TERMS OF SERVICE
Last updated: 01/18/2023
Introduction
Welcome to Malama Health, Inc. (“Malama”, “we”, “us”, “our”)! Please read this Terms of Use Agreement (this “Agreement”) carefully. This Agreement governs your access and use of our Services (as defined below) as well as your access and use of the website located at heymalama.co (the “Website”), the Malama mobile application (the “Application”) and the content available on the Website, Application and Services (collectively, the “Platform”). The Platform and all information provided on it are provided for informational purposes only and should not in any circumstances be treated as a substitute for professional medical advice, diagnosis or treatment.
BY ACCESSING OR USING THE PLATFORM, CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE PLATFORM OR DOWNLOADING THE APPLICATION, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE AT LEAST SIXTEEN (16) YEARS OF AGE, (3) YOU RESIDE IN THE UNITED STATES, AND (4) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE INDIVIDUAL YOU HAVE NAMED AS THE USER, AND TO BIND THAT INDIVIDUAL TO THE TERMS OF USE AND THE PRIVACY POLICY. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF USE, YOU ARE NOT AUTHORIZED TO ACCESS OR OTHERWISE USE THE PLATFORM AND YOU MUST PROMPTLY EXIT THE PLATFORM AND STOP USING THE SERVICES. IN THIS AGREEMENT, THE TERMS “YOU” AND “YOUR” MEAN YOU, AS THE VISITOR OR THE USER OF THE PLATFORM.
PLEASE BE AWARE THAT SECTION 13 CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND MALAMA. AMONG OTHER THINGS, SECTION 13 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 13 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 13 CAREFULLY.
UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
PLEASE BE AWARE THAT SECTION 2.7 (MALAMA COMMUNICATIONS) OF THIS AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, TEXT MESSAGE AND PUSH NOTIFICATION.
DO NOT USE THIS PLATFORM FOR EMERGENCY MEDICAL NEEDS. IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, YOU SHOULD DIAL “911” IMMEDIATELY.
1. NOTICE OF CHANGES TO THESE TERMS. Please note that this Agreement is subject to change by Malama in its sole discretion at any time. When changes are made, Malama will make a new copy of the Terms of Use Agreement available on the Website and update the “Last Updated” date at the top of the Terms of Use Agreement. If we make any material changes, and you have registered with us to create an Account (as defined in Section 3.1 (Registering Your Account) below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to this Agreement. Any changes to this Agreement will be effective immediately for new users of the Platform and will be effective thirty (30) days after posting notice of such changes on the Website for existing Registered Users. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Platform and terminate your Account with us. Otherwise, your continued use of the Platform constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
2. USE OF THE PLATFORM.
2.1 Services Overview. Malama provides access to personalized support for women managing perinatal conditions, including gestational diabetes. The services offered through the Platform (collectively, “Services”) may include: (i) access to informational resources related to gestational diabetes, (ii) Patient Kits (as defined below) that include a glucometer and test strips for monitoring blood sugar levels, and (iii) access to the Application that allows Registered Users to log and track glucose levels, among other functions.
2.2 No Medical Advice or Healthcare Services. The Platform is not intended to provide treatment decisions or to be used as a substitute for professional healthcare advice. Malama does not offer or provide any medical OR OTHER PROFESSIOnAL HEALTHCARE advice and the Services and content provided or accessed through the Platform are for informational purposes only. You understand that Malama is not a healthcare professional and Malama does not offer medical OR ANY PROFESSIONAL HEALTHCARE advice or DIAGNOSES OR engage in the practice of medicine or provision of ANY PROFESSIONAL healthcare services of any kind. The Platform is not intended to be a substitute for professional CLINICAL advice, diagnosis, or treatment and is offered for informational purposes only. [TO THE EXTENT YOU USE THE PLATFORM TO FACILITATE THE EXCHANGE OF HEALTH INFORMATION BETWEEN YOU AND YOUR PROVIDER, YOU ACKNOWLEDGE THAT MALAMA IS SOLELY ACTING AS THE PROVIDER OF SOFTWARE TO FACILITATE THE EXCHANGE OF SUCH INFORMATION AND MALAMA IS NOT ACTING AS A CLINICAL PROVIDER IN ANY CAPACITY. MALAMA’S SERVICES ARE SOLELY INTENDED TO SUPPORT THE RELATIONSHIP BETWEEN YOU AND YOUR HEALTHCARE PROVIDER(S), NOT REPLACE IT.] The User is solely responsible for obtaining proper treatment for User’s conditions. Always seek the advice of your physician or other qualified health provider (each, a “Health Care Provider”) with any questions regarding your medical condition or the use (or frequency) of any medication or medical device. YOUR HEALTHCARE PROVIDER, AND NOT MALAMA, IS RESPONSIBLE FOR THE TREATMENT YOUR HEALTHCARE PROVIDER PROVIDES TO YOU, INCLUDING ANY COMMUNICATIONS BETWEEN YOU AND YOUR HEALTHCARE PROVIDER THAT MAY OCCUR THROUGH THE PLATFORM.
