECOVERY COACHES AND COUNSELLORS DO NOT PROVIDE MEDICAL CARE AND ARE NOT ACTING IN A HEALTHCARE PROFESSIONAL CAPACITY. THEY DO NOT PROVIDE ANY MEDICAL ADVICE, CLINICAL SERVICES, AND DO NOT DIAGNOSE, TREAT, OR MANAGE ANY ILLNESS, DISEASE OR CONDITION OR HOLD THEMSELVES OUT AS BEING ABLE TO DO SO.
The decision to focus on diagnosis, treatment recommendations, or both, rests with you and your healthcare provider. Always seek the advice of your physician or other qualified healthcare practitioner regarding your medical condition or the use (or frequency) of any medication or medical device. Questions regarding any drug, device or treatment always should be directed to your healthcare provider. Never disregard professional medical advice or delay in seeking it because of something you have read in connection with our services. We encourage you to consult with your healthcare provider if you have any questions or concerns about your health or condition or experience any changes in your condition or health status.
Except for communications related to your specific health and wellness that you received from licensed healthcare providers who practice through the Affiliated Practices, THE INFORMATION AND OTHER CONTENT AVAILABLE ON OR THROUGH THE SERVICES, INCLUDING INFORMATION PROVIDED BY OUR ADDICTION RECOVERY COACHES AND CBT PROVIDED BY OUR COUNSELLORS, IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT AND IS NOT A RECOMMENDATION OR ENDORSEMENT OF ANY DRUG, DEVICE, OR TREATMENT OR A REPRESENTATION THAT A PARTICULAR DRUG, DEVICE, OR TREATMENT IS SAFE, APPROPRIATE, OR EFFECTIVE FOR YOU. YOU SHOULD ALWAYS CONSULT WITH YOUR HEALTHCARE PROVIDER REGARDING QUESTIONS YOU HAVE ABOUT ANY MEDICAL CONDITION BEFORE MAKING HEALTHCARE DECISIONS.
2. Services Overview, Availability, and Eligibility
Overview of the Services. The Services may include (i) providing individuals with access to a licensed healthcare provider or addiction recovery counsellor (for U.S. residents) or an addiction recovery coach (for U.S. and U.K. residents) who will consult with you via telephone, video conference, chat, email, or other online tools, (ii) providing individuals with information on healthcare and wellness, including personalized CBT education; (iii) providing individuals with access to technology-oriented tools for addressing certain health issues, including provision of connected breath sensors and related supplies, health insights monitoring, data analysis, access to Pelago’s mobile and web-based addiction management systems and technologies, and monitoring and support by Pelago’s addiction recovery coaches and counsellors; (iv) development and gathering of health information with retention of the same for use in the Services and to facilitate addiction recovery coach or licensed healthcare provider appointments and communications; (v) administrative support in connection with scheduling and payment for addiction recovery coaches or licensed healthcare provider services; and (vi) telecommunications support for using the Services as a means of direct access to an addiction recovery coach or counsellor, or a licensed healthcare provider.
Availability. Certain of our Services are currently only available to individuals located in certain states or countries. You will be provided with notice of such limitations on availability of certain Services in your location when using those parts of the Services.
Eligibility. Our Services are intended for use by you only if you are 18 years of age or over. To qualify to use the Services, the following must be true, and by accessing or using the Services, you represent and warrant that they are true:
- You are age 18 or over or, if you are accessing the Services in violation of the Eligibility requirement related to age, you otherwise have the express consent of your parent or legal guardian.
- You are located in a state or country where we operate (depending on the type of Services).
- You agree to be legally bound by and comply with these Terms.
You understand and agree that satisfying the above requirements does not guarantee that you will receive Services. In addition to the above requirements, Pelago reserves the right to change or include new requirements as deemed appropriate in their sole discretion without providing prior notice to you.
To access or use the Services, you must have compatible devices, access to the Internet, and certain necessary software. Fees and charges may apply to your use of mobile services and to the Internet.
3. Registration and Account Creation
Although certain parts of the Services are accessible without creating an account, you may be required to create an account to access and use other parts of the Services. If you create an account, you agree to provide information that is current, accurate, and complete, and to maintain and update any information about yourself that you have provided to Pelago. If you do not maintain such information, or Pelago has reasonable grounds to suspect as much, Pelago has the right to suspend or terminate your account and your use of the Services. You agree to keep your username and password confidential and to exit from your account at the end of each session. You are responsible for all activities that occur under your account and for maintaining the confidentiality of your password. You also agree to immediately notify Pelago of any unauthorized use of your username, password or any other breach of security that you become aware of involving or relating to the Services by emailing Pelago at firstname.lastname@example.org. Pelago may take any and all actions it deems necessary or reasonable to maintain the security of the Services.
