BetterUp Terms of Service
Last Updated: April 20, 2015
These Terms of Service (these “Terms”) apply to the services (the “Services”) provided by BetterUp, Inc. (“BetterUp,” “our,” or “we”) via http://www.betterup.co/ (the “Site”).
BY REGISTERING TO USE OR ACCESS THE SERVICES AND CHECKING THE BOX TO AGREE TO THESE TERMS OF SERVICE OR OTHERWISE USING OR ACCESSING THE SITE AND/OR SERVICES, YOU ACKNOWLEDGE AND AGREE THAT: (A) YOU HAVE READ THESE TERMS; (B) YOU UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THESE TERMS; AND (C) YOU AGREE TO BE LEGALLY BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS.
BetterUp reserves the right to change or modify any of the terms and conditions contained in these Terms (or any policy or guideline of BetterUp) at any time and in its sole discretion. If BetterUp makes changes to these Terms, we will provide notice of such changes, such as by sending you a notification, by providing notice through the Services, and/or by updating the “Last Updated” date at the top of these Terms and posting the revised Terms to our Services. Your continued use of any of the Services will constitute your acceptance of such changes or modifications. Therefore, you should review these Terms whenever you access the Services to make sure that you understand the terms and conditions that will apply to your use of the Services.
For purposes of these Terms, “BetterUp” refers to BetterUp and BetterUp’s investors, directors, officers, employees, agents, representatives, and assigns.
You represent and warrant that you (a) are at least 18 years of age, and (b) have not been previously suspended or removed from using the Services.
To access certain areas and features within the Services, you must create an account. You agree to (a) provide accurate, truthful, current and complete information when creating an account; (b) maintain and promptly update your account information; (c) maintain the security of your account by not sharing your password with others and restricting access to your account and your computer; (d) promptly notify BetterUp if you discover or otherwise suspect any security breaches related to the Site; and (e) take responsibility for all activities that occur under your account and accept all risks of unauthorized access.
Access to Services. On the condition that you comply with these Terms, BetterUp hereby grants you a non-exclusive, non-transferable, revocable license to access the Services (including any BetterUp Material therein) solely for the purpose of enabling you to use the Services in the manner permitted by these Terms. If BetterUp, in its sole discretion, elects to provide any upgrade that replaces or supplements the original Services, this license will govern any such upgrade unless such upgrade is accompanied by a separate license, in which case the terms of that license will govern.
Modification of the Services. BetterUp may review, improve, change, or discontinue (temporarily or permanently) the Services or any features, information, materials, or content on the Services at any time, with or without notice to you. If you no longer wish to use the Services following any such modifications, you may terminate these Terms.
Third Party Services. The Services require the use of certain third party products and services (“Third Party Services”) identified on the Site. Use of any Third Party Services is at your sole risk and will be governed by separate terms and conditions, separate privacy policies relating to usage of data you may share through the Thrid Party Services in the course of using the Services, other applicable policies, and may include separate fees and charges. BetterUp may display content from third parties through the Services or may provide information about or links to Third Party Services. Your interactions with any such third parties, and any terms, conditions, warranties, or representations associated with such interactions, are solely between you and the applicable third parties. BetterUp is not responsible or liable for any loss or damage of any sort incurred as the result of any such interactions or as the result of the presence of such third-party information made available through the Services. If you are not able to access or use the Third Party Services for any reason, you will not be able to use the Services, and your sole remedy will be to terminate these Terms.
5. FEES AND PAYMENT TERMS
BetterUp provides a weekly subscription for access to its Services (each month period, a “Subscription Period”) at the prices set forth on the Services, paid in advance of the beginning of each applicable Subscription Period. If the applicable fees are not paid prior to the beginning of the Subscription Period, your access to the Services will be terminated until you pay the applicable fees. BetterUp, at its sole discretion, may modify its pricing during any Subscription Period and such pricing changes will be effective as of the directly subsequent Subscription Period. All payments must be made: (a) in U.S. Dollars and (b) by credit/debit card via an authorized BetterUp payment processor. You hereby: (i) authorize BetterUp (or its authorized payment processor) to charge the credit/debit card number provided to BetterUp; and (ii) represent and warrant that you are authorized to use and have fees charged to the credit/debit card number provided to BetterUp. You may withdraw such authorization by utilizing the cancellation mechanism provided via the Services, or, if no mechanism is available via the Services, emailing us at email@example.com.
