Effective Date: April 1, 2022
You must accept these Terms to create a Feelmore Labs account (an “Account”) and to access or use the Services. If you do not have an Account, or if you do not accept these terms, you may not use the Services.
2. USE OF THE SERVICES
You represent that you are at least 18 years of age or older. Additionally, you cannot access or use the Services if you have previously been suspended or removed from the Services.
You may only connect to the Services using (i) a Cove that is manufactured, distributed, or sold by Feelmore Labs itself or through its authorized resellers or agents; and (ii) our Applications (“Authorized Connections”). Any violation or attempted violation of this provision may result in the immediate termination of your ability to access the Services. If you have questions about whether a product or application qualifies as an Authorized Connection, please contact [email protected].
3. CREATING AN ACCOUNT
To use most of the Services, including your Membership or Subscription, you must create an Account by providing us with information such as your full name and a valid email address, as well as a strong password, if requested. You agree to provide true, accurate and complete information and keep your Account information current and updated. You are responsible for all activity that occurs in association with your Account. Feelmore Labs is not liable for any loss or damages caused by your failure to maintain the confidentiality of your Account credentials. Please contact Customer Care at [email protected] if you discover or suspect any security breach related to the Services or your Account.
4. NECESSARY EQUIPMENT
Full use of the Services is dependent upon your use of a computer with adequate software or a supported mobile device and internet access. The maintenance and security of this equipment may influence the performance of the Services and it is your responsibility to ensure the equipment’s functionality. You are responsible for all internet access charges.
5. FEELMORE CONTENT AND PROPERTY
“Feelmore Labs Content” includes any photos, images, graphics, video, audio, data, text, music, comments, software, works of authorship of any kind, and other information, content, or other materials that are posted, generated, provided, or otherwise made available through, or are otherwise a part of, the Services. Feelmore Labs Content, the Services, and its underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. We reserve all rights not expressly set forth in these Terms. You agree not to remove, change or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Services or the Feelmore Labs Content. Our logos and any other Feelmore Labs trademarks that may appear on the Services, and the overall look and feel of the Services, including page headers, graphics, icons, and scripts, may not be copied, imitated or used, in whole or in part, without our prior written permission. Other trademarks, product, and service names and company names or logos mentioned on the Services are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder.
Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the Services: (1) use Feelmore Labs’ name, any Feelmore Labs trademark or logo, or any Feelmore Labs proprietary information without Feelmore Labs’ express written consent; (2) access or tamper with non-public areas of the Services, Feelmore Labs’ computer systems, or the technical delivery systems of Feelmore Labs’ providers; (3) test the vulnerability of any Feelmore Labs system or breach any security or authentication measures; (4) circumvent any technological measure implemented by Feelmore Labs or any of Feelmore Labs’ providers or any other third party (including another user) to protect the Services; (5) access the Services or Feelmore Labs Content through the use of any mechanism other than through the use of an Authorized Connection or the Services; or (7) modify, decompile, disassemble, reverse engineer, tamper with, or otherwise attempt to derive the source code of any software that Feelmore Labs provides to you or any other part of the Services.
You will not use, sublicense, copy, adapt, modify, translate, disclose, prepare derivative works based upon, distribute, license, sell, rent, lease, assign, transfer, publicly display, publicly perform, transmit, broadcast, or otherwise exploit the Feelmore Labs Content, Services, or any portion thereof (including any third-party software), except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Feelmore Labs or its licensors, except for the licenses and rights expressly granted in these Terms.
The Services may include access to, links to, and content and data from, third-party websites (“External Services”). These links, content, and data are provided solely as a convenience to you, are not an endorsement by us of the content on such External Services and may be subject to separate legal terms and conditions between you and third parties. The content of such External Services is developed and provided by others. In addition, the Services permit access to content posted, stored, or displayed at the direction of users of the Services, for which we cannot accept any responsibility or liability.
6. ACCESS RIGHTS; LICENSE
The Services are intended for your personal, noncommercial use.
Subject to these Terms and only during the term of your Subscription, Feelmore Labs grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to (1) access and use the Services, including the Applications that are a part thereof, (2) access and view the Feelmore Labs Content as part of your use of the Services, and (3) use the software embedded within your Cove as part of your use of the Services. This license is provided solely for your personal, noncommercial use and enjoyment of the Services as permitted in these Terms.