You are responsible for changing your password promptly if you think it has been compromised. You may not transfer or share your password with anyone or create more than one account. You may not use anyone else’s account at any time. Pelago explicitly disclaims liability for any and all losses and damages arising from your failure to comply with this section.
Our Apps are intended for use only on mobile phones that run an unmodified manufacturer approved operating system. Using the Apps on a mobile phone with a modified operating system may undermine security features that are intended to protect your protected health information and other information from unauthorized or unintended disclosure. As a result, you may compromise your information if you use the App on a mobile phone that has been modified or on a different device. Use of the App inconsistent with the above is a material breach of these Terms.
4. Changes to the Terms and the Services
The Services are continually under development, and Pelago reserves the right to review or remove any part of these Terms in its sole discretion at any time and without prior notice to you. You should check the Terms from time to time when you use the Services to determine if any changes have been made. Any changes to these Terms are effective upon posting to the Services, unless applicable law requires us to provide additional notice or take other actions before such changes can become effective. If you disagree with these Terms, your sole and exclusive remedy is to discontinue your use of the Services. Your continued use after a change has been posted constitutes your acceptance of the changes.
You acknowledge and agree that: (1) all or any part of the Services may not be accessible at any time, for any period, or for any reason; and (2) Pelago will not be liable if for any reason all or any part of the Services are unavailable at any time or for any period. Pelago reserves the right at any time and for any reason to modify, or temporarily or permanently discontinue, the Services or any portion thereof, with or without notice. You agree that Pelago shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services.
5. Communication Preferences; Electronic Notices and Signatures
Communication Preferences. From time to time, we may contact you (by email, phone call, text message or push notifications) with information about your account and the use of our Services, including calls and texts about appointment reminders, account statements, and other informational messages or requests for feedback. By providing your phone number and opting in to receive calls or text messages, you expressly consent to receive these communications, including those involving a pre-recorded or artificial voice or placed using any automatic telephone dialing system or other automated system for placing calls or sending texts to the phone number that you provide. Consent to receiving text messages is not required to receive products or services from us. Message frequency may vary, and your carrier’s message and data rates may apply. As we are located in the United States, international rates may apply depending on your location.
You acknowledge that text messages and emails may be unencrypted and carry some risk that the information in the messages could be read by an unauthorized person. You further acknowledge and agree that Pelago cannot guarantee the security and confidentiality of the text and email messages that we send to you and we are not responsible for any unauthorized access that occurs during or after the transmission of the text messages to you.
You can opt out of receiving future email or text message communications by following the opt out or unsubscribe instructions in the communication. Opting out of emails, calls, or text messages does not mean that we will not contact you about your account or our Services.
Electronic Notices and Signatures. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing, and you consent and agree that your use of your finger, a keypad, mouse, or other device to select an item, button, icon, or similar act while using the Services, or in accessing or making any transactions regarding any agreement, acknowledgment, consent, terms, disclosures, or conditions, constitutes your signature, acceptance, and agreement as if actually signed by you in writing. You should maintain copies of electronic communications from us by printing a paper copy, saving an electronic copy, or both. Further, you agree that no certification authority or other third-party verification is necessary to establish the validity of your electronic signature, and that the lack of such certification or third-party verification will not affect the enforceability of your signature or any resulting contract between you and us.
6. Ownership and License to Use the Services
Ownership.. As between Pelago and you, Pelago is the sole and exclusive owner of all right, title and interest in and to the Services and their content, features and functionality (including, without limitation, all information, software, text, displays, images, video, audio, design, selection, arrangement and look and feel) (the “Services Content”), and any associated copyrights, patents, or other protected or unprotected intellectual property rights. You are not permitted to reproduce, publish, distribute, modify, reverse engineer, disassemble, create derivative works of, publicly display, publicly perform, republish, download, store, transmit, sell or participate in any sale of, or exploit in any way, in whole or in part, any of the Services or Services Content except as permitted by these Terms or otherwise by Pelago expressly in writing. Any copy, modification, revision, enhancement, adaptation, translation, or derivative work of the Services or Services Content shall be owned solely and exclusively by Pelago or its licensors, including all intellectual property rights therein. You may not access or use for any commercial purposes any part of the Services or Services Content.