2.3 Not for Emergencies. THE SERVICES, INCLUDING ANY COMMUNICATIONS THAT MAY OCCUR BETWEEN YOU AND YOUR HEALTH CARE PROVIDER THROUGH THE PLATFORM, ARE NOT FOR EMERGENCIES. IF YOU BELIEVE YOU HAVE AN EMERGENCY, CALL 911 IMMEDIATELY.
2.4 Limited License. The Platform, and the information and content available on the Platform, are protected by copyright laws throughout the world. Subject to the terms of this Agreement, Malama grants you a limited license to use and access the Platform and reproduce information obtained from the Platform solely for your personal use and in no circumstances for any commercial purpose. Malama, its suppliers and service providers reserve all rights not granted in this Agreement.
2.5 Application License. Subject to your compliance with the Agreement, Malama grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.
2.6 Updates. You understand that the Platform is constantly evolving. You acknowledge and agree that Malama may update the Platform with or without notifying you. Any future release, update or other addition to the Platform shall be subject to this Agreement. You may need to update third-party software from time to time in order to use the Platform.
2.7 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Platform or any portion of it; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other properties owned or licensed by Malama (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Malama’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Platform except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Platform or any information contained therein may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Platform. Malama may terminate the licenses granted hereunder and this Agreement immediately if you breach any part of this Section 2.6 or engage in any other unauthorized use of the Platform.
2.8 Malama Communications. By entering into this Agreement or using the Platform, you agree to receive communications from us or your Health Care Provider, including via e-mail, text message, and push notifications. You agree that texts may be generated by automatic telephone dialing systems. communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Platform, updates concerning new and existing features on the Platform, and news concerning Malama and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. IF YOU WISH TO OPT OUT OF ALL TEXTS FROM US (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS), YOU MAY OPT OUT OF RECEIVING SUCH COMMUNICATIONS BY FOLLOWING THE UNSUBSCRIBE OPTIONS WE PROVIDE TO YOU. YOU MAY ALSO OPT-OUT OF TEXT MESSAGES FROM US BY TEXTING THE WORD “STOP” FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE PLATFORM OR RELATED SERVICES. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.
3. REGISTRATION.
3.1 Registering Your Account. In order to access certain features of the Platform, you must be a Registered User. For purposes of this Agreement, a “Registered User” is a user who has registered for an account on the Platform (“Account”) after receiving a referral by a Health Care Provider or is deemed eligible after completing the eligibility questionnaire and consultation by Malama. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Malama.
3.2 Registration Data. In registering an account on the Platform, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Platform by minors. You may not share your Account or password with anyone (including your Health Care Provider), and you agree to (y) notify Malama immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Malama has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Malama has the right to suspend or terminate your Account and refuse any and all current or future use of the Platform (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. Malama reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Platform if you have been previously removed by Malama, or if you have been previously banned from any Malama product or service.
3.3 Patient Kits. Upon successful completion of the registration process, Registered Users participating in a pilot program, or who separately purchase, will receive a patient kit (the “Patient Kit”) at the mailing address associated with your Account. The Patient Kit contains one (1) glucometer for syncing to the Application, test strips and other materials for accessing and using the Platform. All Patient Kits are to be used only for personal use by the Registered User. You must use the contents of the Patient Kit in accordance with any written instructions or other documentation provided.
3.4 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Platform including but not limited to, a mobile device that is suitable to connect with and use the Platform. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Platform.
4. RESPONSIBILITY FOR DATA.
4.1 User Data. You acknowledge that all health data collected through the use of a glucometer that has been synced with the Application, as well as inputs, logs, reports, information, text, images or other data uploaded or otherwise provided through the Platform or Services (“Data”) is the sole responsibility of the party from whom such Data originated. This means that you, and not Malama, are entirely responsible for all Data that you upload, post, transmit, generate, input or otherwise make available (“Make Available”) through the Platform (“Your Data”), and that you and other Registered Users of the Platform, and not Malama, are similarly responsible for all Data that you and they Make Available through the Platform (“User Data”).