7. FEES; SUBSCRIPTION
In order to use the Services, including use of the software embedded in the Cove, in addition to creating an Account, you must subscribe for and pay any applicable Membership or subscription fees (“Subscription Fees” or “Membership Fees”) when due. You must maintain an active Subscription to continue using the Services. These Terms and your Subscription may be renewed for additional Subscription periods pursuant to the Subscription purchased. FOR THE AVOIDANCE OF DOUBT, YOU MUST MAINTAIN AN ACTIVE SUBSCRIPTION IN ORDER FOR YOUR COVE TO FUNCTION AT ALL.
The payment terms presented to you within an Application or as provided by an authorized third-party reseller include a description of the Subscription Fees and the term of your Subscription or Membership, including the time at which your Subscription or Membership will begin. You agree to pay such Subscription Fees, as well as the Subscription Fees described in these Terms, including any non-refundable Initial Subscription Fee (as described below). Any payment terms presented to you in the process of obtaining your Subscription are deemed part of these Terms and are incorporated herein by reference.
The Subscription payment terms may consist of an initial period, for which there is a one-time charge (“Initial Subscription Fee”), followed by recurring period charges as set forth within the Services or the store through which you purchase such Subscription. By choosing a recurring payment plan, you acknowledge that such Subscription Fees have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY, ANNUALLY, OR EVERY EIGHTEEN MONTHS, DEPENDING ON YOUR SUBSCRIPTION) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO ACCOUNT SETTINGS AT https://www.feelcove.com/account OR WITHIN ANOTHER APPLICATION, AS APPLICABLE.
If you terminate your Subscription, you may continue to use the Services until the end of your then-current term and your Subscription will not be renewed after your then-current term expires. However, you won’t be eligible for a prorated refund of any portion of the Subscription Fee paid for the then-current subscription period. If you do not want to continue to be charged on a recurring basis, you must cancel or terminate your Subscription before the end of the then-current term. Your Subscription cannot be terminated before the end of the period for which you have already paid, and except as expressly provided in these terms, Feelmore Labs will not refund any amounts that you have already paid.
Your non-termination or continued use of your Subscription reaffirms that we are authorized to charge your Payment Method for that Subscription. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance or as otherwise described when you initially selected to purchase the Subscription.
If you have obtained a free Subscription, Feelmore Labs reserves the right at any time to modify or discontinue, temporarily or permanently, such free Subscription, your Account and your access to the Services with or without notice. Unless modified or discontinued by Feelmore Labs in its sole discretion, your free Subscription shall continue until the end of the applicable free Subscription period, or until you cancel or upgrade to a paid Subscription.
If any Subscription Fees that are due are outstanding for a period of three (3) days or more, your Subscription will go into an inactive state. In this inactive state, you will be unable to upload data from your Cove. You will, however, still be able to access any historical data, that is, data which is uploaded prior to your Account entering into an inactive state. Upon appropriate payment, your Account will be reactivated, and you will be able to utilize the full functionality of the Subscription and your Cove.
We may collect payments from you directly or we may use a third-party payment processor (“Payment Processor”) to bill you through a payment account linked to your Account on the Services (your “Billing Account”) for your Subscription. The processing of payments by a Payment Processor will be subject to the terms, conditions and privacy policies of such Payment Processor in addition to these Terms. We are not responsible for any errors by a Payment Processor. By choosing to purchase a Subscription, you agree to pay us, either directly or through a Payment Processor, all Subscription Fees and other charges at the prices then in effect and in accordance with the applicable payment terms and you authorize us, through a Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payment using your selected Payment Method. We reserve the right to correct any errors or mistakes that we or a Payment Processor make even if we or a Payment Processor have already requested or received payment.
YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT ACCOUNT SETTINGS AT https://www.feelcove.com/account. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY SUBSCRIPTION FEES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR SUBSCRIPTION AS SET FORTH ABOVE.
