These Terms of Service (“Terms”) apply to your access to and use of (i) the websites located at Movanohealth.com and EvieRing.com and all successor links and associated web pages, websites, and social media pages (the “Sites”) provided by Movano Inc. doing business as Movano Health (“Movano”, “we”, “our” or “us”), (ii) Movano’s mobile applications that may be downloaded to your smartphone or tablet (each an “App”), (iii) online services (including the Site and the App, together the “Services”) and (iv) products used in conjunction with and accessible via the Site and the App (the “Products”).
EXCEPT FOR (I) CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 14, (II) WHERE YOU EXERCISE YOUR RIGHT TO OPT OUT OF ARBITRATION AS DESCRIBED IN SECTION 14, OR (III) TO THE EXTENT PROHIBITED BY LAW, DISPUTES BETWEEN YOU AND MOVANO WILL BE RESOLVED SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR BY JURY TRIAL. If you do not agree to these Terms, do not use our Products or Services.
We may indicate that different or additional terms, conditions, guidelines, policies, or rules apply in relation to some of our Products or Services (“Supplemental Terms”). Any Supplemental Terms become part of your agreement with us if you use the applicable Products or Services, and if there is a conflict between these Terms and the Supplemental Terms, the Supplemental Terms will control for that conflict.
We may make changes to these Terms. The “Last Updated” date above indicates when these Terms were last changed. If we make future changes, we may provide you with notice of such changes, such as by sending an email, providing a notice through our Services, or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately upon the posting of the updated version of these Terms on the Service or our Website, and your continued use of our Products or Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must immediately stop using our Products and Services.
Our Products and Services are intended only to be accessed and used for non-critical, non-commercial, home-based, personal uses by individuals who create an account with Movano in accordance with Section 2 of these Terms. Our Products and Services are not intended to, and do not, provide health or medical advice, diagnosis, or treatment. Without limiting the foregoing, the menstrual tracking feature is not intended for use as contraceptive, medical diagnosis, medical treatment, or for any other medical purpose. You should never disregard professional medical advice or discontinue or delay seeking medical advice.
Healthcare related content and information that we may make available through the Services (if any), such as articles, videos, and information and warnings about exercises, activities, medications, conditions, indications, and treatments (collectively “Healthcare-Related Content”), are merely intended as general information that may be useful for users interested in such information. Such Healthcare-Related Content may not be customized for you and may not be accurate or appropriate for you and your condition and medical history. Therefore, rather than relying on Healthcare-Related Content, you should always seek the advice of a qualified healthcare professional or other qualified health provider with any questions regarding any of your medical conditions or treatment or the use (or frequency) of any medication or medical device. Movano is not recommending or endorsing any specific treatment, physician, healthcare provider, or medication. You should not take any actions in contravention of the instructions of your qualified healthcare professional or provider (e.g., initiate or stop any treatment or medications), without first consulting your qualified healthcare professional or provider.
You should not rely on the Products or Services during a medical emergency or for any life-threatening condition, critical reminders, or any other situation where timely administration of medications or other treatment is critical. If you think you have a medical emergency, call 911 or go to the nearest open emergency room immediately.
Movano is not responsible or liable for any advice, course of treatment, diagnosis or any other information, services or products that participants may obtain or follow in connection with or as a result of using the Services or Products or from any healthcare professional or provider.
2 Eligibility and Use Restrictions
- Age. Users under 18 years of age (or the age of legal majority where you live) may not use our Products or Services. If you are a parent or guardian and you believe that your child under the age of 18 is using our Products or Services without your consent, please contact us at our Support Page.
- Jurisdiction. You may only use our Products or Services in jurisdictions authorized by Movano. Use of our Products or Services is currently authorized only in the United States (the “Territory”).
- Use and Sharing. You may only use our Products and Services for personal, family or household purposes and expressly excluding any commercial use.