Marks. Certain names, logos, and other materials displayed in and through the Services may constitute trademarks, trade names, service marks or logos (“Marks”) of Pelago. You are not authorized to use any such Marks without the express written permission of Pelago. Ownership of all such Marks and the goodwill associated therewith remains with us.
Your License. Subject to your compliance with these Terms, we hereby grant to you a personal, limited, revocable, non-exclusive, and nontransferable right to view, download, access, and use the Services and Services Content solely for your personal and non-commercial use and only as permitted under these Terms. No other right, title, or interest in or to the Services or Services Content is transferred to you, and all rights not expressly granted are reserved by Pelago or its licensors.
7. User Content, Feedback
User Content. The Services may allow you to upload, store and share content, including data, notes, messages, text, and other materials (collectively, “User Content”). Except for the license you grant below, as between you and Pelago, you retain all rights in and to your User Content.
You hereby grant Pelago a worldwide, royalty-free, non-exclusive, transferable, perpetual, and irrevocable license to use, distribute, transmit, reproduce, modify, publish, translate, publicly perform and display and create derivative works of your User Content, except as otherwise prohibited by applicable law. You waive any right to compensation of any type for your User Content. You represent and warrant that you have all the rights necessary to grant the rights in this Section 7 and that use of your User Content by Pelago does not violate any law.
Pelago may, but is not obligated to, review your User Content and may delete or remove your User Content (without notice) from any of the Services in its sole discretion. Removal of any of your User Content from the Services (by you or Pelago) does not impact any rights you granted in your User Content under the terms of a Pelago license.
Feedback. If you provide any Feedback to Pelago in connection with the Services, you hereby grant to Pelago a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use, analyze and exploit such Feedback, in any format or media now known or hereafter developed, and for any purpose. You acknowledge and agree that Feedback is not confidential, and that Pelago is free to use any Feedback for any purpose. “Feedback” means ideas, concepts, feedback, and know-how that you make available to us in connection with the Services.
8. Restrictions on Use
You agree that in using or accessing the Services, you will not, and will not attempt to:
- Impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity.
- Violate any local, state, national or international law (including export laws).
- Reverse engineer, disassemble, decompile, or translate any software or other components of the Services.
- Distribute, input, upload, transmit, or otherwise run or propagate any virus, application, Trojan horse, or any other harmful computer code that could damage or alter a computer, portable device, computer network, communication network, data, or the Services, or any other system, device, or property.
- Access or use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party.
- Use any robot, spider, scraper, or other automated means to access the Services for any purpose without our express prior written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Services.
- License, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services, Service Content, or User Content other than as expressly permitted herein.
- Create or develop competing products or services or for any other purpose that is to Pelago’s detriment or commercial disadvantage.
- Damage, destroy, disrupt, disable, impair, overburden, interfere with, or otherwise impede or harm in any manner the Services, Service Content, or User Content, in whole or in part.
- Use framing techniques to enclose any trademark, logo, or the Services without our express prior written consent.
- Post, transmit or otherwise disseminate any content that, as we determine at our sole discretion: (i) is unlawful, harmful, harassing, fraudulent, threatening, abusive, libelous, defamatory, vulgar, obscene, hateful, violent, demeaning, intimidating, discriminatory, or racially, ethnically or otherwise objectionable, or infringes our or any third party’s intellectual property or other rights, (ii) is derogatory or harmful to our reputation, or the reputation of our licensors, healthcare providers, or any of our or their respective officers, members, employees, representatives, licensors and/or suppliers, in any way; (iii) may incite violence or other unlawful activity; or (iv) is harmful to children in any manner; or (iv) attempts to obtain the personal information of other users.
- Harm, harass, threaten, abuse, defame, demean, discriminate against, or intimidate any affiliated healthcare provider who provides healthcare services related to the Services, as we determine in our sole discretion.
- Disrupt, interfere with, violate the security of, or attempt to gain unauthorized access to the Services or any computer network.
- Bypass, breach, avoid, remove, deactivate, impair, descramble, or otherwise circumvent any security device, protection, or technological measure implemented by Pelago or any of our service providers to protect the Services.
- Remove, delete, alter, or obscure any trademarks, specifications, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services or any Service Content or User Content.
- Use any manual process or automated device to monitor or copy any content made available on or through the Services for any unauthorized purpose except as permitted herein.
- To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation.