6. RESTRICTIONS ON USE OF SERVICE
You are solely responsible for your conduct (and the conduct of anyone who uses the Services on your behalf) with respect to the Services, which you use at your own risk. Except as expressly permitted in writing by BetterUp, you will not do, and will not permit any third party to do, any of the following:
- rent, lease, lend, sell, sublicense, or create derivative works of the Services;
- distribute the Services or make the Services available over a network where it could be used by multiple devices at the same time;
- modify, disclose, decompile, reverse engineer, disassemble, attempt to derive the source code, underlying ideas, or algorithms of the Services or any part of the Services, except to the extent required by applicable law;
- remove, alter, or obscure any copyright, trademark, or other proprietary rights notice or labels on or in the Services;
- use the Services in any manner that could interfere with, disrupt, negatively affect, or inhibit BetterUp’s other users from fully enjoying the Services or that could damage, disable, overburden, or impair the functioning of the Services;
- use the Services for any illegal or unauthorized purpose or engage in, encourage, or promote any illegal activity, or any activity that violates these Terms;
- attempt to gain unauthorized access to the Services or their related systems or networks;
- use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of the rights of BetterUp or any third party;
- impersonate or use the Services by misrepresenting your affiliation with a person or entity;
- build a competitive product or service, or copy any features or functions of the Services;
- disclose to any third party any performance information or analysis relating to the Services; or
- cause or permit any third party to do any of the foregoing.
If you violate (or are alleged to have violated) any of the foregoing restrictions, your license to use of the Services will immediately and automatically terminate, and you may have infringed the rights of BetterUp, which may subject you to prosecution and damages.
7. ACCEPTABLE USE POLICY
In using the Services, including in any video chat or one-on-one interaction with other users or our personal skills trainers or professional trainers (“Trainers”), regardless of whether you believe you have been prompted by the Services, Trainers, or other users to do any of the following, you may not upload, use, create, transmit, store, display, distribute, share or otherwise make available any content, descriptions, or information that:
- is illegal or fraudulent or that would encourage, solicit, foster, glorify or provide instructions for any criminal or civil offense;
- may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, to any animal or to any property;
- is obscene, pornographic, indecent or sexually explicit;
- depicts graphic, excessive or gratuitous violence, or make any threats to commit violent acts;
- is derogatory, demeaning, inflammatory, malicious, defamatory, abusive, offensive, hateful, harassing, humiliating to other people (publicly or otherwise), libelous or otherwise objectionable;
- you do not have a right to make available under any law or under contractual or fiduciary relationships;
- you know is untruthful; or
- infringes, misappropriates or violates the intellectual property or proprietary rights of others (including, but not limited to, rights of privacy and rights of publicity).
BetterUp reserves the right, but is not obligated, to investigate any violation of this Section 7 or misuse of the Services or the Site. Enforcement of this Section 7 is solely at BetterUp’s discretion, and failure to enforce this Policy in some instances does not constitute a waiver of BetterUp’s right to enforce this Section 7 in other instances. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Services or the Site will be free from conduct or content that violates this Section 7. BetterUp may, in its sole discretion, remove or disable access to any content for any reason or for no reason, including if BetterUp believes that such content violates these Terms or any other agreement we have with you for use of the Services or the Site.
8. OWNERSHIP AND RESERVATION OF RIGHTS
BetterUp reserves all rights not expressly granted in these Terms. Except for the license expressly stated in these Terms, you are not granted any rights in or to the Services by implication, estoppel, or other legal theory, and all rights in and to the Services not expressly granted in these Terms are hereby reserved and retained by BetterUp. BetterUp reserves all right, title, and interest to and in all information, materials, and content (including text, graphics, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces, source and object code, format, queries, algorithms, and other content) (collectively “BetterUp Material”). BetterUp Material includes any information, videos, or images delivered by BetterUp via a Third Party Service in the course of providing the Services. BetterUp Material is confidential, and you may not disclose BetterUpMaterial that you have received in the course of the Services or otherwise. BetterUp Material is protected in all forms, media, and technologies now known or later developed.
BetterUp’s name, BetterUp’s trademarks, BetterUp’s logos, and any other BetterUp product, service name, or slogan included in the Services are property of BetterUp and may not be copied, imitated, or used (in whole or in part) without BetterUp’s prior written consent. The look and feel of the Services, including all custom graphics, button icons, and scripts constitute service marks, trademarks, or trade dress of BetterUp and may not be copied, imitated, or used (in whole or in part) without BetterUp’s prior written consent. All other trademarks, registered trademarks, product names, and company names or logos mentioned in the Services (“Third Party Trademarks”) are the property of their respective owners, and the use of such Third Party Trademarks inures to the benefit of each owner. The use of such Third Party Trademarks is intended to denote interoperability and does not constitute an affiliation by BetterUp and its licensors with such company or an endorsement or approval by such company of BetterUp or its licensors or their respective products or services.