4.2 No Obligation to Pre-Screen Data. You acknowledge that Malama has no obligation to pre-screen Your Data or User Data, although Malama reserves the right in its sole discretion to do so and to refuse or remove any Data. By entering into this Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Data, including without limitation chat, text, or voice communications. In the event that Malama pre-screens, refuses or removes any Data, you acknowledge that Malama will do so for Malama’s benefit, not yours. Without limiting the foregoing, Malama shall have the right to remove any Data that violates this Agreement or is otherwise objectionable.
4.3 Storage. Unless expressly agreed to by Malama in writing elsewhere, Malama has no obligation to store any of Your Data that you Make Available on the Platform. Malama has no responsibility or liability for the deletion or accuracy of any Data, including Your Data; the failure to store, transmit or receive transmission of Data; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Platform. Certain features may enable you to specify the level at which the Platform restricts access to Your Data. You are solely responsible for applying the appropriate level of access to Your Data. If you do not choose, the system may default to its most permissive setting. You agree that Malama retains the right to create reasonable limits on Malama’s use and storage of the Data, including Your Data, such as limits on file size, storage space, processing capacity, and similar limits described on the Platform and as otherwise determined by Malama in its sole discretion.
5. OWNERSHIP.
5.1 The Platform. Except with respect to Your Data and User Data, you agree that Malama and its suppliers own all rights, title and interest in the Platform (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Platform.
5.2 Trademarks. The graphics, logos, service marks and trade names used on or in connection with the Platform are the trademarks of Malama and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Platform are the property of their respective owners.
5.3 Your Data. Malama does not claim ownership of Your Data. However, when you as a Registered User post or publish Your Data on or in the Platform, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Data (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Data.
5.4 License to Your Data. Subject to any applicable account settings that you select, you grant Malama a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Data (in whole, part or in aggregated form) for the purposes of operating and providing the Platform and Services to you and to our other Registered Users, and on an aggregated, de-identified basis, for the purposes of improving the Platform and Services and Malama’s other products and services. You agree that you, not Malama, are responsible for all of Your Data that you Make Available on or in the Platform or Services.
5.5 Access by Health Care Providers. If you were referred to the Platform by Health Care Provider or if you choose to use the Platform together with your Health Care Provider, you may share Your Data through the Application. Your Health Care Provider will have access and be able to view through their dashboard, any of Your Data that you grant sharing access to. Malama is in no way responsible for any processing of Your Data conducted by Health Care Providers.
5.6 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Malama through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Malama has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Malama a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Platform and/or Malama’s business.
6. USER CONDUCT ON PLATFORM. As a condition of use, you agree not to use the Platform for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Data on or through the Platform that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Malama; (vi) interferes with or attempt to interfere with the proper functioning of the Platform or uses the Platform in any way not expressly permitted by this Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against the Platform, including but not limited to violating or attempting to violate any security features of the Platform, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Platform, introducing viruses, worms, or similar harmful code into the Platform, or interfering or attempting to interfere with use of the Platform by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”.
7. INVESTIGATIONS. If Malama becomes aware of any possible violations by you of any provision of this Agreement, Malama reserves the right to investigate such violations, and Malama may, at its sole discretion, immediately terminate your license to use the Platform, or change, alter or remove Your Data, in whole or in part, without prior notice to you.
8. Indemnification. You agree to indemnify and hold Malama, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Malama Party” and collectively, the “Malama Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Data; (b) your use of, or inability to use, the Platform; (c) your violation of this Agreement; (d) your violation of any rights of another party, including any Registered Users; (e) a claim by your child(ren) as a result of your use, disclosure or sharing of their personal information on the Platform; or (f) your violation of any applicable laws, rules or regulations. Malama reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Malama in asserting any available defenses. This provision does not require you to indemnify any of the Malama Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Platform or any services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, this Agreement and/or your access to the Platform.
9. DISCLAIMER OF WARRANTIES AND CONDITIONS.
9.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE PLATFORM AND ANY INFORMATION THEREFROM IS AT YOUR SOLE RISK, AND THE PLATFORM AND ALL INFORMATION CONTAINED THEREON IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. MALAMA PARTIES EXPRESSLY DISCLAIM REPRESENTATIONS AND WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE PLATFORM, THE SERVICES, AND ANY CONTENT, INFORMATION, PRODUCT, SERVICE OR OTHER MATERIALS PROVIDED ON OR THROUGH THE PLATFORM OR THE SERVICES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THE QUALITY, ACCURACY, COMPLETENESS OR TIMELINESS OF INFORMATION, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS. SOME LAWS DO NOT ALLOW THE LIMTIATION OR EXCLUSION OF LIABILITY, SO THESE LIMITS MAY NOT APPLY TO YOU.
(a) MALAMA PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE PLATFORM WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE.