3 Your Information
You must create an account with Movano to use some or all of our Products and Services. You may not share or permit others to use your individual account credentials, including immediate family members or representatives, or attempt to use the accounts of any other person. You will promptly update any information contained in your account if it changes. You must use a strong password for your account that is unique to our Services and not used by you in any other website or online service. You must maintain the confidentiality and security of your account, as applicable, and ensure that you properly exit from your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. We reserve the right to reject, require that you change, or reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames. You are fully responsible for all activities that occur under your password or account, whether authorized or unauthorized.
- You will not use our Products or Services if you are not eligible to use our Products or Services in accordance with Section 2 and will not use our Products or Services other than for their intended purpose. Further, you will not, in connection with our Products or Services:
- Violate any applicable law, contract, intellectual property right, or other third-party right or commit a tort;
- Engage in any harassing, indecent, obscene, fraudulent, threatening, intimidating, predatory, stalking, or unlawful conduct;
- Use or attempt to use another user’s account or information without authorization from that user and Movano;
- Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity;
- Market, sell or resell our Products or Services to any third party or otherwise commercially use the Service;
- Copy, reproduce, distribute, publicly perform, or publicly display all or portions of our Products or Services, except as expressly permitted by us or our licensors;
- Modify our Products or Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
- Use our Products or Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying our Products or Services or that could damage, disable, overburden, or impair the functioning of our Products or Services in any manner;
- Reverse engineer any aspect of our Products or Services or do anything that might discover source code, or bypass or circumvent measures employed to prevent or limit access to any part of our Products or Services;
- Use any data mining, robots, or similar data gathering or extraction methods designed to scrape or extract data from our Products or Services except in accordance with instructions contained in our robot.txt file and only to compile for search results, provided that Movano grants to the operators of public search engines permission to use spiders to copy materials from the Sites for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Movano reserves the right to revoke such permission either generally or in specific cases, at any time and without notice;
- Develop or use any applications that interact with our Products or Services without our prior written consent;
- Send, distribute, or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes or other content, including any of the foregoing that that violates these Terms or are otherwise unlawful or offensive;
- Link to any online portion of the Products or Services in a manner that damages or exploits, in our sole discretion, our reputation or suggests any form or association, approval, or endorsement by the Movano; or
- Use our Products or Services for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates these Terms.
- Enforcement of this Section 5 is solely at Movano’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances.
6 Ownership; Limited License
The Services, including the text, graphics, images, photographs, videos, illustrations, and other content contained therein, and Products, and all intellectual property rights therein and thereto, are owned by Movano or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services and Products, including all intellectual property rights therein and thereto, are reserved by us or our licensors. Subject to your compliance with these Terms (including Sections 5), you are hereby granted a personal, limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your own private use as an individual consumer, and not for any commercial purpose or benefit of any third party unless otherwise expressly permitted herein and solely with respect to any applications included in the Services, to install and use such application on a mobile or personal device that you own or control. Any use of the Products or Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein and violate our intellectual property rights. Any applications included in the Services are licensed (not sold), and if you fail to comply with any of the terms or conditions of these Terms, you must immediately cease using the applicable application and remove (that is, uninstall and delete) the applicable application from your mobile or personal device.
MOVANO and our logos, product or service names, slogans, and the look and feel of the Services are trademarks of Movano and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names, and company names or logos mentioned on or in connection with the Products or Services are the property of their respective owners. Reference to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by us.
You may voluntarily post, submit, or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials, or other information about Movano or our Products or Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback, or Products or Services, or to improve or develop new products, services, or the Products or Services in Movano’s sole discretion. Movano will exclusively own all improvements to, or new, Movano products, services, or Products or Services based on any Feedback. You understand that Movano may treat Feedback as nonconfidential.
- Our Products and Services rely on or interoperate with third-party products and services, including, without limitation, data storage services, communications technologies, IoT platforms, third-party app stores, and internet and mobile operators (collectively, “Third-Party Materials”). These Third-Party Materials are beyond our control, but their operation may impact, or be impacted by, the use and reliability of our Services and Products. You acknowledge that (i) the use and availability of the Products and Services is dependent on third-party product vendors and service providers and (ii) these Third-Party Materials may not operate reliably 100% of the time, which may impact the way that our Products or Services operate.