BetterUp will own exclusive rights, including all intellectual property rights, to any feedback, suggestions, ideas, or other information or materials that you provide regarding BetterUp or the Services, whether by email, posting through the Services, or otherwise (“Feedback”). Any Feedback you submit is non-confidential and will become the sole property of BetterUp. BetterUp will be entitled to the unrestricted use and dissemination of such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You waive any rights you may have to the Feedback (including any copyrights or moral rights). Do not send Feedback to BetterUp if you expect to be paid or want to continue to own or claim rights in your Feedback. BetterUp also has the right to disclose your identity to any third party who is claiming that any content posted by you constitutes a violation of their intellectual property rights, or of their right to privacy. Further, you agree not to submit any Feedback that is defamatory, illegal, offensive, or otherwise violates any right of any third party, or breaches any agreement between you and any third party.
You are granted a limited, non-exclusive right to create a text hyperlink to the services, provided such link does not portray us or the Services in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use any company marks or other proprietary graphic of company to link to the services without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any company trademark, logo or other proprietary information, including the BetterUp Materials, the content of any text or the layout/design of any page or form on the services without our express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright or other proprietary right of BetterUp or any third party.
12. SUSPENSION AND TERMINATION
BetterUp may suspend your license to access or use the Services or terminate these Terms at at any time, with or without cause, immediately upon notice to you. You may terminate these Terms by cancelling your account through the Services. BetterUp reserves the right, but does not undertake any duty, to take appropriate legal action including the pursuit of civil, criminal, or injunctive redress against you for continuing to use the Services during suspension or after termination, including by creation of a different account. BetterUp may recover its reasonable attorneys’ fees and court costs from you for such actions. These Terms will remain enforceable against you while your license to access or use the Services is suspended.
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BETTERUP DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THESE TERMS, THE SERVICES, THE BETTERUP MATERIAL, AND THIRD PARTY TRADEMARKS, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PURPOSE, NON-INFRINGEMENT AND CONDITION OF TITLE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BETTERUP DOES NOT WARRANT, AND DISCLAIMS ALL LIABILITY FOR (A) THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, SECURITY OR RELIABILITY OF THE SERVICE OR ANY BETTERUP MATERIAL; (B) ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICE OR ANY BETTERUP MATERIAL; (C) THE DELETION OF, OR THE FAILURE TO STORE OR TO TRANSMIT, ANY COMMUNICATIONS MAINTAINED BY THE SERVICE; (D) WHETHER THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS; AND (E) THE CONTENT AND NATURE OF ANY INFORMATION OR ADVICE YOU RECEIVE FROM TRAINERS VIA THE SERVICES. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR YOUR USE OF ANY INFORMATION OR ADVICE RECEIVED IN THE COURSE OF USING THE SERVICES FROM BETTERUP AND/OR ITS TRAINERS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BETTERUP OR THROUGH THE SERVICE, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THESE TERMS.
14. NO MEDICAL ADVICE
THE CONTENT AND/OR INFORMATION PROVIDED VIA THE SERVICES AND OUR TRAINERS DO NOT CONTAIN OR CONSTITUTE AND SHOULD NOT BE INTERPRETED AS THERAPY OR AS MEDICAL ADVICE, MEDICAL OPINIONS OR MEDICAL SERVICES, AND THERE IS NO DOCTOR-PATIENT RELATIONSHIP OR THERAPIST-PATIENT RELATIONSHIP BETWEEN BETTERUP AND YOU OR OUR TRAINERS AND YOU. NEITHER BETTERUP NOR OUR TRAINERS PROVIDE MEDICAL SERVICES OR RENDER MEDICAL ADVICE TO YOU. THE SERVICES ARE NOT A SUBSTITUTE FOR THE ADVICE OF A MEDICAL PROFESSIONAL OR THERAPIST, AND THE INFORMATION MADE AVAILABLE ON OR THROUGH THE SERVICES OR FROM OUR TRAINERS SHOULD NOT BE RELIED UPON WHEN MAKING MEDICAL DECISIONS, OR TO DIAGNOSE OR TREAT A MEDICAL OR HEALTH CONDITION. BETTERUP AND ITS TRAINERS DO NOT DIAGNOSE OR IDENTIFY ILLNESSES OR CONDITIONS, AND NO STATEMENT FROM BETTERUP OR ITS TRAINERS SHOULD BE CONSTRUED AS A DIAGNOSIS OR AS CONFIRMATION THAT YOU DO NOT HAVE ANY PARTICULAR MEDICAL CONDITION. IF YOU REQUIRE MEDICAL ADVICE, MEDICAL SERVICES, OR THERAPY, YOU SHOULD CONSULT A MEDICAL PROFESSIONAL DIRECTLY AND NOT THROUGH BETTERUP.