The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through a Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
8. PRODUCT PURCHASES
If you wish to make a purchase through the Cove Store, you may be asked to supply certain relevant information, such as your payment and shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT TO USE ANY PAYMENT METHOD THAT YOU CHOOSE TO USE TO COMPLETE ANY SUCH TRANSACTION. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating transactions. Verification of information may be required prior to the acknowledgment or completion of any transaction.
Prices are stated in United Stated Dollars. We reserve the right to change the prices for any products or services in the Cove Store at any time without notice.
We may refuse or cancel any order or limit any order quantity in our sole discretion, even after receiving your order. We may also require additional qualifying information prior to accepting or processing your order. While it is our practice to confirm orders by e-mail, your receipt of an e-mail confirmation does not constitute our acceptance of your order or our confirmation of an offer to sell a product or service.
We make no representations as to the completeness, accuracy, reliability, validity or timeliness of any listings, descriptions or images (including, without limitation, any features and specifications such as weights and sizes) for any products or services available through the Cove Store. Such information and the availability of any product or service (including, without limitation, the validity of any coupon or discount) are subject to change at any time without notice. We make reasonable efforts to accurately display the attributes of products, including the applicable colors, however the actual colors you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. It is your responsibility to understand and comply with all applicable local, state, federal and foreign laws (including minimum age requirements) regarding the purchase, possession and use of any product or service.
You are solely responsible for determining the compatibility of the products and services with any required equipment (e.g., ensuring that you are using a compatible mobile device). You agree that lack of compatibility does not constitute a defect giving rise to a claim under our Limited product Warranty.
To the extent the products ordered by you contain, consist of, or make available software in any form, such software is licensed to you and not sold, in accordance with our Terms.
The actual delivery of your order can be impacted by many events beyond our control, and you agree we are not liable for late deliveries. Title to the products will pass to you upon delivery of the products to the carrier; however, risk of loss of, or damage to, the products will pass to you upon delivery of the products to you.
We reserve the right to add or remove products and services from the Cove Store at any time for any reason. We also reserve the right to change quantities available for purchase at any time, even after you place an order.
Your purchase of any product, including a Cove, is subject to the terms and conditions of returns and refunds from the store through with you purchased such product, including the terms and conditions set forth on the website of Feelmore Labs if applicable.
9. YOUR CONTENT
Feelmore Labs may enable you to post, upload, store, share, send, or display photos, images, video, data, text, comments, and other information and content (“User Content”) to and via the Services. You retain all rights to User Content that you post to the Services. By making User Content available on or through the Services you hereby grant to Feelmore Labs a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, publicly display, publicly perform, reproduce, translate, create derivative works from, and distribute your User Content, in whole or in part, including your name and likeness, in any media. The rights you grant us in this Section 5 are only for the limited purpose of offering and improving the Services, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels and sharing the User Content with social media platforms (i.e., posting User Content to Twitter or Facebook if enabled in your Account’s sharing settings) with our business partners and licensees for informational and analytical purposes.
You are responsible for your User Content. You represent and warrant that you own your User Content or that you have all rights necessary to grant us a license to use your User Content as described in these Terms.
You represent and warrant that your User Content, the use and provision of your User Content on the Services, and your use of the Services will not (a) infringe, misappropriate, or violate a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy; (b) violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) be fraudulent, false, misleading, or deceptive; (d) be defamatory, obscene, pornographic, vulgar, or offensive; (e) promote discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (f) be threatening or promote violence or actions that are threatening to any person or entity; or (g) promote illegal or harmful activities or substances.
You further agree not to (1) upload any content that contains software viruses or is designed to interrupt, destroy, or limit the functionality of any equipment or services, or that contains other harmful, disruptive, or destructive files or content; (2) use or attempt to use another user’s Account without authorization, or impersonate any person or entity; (3) harvest, solicit, or collect information of other users for any reason whatsoever, including, without limitation, for sending unsolicited communications; (4) post, advertise, or promote products or services commercially, or upload any content that is advertising, promotional material, junk mail, spam, or a contest or sweepstake, or that furthers or promotes criminal activity; or (5) use the Services in any manner that, in our sole discretion, is objectionable or restricts or inhibits any other person from using or enjoying the Services, or which may expose us or our users to any harm or liability of any type.