- We may further provide information about or links to third-party products, services, activities, or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party.
- We have no obligation to monitor Third-Party Materials or Third-Party Content, and we may block or disable access to any Third-Party Materials or Third-Party Content (in whole or part) through our Products or Services at any time. Your access to and use of such Third-Party Content or Third-Party Materials may be subject to additional terms, conditions, and policies applicable to such Third-Party Content (including terms of service or privacy policies of the providers of such Third-Party Materials). You are responsible for obtaining and maintaining any computer hardware, equipment, network services and connectivity, telecommunications services, and other products and services necessary to access and use the Products and Services.
To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Movano and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners, and employees (individually and collectively, the “Movano Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Products or Services; (b) your Feedback; (c) your violation of these Terms; (d) your violation, misappropriation, or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services. You will promptly notify Movano Parties of any third-party Claims, cooperate with Movano Parties in defending such Claims, and pay all fees, costs, and expenses associated with defending such Claims (including attorneys' fees). The Movano Parties will have control of the defense or settlement, at Movano's sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Movano or the other Movano Parties.
Your use of our Products and Services and any content or materials provided therein or therewith (including the Third-Party Content and Third-Party Materials) is at your sole risk. Except as otherwise provided in a writing by us and to the fullest extent permitted under applicable law, our Products, Services, and any content or materials provided therein or therewith (including the Third-Party Content and Third-Party Materials) are provided “as is” and “as available” without warranties of any kind, either express or implied. Movano disclaims all warranties with respect to the foregoing, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Movano does not represent or warrant that our Products or Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) are accurate, complete, reliable, current, or error-free or that access to our Products or Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) will be uninterrupted. While Movano attempts to make your use of our Products and Services and any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) safe, we cannot and do not represent or warrant that our Products or Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) or our servers are free of viruses or other harmful components or content or materials. You assume the entire risk as to the quality and performance of the Products and Services and any content provided therein or therewith (including the Third-Party Content and Third-Party Materials). All disclaimers of any kind (including in this section and elsewhere in these Terms) are made for the benefit of Movano, Movano Parties, and Movano’s respective shareholders, agents, representatives, licensors, suppliers, and service providers, as well as their respective successors and assigns.
12 Limitation of Liability
- To the fullest extent permitted by applicable law, Movano and the other Movano Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive, or special damages or lost profits, even if Movano or the other Movano Parties have been advised of the possibility of such damages.
- The total liability of Movano and the other Movano Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the greater of $100 or the amount paid by you to use our Product or Services giving rise to the claim.
- The limitations set forth in this Section 12 will not limit or exclude liability for the gross negligence, fraud, or intentional misconduct of Movano or the other Movano Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
To the fullest extent permitted by applicable law, you release Movano and the other Movano Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “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.”
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND MOVANO TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND MOVANO FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND MOVANO AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. MOVANO AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.
THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION ARE INTENDED TO REDUCE THE FINANCIAL BURDENS ASSOCIATED WITH RESOLVING THEIR DISPUTES AND ARE NOT INTENDED TO DELAY ADJUDICATION OF ANY PARTY'S CLAIMS.
FOLLOW THE INSTRUCTIONS BELOW, IN SECTION 14(L), IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT.
- Claims This Section Applies To. The dispute resolution and binding arbitration terms in this Section 14 apply to all Claims between you and Movano. A “Claim” is any dispute, claim, or controversy (excluding those exceptions listed below) between you and Movano, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, that either party wishes to seek legal recourse for and that arises from or relates to these Terms, or our Products or Services, including any privacy or data security claims or claims related to the validity, enforceability, or scope of the arbitration requirement or any portion of it.