(b) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. MALAMA MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE PLATFORM OR ITS INFORMATION.
9.2 No Liability for Products Offered. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE USE OR MISUSE OF THE PRODUCTS OBTAINED THROUGH OUR PLATFORM (INCLUDING GLUCOMETERS AND TEST STRIPS) MAY RESULT IN UNDESIRABLE OR UNEXPECTED CONSEQUENCES. TO THE FULLEST EXTENT OF APPLICABLE LAW, MALAMA DOES NOT ACCEPT ANY LIABILITY FOR THE CONSEQUENCES ARISING FROM THE APPLICATION, USE, OR MISUSE OF ANY PRODUCTS (INCLUDING GLUCOMETERS AND TEST STRIPS) OR SERVICES CONTAINED ON OR MADE AVAILABLE THROUGH THE PLATFORM, INCLUDING ANY INJURY OR DAMAGE TO ANY PERSON OR PROPERTY AS A MATTER OF NEGLIGENCE, OR OTHERWISE, INCLUDING YOUR FAILURE TO COMPLY WITH ANY INSTRUCTIONS PROVIDED WITH AN APPLICABLE PRODUCT.
9.3 No Liability for Conduct of Health Care Providers. MALAMA DOES NOT ENDORSE, RECOMMEND OR ASSUME RESPONSIBILITY FOR ANY PARTICULAR HEALTHCARE PROVIDER, PRODUCT, TREATMENT, OR SERVICE. YOU UNDERSTAND THAT MALAMA DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF HEALTH CARE PROVIDERS ON THE PLATFORM. MALAMA MAKES NO WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER DATA PROVIDED OR OBTAINED THROUGH THE PLATFORM. MALAMA MAKES NO WARRANTY THAT HEALTH CARE PROVIDERS WILL PROVIDE ACCURATE INFORMATION. MALAMA IS NOT RESPONSIBLE OR LIABLE FOR ANY ADVICE, COURSE OF TREATMENT, DIAGNOSIS OR ANY OTHER INFORMATION, SERVICES OR PRODUCTS THAT YOU MAY OBTAIN THROUGH YOUR USE OF THE PLATFORM. FURTHER, MALAMA DOES NOT GUARANTEE ANY PARTICULAR OUTCOME, INCLUDING ANY IMPROVEMENT IN YOUR HEALTH OR WELLBEING, BASED ON YOUR USE OF THE PLATFORM.
10. LIMITATION OF LIABILITY.
10.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL MALAMA PARTIES BE LIABLE FOR ANY LOSS OF DATA, LOSS OF YOUR DATA, OR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, IN EACH CASE WHETHER OR NOT MALAMA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH HEALTH CARE PROVIDERS ON THE PLATFORM, ON ANY THEORY OF LIABILITY, RESULTING FROM: (A) THE USE OR INABILITY TO USE THE PLATFORM; (B) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (C) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE PLATFORM; OR (D) ANY OTHER MATTER RELATED TO THE PLATFORM, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A MALAMA PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A MALAMA PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A MALAMA PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. IN THE EVENT THAT APPLICABLE LAW DOES NOT ALLOW THIS LIMITATION OR EXCLUSION OF LIABILITY OR DAMAGES, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT THE AGGREGATE LIABILITY OF THE MALAMA PARTIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION OF ANY KIND ARISING OUT OF USE OF THE SERVICES, THIS AGREEMENT SHALL NOT EXCEED ONE HUNDRED DOLLARS (USD $100).
11. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Malama’s policy to terminate membership privileges of any Registered User who repeatedly infringes copyright upon prompt notification to Malama by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Platform in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Platform of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. You can contact our Copyright Agent by email at copyright@heymalama.com.
12. TERM AND TERMINATION.
12.1 Term. This Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Platform or maintain an Account, unless terminated earlier in accordance with this Agreement.
12.2 Termination. Malama has the right to suspend or terminate the function or existence of all or any part of the Platform and/or your Account at any time, and without notice as it deems advisable, including where you violate this Agreement, as required by law, or due to security or welfare concerns. To the extent permitted by applicable law, Malama shall not be liable to you or any third party(s) for any loss or damage that is caused by or arises from or in connection with any such suspensions or terminations. You may terminate this Agreement, your Account or your access to the Platform at any time, for any reason by sending an email to: legal@heymalama.com.