Feelmore Labs may, in its sole discretion, alter, remove, or refuse to display any of your User Content, and may forbid you from posting, uploading, storing, sharing, sending, or displaying your User Content to and via the Services.
10. OUR ENFORCEMENT RIGHTS
We reserve the right (but are not required) to remove or disable your access to the Services, any Feelmore Labs Content, or User Content at any time and without notice, and at our sole discretion, if we determine that the Feelmore Labs Content, your User Content, or your use of the Services is objectionable or in violation of these Terms. We have the right to investigate violations of these Terms and any conduct that affects the Services, and in response may take any action we may deem appropriate.
11. USE THE SERVICES AT YOUR OWN RISK
If you rely on any Feelmore Labs Content or the Services, you do so solely at your own risk.
Our goal is to provide helpful and accurate information, but we make no endorsement, representation, or warranty of any kind about any Feelmore Labs Content, Services, or any information, data, or results that you may receive through use of the Services. The accuracy of the data collected and presented through the Services is not intended to match that of medical devices or scientific measurement devices. We are not responsible for the accuracy, reliability, availability, effectiveness, or correct use of information you receive through the Services. Feelmore Labs Content and the Services may change from time to time. Use of the Services should not replace your good judgment and common sense.
12. NO MEDICAL ADVICE
We provide the Services for you to track, manage, and share your wellness and other Cove product-related information. THE SERVICES AND ANY RESULTS OR CONTENT DISPLAYED VIA THE SERVICES DO NOT PROVIDE MEDICAL ADVICE AND ARE NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. THE SERVICES ARE NOT INTENDED TO TREAT OR PREVENT ANY MEDICAL CONDITION. ALL CONTENT AVAILABLE THROUGH THE SERVICES IS FOR GENERAL INFORMATIONAL PURPOSES ONLY. USE OF THE SERVICES DOES NOT CREATE ANY PHYSICIAN-PATIENT RELATIONSHIP. If you have any health-related questions, please call or see your doctor or other healthcare provider. You should never disregard medical advice or delay in seeking medical advice because of any content presented on the Services, and you should not use the Services or any content on the Services for diagnosing or treating a medical issue or health problem. You should always consult a qualified and licensed medical professional prior to beginning or modifying any diet, exercise, or wellness program.
13. DMCA/COPYRIGHT POLICY
Feelmore Labs respects the intellectual property of others and expects its users to do the same. It is Feelmore Labs’ policy, in appropriate circumstances and at our discretion, to disable or terminate the Accounts of users who repeatedly infringe the rights of copyright holders.
If you are a copyright owner or an agent thereof and believe that any User Content or Feelmore Labs Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
(iv) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address;
(v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Our designated Copyright Agent to receive notifications of claimed infringement relating to User Content or Feelmore Labs Content is: Copyright Agent, Feelmore Labs, 370 Jay St., 7th Floor, Brooklyn, NY 11201. Only DMCA notices and notices relating to complaints in connection with claimed infringement relating to User Content and Feelmore Labs Content should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be sent via email to [email protected].
14. FEEDBACK AND SUBMISSIONS POLICY
If you submit comments, ideas, or feedback to us, you agree that we can use, disclose, reproduce, distribute, and exploit them without any restriction or compensation to you. We do not waive any rights to use similar or related ideas or feedback previously known to us, developed by Feelmore Labs, or obtained from sources other than you.
15. ALERTS AND NOTIFICATIONS
As part of your use of the Services, you may receive notifications, text messages, alerts, emails, and other electronic communications. You agree to the receipt of these communications. You can control most communications from the Services by using your Account settings. We may need to provide you with certain communications, such as service announcements and administrative messages. You are responsible for any messaging or data fees you may be charged by your wireless carrier. Any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that the communication be in writing.
16. CHANGES TO THE SERVICES
Feelmore Labs may change or discontinue, temporarily or permanently, any feature, component, or content of the Services at any time without notice. Feelmore Labs is not liable to you or to any third party for any modification, suspension, or discontinuance of any feature, component, or content of the Services. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by Feelmore Labs products without prior notice to you.
If you do not maintain an active Subscription and pay all Subscription Fees when due, these Terms shall terminate.