- Informal Dispute Resolution Prior to Arbitration. If you have a Claim against Movano or if Movano has a Claim against you, you and Movano will first attempt to resolve the Claim informally in order to try and resolve the Claim faster and reduce costs for both parties. You and Movano will make a good-faith effort to negotiate the resolution of any Claim for 30 days, or such longer period as mutually agreed in writing (email suffices) by the parties, (“Informal Resolution Period”) from the day either party receives a written notice of a dispute from the other party (a “Claimant Notice”) in accordance with these Terms.
You will send any Claimant Notice to Movano by certified mail addressed to Movano Inc. at 6800 Koll Ctr. Pkwy, Suite 160, Pleasanton, CA or by email to our Support Page. Movano will send any Claimant Notice to you by certified mail or email using the contact information you have provided to Movano. The Claimant Notice sent by either party must (i) include the sender’s name, address, email address, and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought.
The Informal Resolution Period is designed to allow the party who has received a Claimant Notice to make a fair, fact-based offer of settlement if it chooses to do so. You or Movano cannot proceed to arbitration before the end of the Informal Resolution Period. If you or Movano file a Claim in court or proceed to arbitration without complying with the requirements in Section 14, including waiting until the conclusion of the Informal Resolution Period, the other party reserves the right to seek relief from a court to enjoin the filing and seek damages from the party that has not followed the requirements in this Section to reimburse it for any arbitration fees and costs already incurred as a foreseeable consequence of that breach.
The statute of limitations and any filing fee deadlines for a Claim will be tolled for the duration of the Informal Resolution Period for that Claim so that the parties can engage in this informal dispute-resolution process
- Claims Subject to Binding Arbitration; Exceptions. Except for individual disputes that qualify for small claims court (provided that the small claims court does not permit class or similar representative actions or relief) and any disputes exclusively related to the intellectual property or intellectual property rights of you or Movano, including any disputes in which you or Movano seek injunctive or other equitable relief for the alleged unlawful use of your or Movano’s intellectual property or other infringement of your or Movano’s intellectual property rights (“IP Claims”), all Claims, including Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Section 14(b) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.
- Binding Individual Arbitration. Subject to the terms of this section, Claims may only be settled by binding individual arbitration conducted by National Arbitration and Mediation (“NAM”), https://namadr.com, according to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., (“FAA”) and according to NAM’s Comprehensive Dispute Resolution Rules and Procedures in effect at the time the Claim arose (the “Rules”), as modified by these Terms.
If NAM notifies the parties in writing (email suffices) that it is not available to arbitrate any Claim, then that Claim may only be settled by binding individual arbitration conducted by American Arbitration Association (“AAA”), https://www.adr.org. For Claims that must be arbitrated by AAA, if you are a “Consumer,” meaning that you only use the Products, Services, and the Sites for personal, family or household purposes, the then-current version of the AAA’s Consumer Arbitration Rules are the Rules applicable to Claims between you and Movano as modified by these Terms. For Claims that must be arbitrated by AAA, if you are not a Consumer, the then-current version of the AAA’s Commercial Arbitration Rules and Mediation Procedures are the Rules applicable to Claims between you and Movano as modified by these Terms.
these Terms affects interstate commerce, and the enforceability of this Section 14 will be substantively and procedurally governed by the FAA to the extent permitted by law. As limited by the FAA, these Terms, and the Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Claim and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. To the fullest extent allowed by applicable law, the arbitrator may only award legal or equitable remedies that are individual to you or Movano to satisfy one of our individual Claims (that the arbitrator determines are supported by credible relevant evidence).
- Arbitration Procedure and Location. You or Movano may initiate arbitration of any Claim not resolved during the Informal Resolution Period by filing a demand for arbitration with NAM in accordance with the Rules (or with AAA in accordance with the Rules if applicable pursuant to Section 14(d)).
Instructions for filing a demand for arbitration with NAM are available on the NAM website or by calling NAM at 800-358-2550, and instructions for filing a demand for arbitration with AAA are available on the AAA website or by calling AAA at 800-778-7879. You will send a copy of any demand for arbitration to Movano by certified mail addressed to Movano [ADDRESS] or by email to our Support Page. Movano will send any demand for arbitration to you by certified mail or email using the contact information you have provided to Movano.