At your sole expense, you will defend, indemnify and hold BetterUp and its Trainers harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) caused by, arising out of or resulting from (a) your use of the Services or the use of the Services by a third party accessing your account, including any infringement of rights of third parties, or (b) your breach of these Terms.
16. LIMITATION OF LIABILITY
IN NO EVENT WILL BETTERUP OR ITS TRAINERS BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER, ARISING OUT OF OR RELATED TO THESE TERMS OR THE BETTERUP IP, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED, OR EMOTIONAL DISTRESS), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY), EVEN IF BETTERUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the limitations of this section may not apply to you.
FURTHER, IN NO EVENT WILL BETTERUP OR ITS TRAINERS’ TOTAL LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE GREATER OF US$100 OR THE AMOUNT YOU PAID TO BETTERUP DURING THE SUBSCRIPTION PERIOD WITHIN WHICH THE DAMAGES AROSE.
PLEASE READ THE FOLLOWING PROVISIONS CAREFULLY BECAUSE THEY REQUIRE YOU AND BETTERUP TO ARBITRATE DISPUTES AND LIMITS THE MANNER IN WHICH BOTH PARTIES CAN SEEK RELIEF.
You and BetterUp will arbitrate any dispute, claim, or controversy arising from or related to these Terms or the Services, except that you nor BetterUp is required to arbitrate any dispute in which either party seeks equitable and/or other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade names, or patents. ARBITRATION PREVENTS YOU AND BETTERUP FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. Arbitration will be conducted confidentially in San Francisco, California, by a single arbitrator in accordance with the rules of JAMS (or its successor). Except as expressly provided in these Terms, the arbitrator has the authority to grant any remedy that would otherwise be available in court. The arbitrator will render a written opinion including findings of fact and law, and the award and determination of the arbitrator will bind the parties and will not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The parties will equally share the expenses of the arbitration unless the arbitrator determines to apportion fees and expenses differently. To the fullest extent permitted by applicable law, WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, NO ARBITRATION OR CLAIM UNDER THESE TERMS WILL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NEITHER YOU NOR BETTERUP WILL COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION, OR OTHER REPRESENTATIVE ACTION OR PROCEEDING.
Governing Law and Dispute Resolution. These Terms will be governed by and construed in accordance with the laws of the State of California, without resort to its conflict of law provisions. The state and federal courts located in San Francisco County, California, will have exclusive jurisdiction over any suit in connection with the Services or these Terms that is not subject to arbitration, and you and BetterUp hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts. These Terms and your access to or use of the Services will be governed by, construed in accordance with, and enforced under the laws of the State of California without resort to its conflict of law provisions. If a party initiates any proceeding regarding these Terms, the prevailing party to such proceeding is entitled to reasonable attorneys’ fees and costs for claims arising out of these Terms.
Assignment. You may not assign, delegate or transfer these Terms or any right, title, interest or obligation hereunder without the prior written consent of BetterUp. Any attempted or purported assignment, delegation or transfer in violation of the foregoing will be null and void and without effect. BetterUp may assign these Terms without your prior written consent. These Terms will be binding and inure to the benefit of such assignees, transferees and other successors in interest of the parties in the event of an assignment or other transfer made consistent with the provisions of these Terms.
Third Party Beneficiaries. All current and former Trainers are third party beneficiaries of Sections 12-17 hereunder.
Electronic Communications. You agree to receive electronically all current and future notices, disclosures, communications and information and that the aforementioned electronic communications satisfy any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received on the day of receipt as evidenced by such email.
Force Majeure. BetterUp will not be liable for any loss or damage arising from any event beyond its reasonable control, including, but not limited to, flood, extraordinary weather conditions, earthquake, or other act of God, fire, war, insurrection, riot, labor dispute, accident, action of government, communications, power failure, or equipment or software malfunction.
Headings. Headings of sections are for convenience only and will not be used to limit or construe such sections.
Severability. If any provision of these Terms is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other provisions of these Terms will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by these Terms is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal or incapable of being enforced, the parties will negotiate in good faith to modify these Terms so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
Survival. Notwithstanding any terms to the contrary in these Terms, Sections 7-9 and 11-15 will survive any termination of these Terms.