Unless otherwise prohibited by law, and without prejudice to Feelmore Labs’ other rights or remedies, Feelmore Labs shall have the right to immediately terminate (i) your Subscription if you breach any of the terms of these Terms and (ii) any of the Services, in our sole discretion at any time; provided that if you are not in breach of these Terms, we will provide you with a pro rata refund of any Subscription Fee paid by you in advance reflecting the period where you did not benefit from the terminated Services as a result of such termination.
Upon cancellation or termination, all licenses granted to you hereunder shall terminate automatically, your right to use the Services shall cease and your User Content, as defined below, will no longer be available to you through the Services.
We reserve the right to suspend or deactivate your Account or your access to certain aspects or all of the Services, or to terminate these Terms, at our sole discretion, at any time and without notice or liability to you. Upon any such suspension, deactivation, or termination, we may delete or remove User Content and other information related to your Account. You may close your Account at any time by contacting us at [email protected]. Upon any termination of these Terms or suspension, termination, or discontinuation of the Services or your Account, the following provisions of these Terms will survive: Sections 1, 5, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22 and 23.
18. WARRANTY; DISCLAIMERS
Feelmore Labs warrants that the Cove shall be free in all material respects from defects in workmanship and materials for a period of one year commencing on the date of receipt of the product by the buyer (the “Warranty Period” and such warranty, the “Limited Warranty”). The obligation of Feelmore Labs and your sole and exclusive remedy hereunder for a breach of the foregoing warranty (a product which the foregoing warranty is breached shall be referred to as a “Defective Product”) shall be limited, and at Feelmore Labs’ option shall be: (i) the repair or replacement of any Defective Product FOB Feelmore Labs’ place of manufacture; or (ii) a refund of the purchase price paid for the Defective Product. Notwithstanding the foregoing, repairs and replacements for Defective Products have a new warranty on the same terms and conditions set forth above and the Warranty Period shall be the longer of ninety (90) days or the balance of the original one (1) year warranty.
The Limited Warranty does not apply to (i) normal wear and tear, including scratches and dents; (ii) damage resulting from your failure to use the product in accordance with the instructions accompanying the product or available on Feelmore Labs’ website or within the Services; (iii) damage resulting from an accident, flood, fire, misuse, or abuse; or (iv) damage resulting from tampering or alterations to the product, by anyone not authorized by Feelmore Labs; or (vi) use of the product with any Application not expressly approved for use with the product in accordance with the instructions accompanying the product or available on Feelmore Labs’ website or within the Services. Further, in order to qualify for the foregoing warranty, the end-user purchaser must comply with the terms and conditions set forth in these Terms.
If your product is a Defective Product, you may also return your product and Feelmore Labs will inspect the product and determine whether a warranty claim is valid under the Terms. Replacement or refunds for Defective Products apply only to the original end-user purchaser of the product in question. In order to obtain a refund or replacement of a Defective Product, the product in question must be returned to us. Contact us at [email protected] within the Warranty Period for instructions on how to return your product. All returns will be at the expense of the purchaser. Feelmore Labs will inspect the product and determine whether a warranty claim is valid under the terms hereof. All Defective Products returned to Feelmore Labs hereunder will become its property subject to the obligation of Feelmore Labs to provide a refund or replacement for the Defective Product, if applicable.
For Defective Products, you shall be responsible for returning the Defective Product. Replacement products may be new or refurbished at Feelmore Lab’s discretion.
THE SERVICES AND FEELMORE LABS CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services or Feelmore Labs Content will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness, or reliability of the Services, any Feelmore Labs Content, or any data or results you obtain by using the Services.
You will indemnify and hold harmless Feelmore Labs and its officers, directors, employees, affiliates, agents, licensors, and contractors from and against any claims, suits, actions, demands, disputes, allegations, or investigations brought by any third party, governmental authority, or industry body, and all liabilities, damages, losses, costs, and expenses, including without limitation reasonable attorneys’ fees, arising out of or in any way connected with (i) your access to or use of the Services, (ii) your User Content, (iii) your breach or alleged breach of any warranties made by you hereunder or your violation of any other provision of these Terms, or (iv) your violation of any law or the rights of a third-party. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
20. LIMITATION OF LIABILITY
NEITHER FEELMORE LABS, ITS SUPPLIERS, OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT FEELMORE LABS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL FEELMORE LABS’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID TO FEELMORE LABS FOR USE OF THE SERVICES OR TEN DOLLARS ($10), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO FEELMORE LABS, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FEELMORE LABS AND YOU.