- Copy, duplicate, download, store in a retrieval system, publish, transmit or otherwise reproduce, transfer, distribute, store, disseminate, aggregate, use as a component of or as the basis for a database or otherwise use in any form or by any means any data, text, reports, or other materials related to Pelago or third-party content from the Services.
- Otherwise use the Services in any manner that exceeds the scope of use granted herein.
- Encourage or enable any other individual to do any of the foregoing.
We reserve the right to take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services. YOU WAIVE AND HOLD HARMLESS EACH OF THE ENTITIES DEFINED ABOVE AS COMPRISING PELAGO AND THEIR LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
9. Third Party Items, Links and Features on the Services
Third Party Items. Pelago may make third party products available to you in connection with the Services, including provision of connected breath sensors and other supplies related to the Services (“Third Party Items”). Third Party Items are further subject to their own terms and conditions, including any end user license agreement or other terms and conditions accompanying the Third Party Items. If you do not agree to abide by the applicable terms for any such Third- Party Items, then you should not use such Third Party Items. ALL THIRD PARTY ITEMS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY ITEM IS STRICTLY BETWEEN YOU AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY ITEM. IN NO EVENT WILL PELAGO BE LIABLE FOR YOUR USE OF OR FAILURE TO USE ANY THIRD PARTY ITEMS.
Links to Third Party Services. The Services may contain hyperlinks, plug-ins, products, or features operated by third parties (“Third Party Services”). Such Third Party Services are not under our control, and we are not responsible for the information, products or services described by, or for the content or features of, any such Third Party Services. We are providing these Third Party Services to you only as a convenience, and the inclusion of any Third Party Services does not necessarily imply endorsement of the Third Party Services by us or any association with its operators. Your use of these Third Party Services is at your own risk, and we are not liable to you in any way, either directly or indirectly, for any content, errors, damage, or loss caused by or in connection with use of or reliance on information contained in or provided to Third Party Services.
Release. In the event that you have a dispute with one or more other users or third parties through your use of the Services, you release Pelago, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services.
The Terms will remain in full force and effect as long as you continue to access or use the Services. You may terminate the Terms at any time by discontinuing use of the Services. Your permission to use the Services automatically terminates if you violate these Terms.
Pelago may terminate or suspend any of the rights granted by these Terms and your access to and use of the Services with or without prior notice, for any reason, and at any time, including for violations of these Terms. The following provisions, and any other provision which by its nature should survive termination, will survive the expiration or termination of these Terms for any reason whatsoever: User Content, Feedback; Disclaimer of Warranties; Limitation of Liability; Indemnification; Governing Law and Arbitration Agreement for U.S. Residents (for U.S. residents only); Governing Law and Dispute Resolution for U.K. Residents (for U.K. residents only); and Miscellaneous Terms.
Subject to applicable law, Pelago reserves the right to maintain, delete or destroy all communications and materials posted or uploaded to the Services pursuant to its internal record retention and/or content destruction policies. After a termination, Pelago will have no further obligation to provide the Services, except to the extent the Affiliated Practices are required to provide you access to your health records or to provide you with continuing care under applicable legal, ethical, and professional obligations to you.
11. Disclaimer of Warranties
YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EACH OF THE ENTITIES REFERRED TO ABOVE AS COMPRISING PELAGO AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, PARTNERS, MEMBERS, EMPLOYEES, CONTRACTORS, AND AGENTS (COLLECTIVELY “RELATED PERSONS”) MAKE NO REPRESENTATIONS OR WARRANTIES AND EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NONINFRINGEMENT, TITLE, AVAILABILITY, SECURITY, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, FREEDOM FROM VIRUSES OR MALWARE, COMPLETENESS, TIMELINESS, FUNCTIONALITY, RELIABILITY, SEQUENCING OR SPEED OF DELIVERY OR SYSTEM INTEGRATION. WE MAKE NO WARRANTIES OR REPRESENTATIONS THAT YOUR USE OF THE SERVICES WILL NOT INFRINGE THE RIGHTS OF THIRD PARTIES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PELAGO NOR ITS RELATED PERSONS WILL BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE SERVICES. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS, TIMELINESS, RELIABILITY, OR USEFULNESS OF THE SERVICES, SERVICES CONTENT, AND USER CONTENT. FURTHERMORE, PELAGO DOES NOT GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED, OR FREE FROM ERROR, DEFECT, LOSS, DELAY IN OPERATION, CORRUPTION, CYBER ATTACK, VIRUSES, INTERFERENCE, HACKING, MALWARE, OR OTHER SECURITY INTRUSION, AND PELAGO DISCLAIMS ANY LIABILITY RELATING THERETO.