The arbitration will be conducted by a single arbitrator in the English language. You and Movano both agree that the arbitrator will be bound by these Terms.
For Claims in which the claimant seeks less than USD $10,000, the arbitrator will decide the matter solely based on written submissions, without a formal hearing, unless the arbitrator decides that a formal hearing is necessary. For Claims in which the claimant seeks USD $10,000 or more, or smaller matters in which the arbitrator determines a hearing to be necessary, hearings will be conducted by video or telephone, unless the arbitrator determines an in-person hearing to be necessary. If an in-person hearing is required and you reside in the United States, the hearing will take place in New York, New York, unless the arbitrator determines that this would pose a hardship for you, in which case the in-person hearing may be conducted in the claimant’s state and county of residence. If you reside outside the United States, the site of any in-person hearing will be determined by the applicable Rules.
The arbitrator (not a judge or jury) will resolve all Claims in arbitration. Unless you and Movano agree otherwise, any decision or award will include a written statement stating the decision of each Claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions.
An arbitration award, and any judgment confirming it, apply only to that specific case; it cannot be used or offered as precedent in any other case except to enforce the award itself unless the parties agree prior to issuance of the award. Any arbitration decision or award may be enforced as a final judgment by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial confirmation of any award and an order of enforcement.
- Arbitration Fees. Each party will be responsible for arbitration fees in accordance with the applicable Rules and these Terms.
- Frivolous or Improper Claims. To the extent permitted by applicable law, a claimant must pay all costs incurred by the defending party, including any attorney’s fees, related to a Claim if an arbitrator determines that (i) the Claim was not warranted by existing law or by a nonfrivolous argument or (ii) the Claim was filed in arbitration for any improper purpose, such as to harass the defending party, cause unnecessary delay, or needlessly increase the cost of dispute resolution.
- Offers of Settlement. Either party may, but is not obligated to, make a written settlement offer for a Claim. If an arbitration decision or award is later issued that is less favorable to a party than the latest written offer of settlement that party did not accept, that party must pay all costs and fees—including arbitration, attorney, and expert fees—incurred by the other party after the written settlement offer was made. The terms of any settlement offer may not be disclosed to an arbitrator until after the arbitrator issues a decision or award on the Claim.
- One Year to Assert Claims. To the extent permitted by law, any Claim or dispute by you or Movano against the other must be filed within one year after such Claim or dispute arises; otherwise, the Claim is permanently barred, which means that you or Movano will not have the right to assert that Claim.
- Confidentiality. If you or Movano submits a Claim to arbitration, you and Movano agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and other materials that might be exchanged or the subject of discovery in the arbitration. You and Movano agree to seek such protection before any such information, documents, testimony, or materials are exchanged or otherwise become the subject of discovery in the arbitration.
- Coordinated Filings. If 25 or more Claimant Notices are received by a party that raise similar claims and have the same or coordinated counsel, these will be considered “Coordinated Claims” and will be treated as mass filings or multiple case filings according to the Rules, if and to the extent Coordinated Claims are filed in arbitration as set forth in these Terms. You or Movano may advise the other of your or Movano’s belief that Claims are Coordinated Claims, and disputes over whether a Claim meets the definition of “Coordinated Claims” will be decided by the arbitration provider as an administrative matter. To the extent either party is asserting the same Claim as other persons and are represented by common or coordinated counsel, that party waives any objection that the joinder of all such persons is impracticable.
Coordinated Claims may only be filed in arbitration as permitted by the process set forth below. Applicable statutes of limitations will be tolled for Claims asserted in Coordinated Claims from the time a compliant Claimant Notice has been received by a party until these Terms permits such Coordinated Claim to be filed in arbitration or court.
Initial Bellwether: The bellwether process set forth in this section will not proceed until counsel representing the Coordinated Claims has advised the other party in writing (email suffices) that all or substantially all the Claimant Notices for the Coordinated Claims have been provided.