12.3 Effect of Termination. Termination of your Account includes removal of access to the Platform and barring of further use of the Platform and also includes deletion of your password and all related information, files and Data associated with or inside your Account (or any part thereof), including Your Data. Upon termination of your Account, your right to use the Platform will automatically terminate immediately. You understand that any termination of your Account may involve deletion of Your Data associated therewith from our live databases. All provisions of this Agreement which by their nature should survive, shall survive termination of your Account, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
13. ARBITRATION AGREEMENT.
13.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Malama agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Platform or the Services, any communications you receive, any products sold or distributed through the Platform, the Services, or the Agreement and prior versions of the Agreement, including claims and disputes that arose between us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Malama may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Malama may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of this Agreement.
13.2 Informal Dispute Resolution. There might be instances when a Dispute arises between you and Malama. If that occurs, Malama is committed to working with you to reach a reasonable resolution. You and Malama agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Malama therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Malama that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to legal@heymalama.com or regular mail to our offices located at 2261 Market Street #4875, San Francisco, CA 94114. The Notice must include: (1) your name, telephone number, mailing address, email address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
13.3 Waiver of Jury Trial. YOU AND MALAMA HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Malama are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
13.4 Waiver of Class or Other Non-Individualized Relief. YOU AND MALAMA AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 13.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection 13.9 entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Malama agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of California. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Malama from participating in a class-wide settlement of claims.
13.5 Rules and Forum. The Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Malama agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and Malama otherwise agree, or the Batch Arbitration process discussed in subsection 13.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.
You and Malama agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
13.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under subsection 13.9 is triggered, the AAA will appoint the arbitrator for each batch.
13.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
13.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Malama need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
13.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Malama agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Malama by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Malama.
You and Malama agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
13.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: 2261 Market Street #4875, San Francisco, CA 94114, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
13.11 Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Malama as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
13.12 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Malama makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Malama at 2261 Market Street #4875, San Francisco, CA 94114, your continued use of the Platform, including the acceptance of products and services offered on the Platform following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Platform, any communications you receive, any products distributed through the Platform or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to Agreement) remain in full force and effect. Malama will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
14. THIRD-PARTY SERVICES. The Platform may contain links to third-party websites, applications and advertisements for third parties (collectively, the “Third-Party Services”). When you click on a link to a Third-Party Service, we will not warn you that you have left the Platform and are subject to the terms and conditions (including privacy policies) of such Third-Party Service. Such Third-Party Services are not under the control of Malama. Malama is not responsible for any Third-Party Services. Malama provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Service, or any product or service provided in connection therewith. You use all links in and to Third-Party Services at your own risk. When you leave our Platform, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party
15. SOCIAL MEDIA. We may maintain a presence on and link to social media websites or applications, including LinkedIn, Twitter, and Instagram, (collectively, “Social Media Pages”), to provide a place for people to learn more about us and our services. When you visit these Social Media Pages, you are no longer on our Website or Application, but rather a website operated by a third party. All comments, visuals and other materials posted by visitors to our Social Media Pages do not necessarily reflect our opinions, values or ideas. All visitors to our Social Media Pages must comply with the respective social media platform’s terms of use.
16. App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Malama and not with the App Store. Malama, not the App Store, is solely responsible for the Platform, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Platform, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using the Platform, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
16.1 Accessing and Downloading the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Agreement is concluded between you and Malama only, and not Apple, and (ii) Malama, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Malama and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Malama.
(d) You and Malama acknowledge that, as between Malama and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Malama acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Malama and Apple, Malama, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
(f) You and Malama acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
17. GENERAL PROVISIONS.
17.1 Electronic Communications. The communications between you and Malama may take place via electronic means, whether you visit the Platform or send Malama e-mails, or whether Malama posts notices on the Platform or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Malama in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Malama provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
17.2 Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Malama’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
17.3 Force Majeure. Malama shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, epidemics, government orders, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
17.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: 2261 Market Street #4875, San Francisco, CA 94114. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
17.5 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California without giving effect to any principles that provide for the application of the law of another jurisdiction. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Malama agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in San Francisco, California.
17.6 Notice. Where Malama requires that you provide an e-mail address, you are responsible for providing Malama with your most current e-mail address. In the event that the last e-mail address you provided to Malama is not valid, or for any reason is not capable of delivering to you any notices required/permitted by this Agreement, Malama’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Malama at the following address: 2261 Market Street #4875, San Francisco, CA 94114. Such notice shall be deemed given when received by Malama by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
17.7 Severability; Waiver. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17.8 Export Control. You may not use, export, import, or transfer the Platform except as authorized by U.S. law, the laws of the jurisdiction in which you obtained access to the Platform, and any other applicable laws. In particular, but without limitation, any information contained within the Platform may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Platform, you 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. You acknowledge and agree that products, services or technology provided by Malama are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Malama products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
17.9 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
17.10 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.