YOU UNDERSTAND AND AGREE THAT ANY CONTENT, MATERIAL AND/OR INFORMATION OBTAINED THROUGH THE USE OF THE SERVICES ARE USED AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR MOBILE PHONE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH CONTENT, MATERIAL AND/OR INFORMATION, OR YOUR RELIANCE ON ANY SUCH CONTENT, MATERIAL, AND/OR INFORMATION.
12. Limitation of Liability
YOU UNDERSTAND THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PELAGO, ITS RELATED PERSONS OR LICENSORS BE LIABLE TO YOU OR TO ANY PARTY FOR ANY CLAIMS, LIABILITIES, LOSSES, COSTS OR DAMAGES UNDER ANY LEGAL OR EQUITABLE THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), CONTRACT, WARRANTY, STATUTE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR OTHER SPECIAL CATEGORY OF DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE OR DATA, SERVICE INTERRUPTION, COMPUTER OR MOBILE PHONE DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS, INCLUDING DEATH, ARISING OUT OF OR IN CONNECTION WITH ANY ACCESS, USE OF (OR INABILITY TO USE) THE SERVICES OR ANY SERVICES CONTENT, OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICES. THIS IS TRUE EVEN IF PELAGO OR RELATED PERSONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
IN NO EVENT SHALL PELAGO OR IT’S RELATED PERSONS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED IN THE AGGREGATE, THE GREATER OF (I) ONE HUNDRED DOLLARS ($100), OR (II) THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for damages such as in this section. Accordingly, some of these limitations may not apply to you in their entirety. If you are a U.K. resident, English law does not permit the exclusion of certain liabilities, including death or personal injury caused by negligence when acting with consumers. If you are a resident of a U.S. state that permits the exclusion of any of these warranties and liabilities, then the applicable limitations in this section specifically do apply to you.
You agree to indemnify, defend, and hold harmless each of the entities defined as comprising Pelago and their directors, officers, employees, contractors, licensors, suppliers, representatives, proprietors, partners, shareholders, principals, agents, predecessors, successors, assigns, accountants, and attorneys harmless from and against any and all third-party suits, actions, claims, proceedings, damages, settlements, judgments, injuries, liabilities, obligations, losses, risks, costs, and expenses (including, without limitation, reasonable attorneys’ fees, litigation expenses, and accounting fees), relating to or arising from, or alleged to arise from: (i) your use of the Services, or your use of the Services Content or other materials or features available on the Services, (ii) your User Content, (iii) your fraud, violation of law, negligence, or willful misconduct, or (iv) your breach of these Terms.
14. Governing Law and Arbitration Agreement for U.S. Residents
IMPORTANT NOTE: PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND PELAGO TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM PELAGO. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND PELAGO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION.
Governing Law. If you are a U.S. resident, these Terms and your use of the Services shall be governed by the laws of the State of Delaware, without giving effect to the principles of conflict of laws. Subject to the requirement to arbitrate set forth in this Section 14, exclusive jurisdiction for all disputes that do not require arbitration will be the state and federal courts located in Delaware, and you consent to the jurisdiction of those courts.
Binding Arbitration Generally. Except as described in the “Exceptions” section below, you and Pelago agree that every dispute arising in connection with these Terms, the Services, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, regulation, ordinance, fraud, misrepresentation, common law, constitutional provision, respondeat superior, agency or any other legal or equitable theory, regardless of whether a claim arises after the termination of these Terms, and regardless of whether a claim arises before or after the effective date of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) file suit in a court of law to address an intellectual property infringement claim; or (c) seek injunctive relief in a court of law in a state or federal court in Delaware.
Arbitrator. This arbitration agreement, and any arbitration between us, is subject to the Federal Arbitration Act and will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting Pelago.
Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Pelago’s address for Notice of Arbitration is: 1632 1st Ave. #20163, New York, NY 10028. A copy of all Notices of Arbitration must also be sent to Pelago via email to email@example.com. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Pelago may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, Pelago will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if Pelago has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and Pelago may seek reimbursement for any fees paid to AAA.
Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your billing address unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. During the arbitration, the amount of any settlement offer made by you or Pelago must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
Arbitration Relief. Except as provided in the “No Class Actions” section below, the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. The arbitrator’s award shall be final and binding on all parties. Judgment on the award may be entered in any court having jurisdiction.