After that point, counsel for the parties will select 30 Coordinated Claims to proceed in arbitration as a bellwether to allow each side to test the merits of its arguments. Each side will select 15 claimants who have provided compliant Claimant Notices for this purpose, and only those chosen cases may be filed with the arbitration provider. The parties acknowledge that resolution of some Coordinated Claims will be delayed by this bellwether process. Any remaining Coordinated Claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those Claims, unless and until they are selected to be filed in individual arbitration proceedings as set out in this Section 14(k).
A single arbitrator will preside over each Coordinated Claim chosen for a bellwether proceeding, and only one Coordinated Claim may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise.
Mediation: Once the arbitrations that are part of the bellwether process have concluded (or sooner if the claimants and the other party agree), counsel for the parties must engage in a single mediation of all remaining Coordinated Claims, with the mediator's fee paid for by Movano. Counsel for the claimants and the other party must agree on a mediator within 30 days after the conclusion of the last bellwether arbitration. If counsel for the claimants and the other party cannot agree on a mediator within 30 days, the arbitration provider will appoint a mediator as an administrative matter. All parties will cooperate for the purpose of ensuring that the mediation is scheduled as quickly as practicable after the mediator is appointed.
Remaining Claims: If the mediation process concludes with 100 or more unresolved Coordinated Claims remaining, any party to a remaining Coordinated Claim may elect to no longer have the arbitration requirement in this Section 14 apply to all remaining Coordinated Claims for which a compliant Claimant Notice was received by the other party but that were not resolved in the bellwether process or global mediation. To be effective, such an election must be communicated in writing (email suffices) to counsel for the opposing party within 30 days of mediation concluding. Coordinated Claims released from the arbitration requirement must be resolved in accordance with Section 15.
If the mediation process concludes with fewer than 100 Coordinated Claims remaining or if no party makes a timely election as provided for in the previous paragraph, the arbitrator will randomly select 50 Coordinated Claims (or the total remaining amount if less than 50) to proceed in arbitration as a second batch. The arbitrator will randomly select eligible claimants who have provided compliant Claimant Notices for this purpose, and only those chosen cases may be filed with the arbitration provider. Once all arbitrations in the foregoing process are complete, the parties will repeat this process until all Coordinated Claims have been arbitrated.
If Coordinated Claims released from the arbitration requirement are brought in court, claimants may seek class treatment, but to the fullest extent allowed by applicable law, the classes sought may comprise only the claimants in Coordinated Claims for which a compliant Claimant Notice was received by the other party. Any party may contest class certification at any stage of the litigation and on any available basis.
A court will have authority to enforce the bellwether and mediation processes defined in this section and may enjoin the filing of lawsuits or arbitration demands not made in compliance with it.
- Opting Out of Arbitration. You have the right to opt out of binding arbitration within 30 days of the date you first accepted these Terms by messaging our Support Page or by certified mail addressed to 6800 Koll Ctr. Pkwy, Pleasanton, CA.To be effective, the opt-out notice must include your full name, and mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration in order to be valid. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 15.
- Rejection of Future Arbitration Changes. You may reject any change we make to Section 14 (except address changes) by sending us notice of your rejection within 30 days of the change via email at our Support Page or by certified mail addressed to Movano Inc., at 6800 Koll Ctr. Pkwy, Pleasanton, CA. Changes to Section 14 may only be rejected as a whole, and you may not reject only certain changes to Section 14. If you reject changes made to Section 14, the most recent version of Section 14 that you have not rejected will continue to apply.
- Severability. If any portion of this Section 14 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 14 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 14; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction, in accordance with these Terms, and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 14 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 14 will be enforceable.
- Notwithstanding anything to the contrary in these Terms, if you reside in any country outside of the United States, you may bring legal proceedings regarding these Terms either by following the arbitration procedure detailed above in this Section 14 of these Terms or, if given the right by applicable law, by submitting the dispute to an arbitration administrator in the jurisdiction in which you reside. To the extent any proceeding is not subject to arbitration under applicable law, you may submit the dispute to the courts of the jurisdiction in which you reside.