No Class Actions. YOU AND PELAGO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Pelago agree otherwise in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR PELAGO WANTS TO ASSERT A DISPUTE AGAINST THE OTHER THAT IS SUBJECT TO ARBITRATION PURSUANT TO THESE TERMS, THEN YOU OR PELAGO MUST COMMENCE SUCH DISPUTE BY DELIVERY OF A NOTICE OF ARBITRATION WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES — OR IT WILL BE FOREVER BARRED.
15. Governing Law and Dispute Resolution for U.K. Residents
Governing Law. If you are a U.K. resident, these Terms and your use of the Services shall be governed by the laws of the England and Wales, without giving effect to the principles of conflict of laws. Exclusive jurisdiction for all disputes or claims (including non-contractual disputes or claims) arising out of or in connection with these Terms or its subject matter or formation will be the courts of England and Wales, and you consent to the jurisdiction of those courts.
Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR PELAGO WANTS TO ASSERT A DISPUTE AGAINST THE OTHER ARISING OUT OF THESE TERMS, THEN YOU OR PELAGO MUST COMMENCE SUCH DISPUTE BY DELIVERY OF A NOTICE ASSERTING SUCH DISPUTE WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES — OR IT WILL BE FOREVER BARRED.
No Class Actions. YOU AND PELAGO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
16. Notice Regarding Apple
This section only applies to the extent you are using the App on an iOS device. You acknowledge that these Terms are between you and Pelago only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Services or the Content or any other content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Services. If the Services fail to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including: (a) product liability claims; (b) any claim that the Services fail to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Services and/or your possession and use of the Services infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Services. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
17. Notice Regarding Google
The section only applies to the extent you acquire the App from the Google Play Store: (i) you acknowledge that these Terms of Service are between you and Pelago only, and not with Google, Inc. (“Google”); (ii) your use of the App must comply with Google’s then-current Google Play Terms of Service; (iii) Google is only a provider of Google Play where you obtained the App; (iv) Pelago, and not Google, is solely responsible for the App; (v) Google has no obligation or liability to you with respect to the App or these Terms; and (vi) you acknowledge and agree that Google is a third-party beneficiary to these Terms as it relates to the App.
18. Miscellaneous Terms
No waiver. No waiver by Pelago of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure by Pelago to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
No agency relationship. Neither these Terms, nor any Services Content, materials or features of the Services create any partnership, joint venture, employment, or other agency relationship between us and you. You may not enter into any contract on our behalf or bind us in any way.
Remedies. You agree that any violation, or threatened violation, by you of these Terms constitutes an unlawful and unfair business practice that will cause us irreparable and unquantifiable harm. You also agree that monetary damages would be inadequate for such harm and consent to our obtaining any injunctive or equitable relief that we deem necessary or appropriate. These remedies are in addition to any other remedies we may have at law or in equity.
Force Majeure. Pelago shall be excused from performance under these Terms if we fail or are prevented, forbidden or delayed from performing by reason of: (a) any provision of any present or future law or regulation or order of any court or any other national, state, county, or other local government body; (b) any act or omission of a third party, beyond our reasonable control; or (c) any other circumstance beyond our reasonable control, including inclement weather, strikes, acts of terrorism or war, any emergency condition, persistent computer or telecommunications failures or any acts of God.
Assignment. You may not assign any of your rights under these Terms, and any such attempt will be null and void. Pelago may transfer, without further consent or notification, all contractual rights and obligations pursuant to these Terms if some or all of the business of Pelago is transferred to another entity by way of merger, sale of its assets, or otherwise.
Notice for California Users. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210. In addition, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” This release includes the criminal acts of others.
Headings. The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof.
Severability. All parts of these Terms apply to the maximum extent permitted by law. Pelago and you both agree that if we cannot enforce a part of this contract as written, then that part will be replaced with terms that most closely match the intent of the part we cannot enforce, to the extent permitted by law. The invalidity of part of these Terms will not affect the validity and enforceability of the remaining provisions. The section headings are for convenience only and do not have any force or effect.
Entire Agreement. This is the entire agreement between you and Pelago relating to the subject matter herein and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter, excluding any other agreements that you may have entered into with Pelago.
19. Contact Us
Pelago is headquartered in New York, New York in the United States of America.
If you have any questions about these Terms, please contact us at:
1632 1st Ave. #20163
New York, NY 10028