15 Applicable Law and Venue
Any dispute arising from these Terms or your use of the Products, Services, or the Sites will be governed by and construed and enforced in accordance with the laws of the State of California, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration and cannot be heard in small claims court will be resolved in the state and federal courts located in the County of Alameda, California.
We reserve the right to modify our Products or Services or to discontinue, suspend, update, or terminate providing all or part of our Products or Services at any time; charge, modify, or waive any fees required to use the Products or Services; or offer opportunities to some or all end users of the Products or Services. We may provide you with notice in advance of the suspension or discontinuation of all or part of our Products or Services, such as by sending an email or providing a notice through our Products or Services. All modifications and additions to the Products and Services will be governed by the Terms or Supplemental Terms, unless otherwise expressly stated by Movano in writing. You also have the right to stop using our Products and Services at any time, and you may terminate these Terms by ceasing use of our Products and Services. We may suspend your access to the Service for any time and for any reason or no reason. Termination of your right to use the Service will include the deletion of information in your user account such as your email address, password, and stored records. We are not responsible for any loss or harm related to your inability to access or use our Services.
If any portion of these Terms other than Section 14 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (a) the unenforceable or unlawful provision will be severed from these Terms; (b) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of these Terms; and (c) the unenforceable or unlawful provision may be revised to the extent required to render the Terms enforceable or valid, and the rights and responsibilities of the parties will be interpreted and enforced accordingly, so as to preserve the Terms and the intent of the Terms to the fullest possible extent.
18 Export Control
You are responsible for compliance with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
- Movano’s failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements, and understandings of the parties. The section titles in these Terms are for convenience only and have no legal or contractual effect. Use of the word “including” will be interpreted to mean “including without limitation.” Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. Communications and transactions between us may be conducted electronically.
- If you have a question or complaint regarding the Products or Services, please send an email to email@example.com. You may also contact us by writing to 6800 Koll Ctr. Pkwy, Pleasanton, CA. Please note that email communications will not necessarily be secure; accordingly, you should not include payment card information or other sensitive information in your email correspondence with us. Further, under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.
- Additional Terms Applicable to Mobile Devices
The following terms apply if you install, access, or use the Services on any device that contains the iOS mobile operating system (the “iOS App”) developed by Apple Inc. (“Apple”).
- Acknowledgement. You acknowledge that these Terms are concluded solely between us, and not with Apple. Movano, not Apple, is solely responsible for this iOS App and the content thereof. You further acknowledge that the usage rules for the iOS App are subject to any additional restrictions set forth in the Usage Rules for the Apple iOS App Store Terms of Service as of the date you download the App, and in the event of any conflict, the Usage Rules in the Apple iOS App Store will govern if they are more restrictive. You acknowledge that you have had the opportunity to review the Usage Rules.
- Scope of License. The license granted to you is limited to a non-transferable license to use the iOS App on any iPhone, iPod touch, iPad, or any other Apple device that you own or control as permitted by the Usage Rules set forth in the Apple iOS App Store Terms of Service.
- Maintenance and Support. You and Movano acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
- Warranty. You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the App. In the event of any failure of the iOS App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the iOS App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of Movano. However, Movano has disclaimed all warranties of any kind with respect to the App, and therefore, there are no warranties applicable to the App.
- Product Claims. You and Movano acknowledge that as between Apple and Movano, Movano, not Apple, is responsible for addressing any claims relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to (a) product liability claims, (b) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation.
- Intellectual Property Rights. The parties acknowledge that, in the event of any third-party claim that the iOS App or your possession and use of the iOS App infringe that third party’s intellectual property rights, Movano, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.
- Developer Name and Address. Any questions, complaints, or claims with respect to the iOS App should be directed to: firstname.lastname@example.org.
- Third-Party Terms of Agreement. You will comply with any applicable third-party terms when using the Services.
- Third-Party Beneficiary. Apple and its 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 thereof.