21. DISPUTE RESOLUTION AND CLASS ACTION WAIVER
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
You agree that any dispute between you and Feelmore Labs arising out of or relating to these Terms, the Websites, or any other Feelmore Labs products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.
Informal Dispute Resolution: We want to address your concerns without needing a formal legal case. Before filing a claim against Feelmore Labs, you agree to try to resolve the Dispute informally by contacting us at [email protected]. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or Feelmore Labs may bring a formal proceeding.
Mandatory Arbitration and CLASS ACTION WAIVER: You and Feelmore Labs agree that any dispute, claim, or controversy that relates to or arises from these Terms of Service or the Services other than any claim or demand that relates to the Intellectual Property Rights of Feelmore Labs or arising under Section 6 will be determined by mandatory binding individual (not class) arbitration. You and Feelmore Labs further agree that the arbitrator shall have the exclusive power to rule on its own jurisdiction, including any objections with respect to the existence, scope or validity of any provision of these Terms of Service or to the arbitrability of any claim or counterclaim. Notwithstanding the above, You and Feelmore Labs both agree that neither of us waive or limit our rights to (a) bring an individual action in a U.S. small claims court or (b) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitrator. EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES, CLAIMS, AND CONTROVERSIES THAT RELATE TO THESE TERMS OR OUR SERVICES, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND YOU AGREE THAT FEELMORE LABS AND YOU ARE EACH WAIVING THE RIGHT TO SUE IN COURT AND TO HAVE A TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU HEREBY AGREE THAT YOU MAY NOT AND WILL NOT PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION, AS A PLAINTIFF OR CLASS MEMBER IN ANY SUCH ACTION. Unless both You and Feelmore Labs agree, no arbitrator or judge may consolidate more than one person's claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph's limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court. Either You or Feelmore Labs may start arbitration proceedings. Any arbitration between You and Feelmore Labs will take place under the Consumer Arbitration Rules of the American Arbitration Association ("AAA") then in force (the "AAA Rules"), as modified by these Terms. You and Feelmore Labs agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above). Any arbitration hearings will take place in Wilmington, Delaware. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail, Federal Express, UPS, or Express Mail (signature required), or in the event that we do not have a physical address on file for You, by email ("Notice"). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within thirty (30) days after the Notice is received, You or Feelmore Labs may commence an arbitration proceeding. All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of the arbitrator's decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law.
Limitation on Claims: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Feelmore Labs products or the Websites must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
22. APP STORES AND THIRD PARTY CHANNELS
Feelmore Labs offers Applications that may be made available through the Apple App Store, the Google Play Store or other distribution channels (“Distribution Channels”). If you obtain an Application through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. This Agreement is between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third party products and services in connection with your use of our Services, you agree to comply with all applicable terms of any agreement for such third party products and services.
With respect to software that is made available for your use in connection with an Apple-branded product (such software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms, the following terms and conditions apply:
Feelmore Labs and you acknowledge that these Terms are concluded between Feelmore Labs and you only, and not with Apple Inc. or any of its affiliates (collectively, “Apple”), and that as between Feelmore Labs and Apple, Feelmore Labs, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
To the extent that any of these Terms provide for usage rules for the Services that are in conflict with the Apple Media Services Terms and Conditions as of the date on which you agree to these Terms, then these Terms shall be automatically modified to be made consistent with such terms.
The license granted to you for the Apple-Enabled Software is a non-transferable license to use such version of the Services on any Apple-branded Products that you own or control and solely as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that such version of the Services may be accessed and used by other accounts associated with you via Family Sharing or volume purchasing.
Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any, paid through Apple’s Distribution Channel; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software (or any other product or Application), or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Feelmore Labs’ sole responsibility, to the extent it cannot be disclaimed under applicable law.
Feelmore Labs and you acknowledge that Feelmore Labs, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, as well as the Cove and any other Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
Feelmore Labs has no obligation to indemnify or defend you with respect to any third-party claim arising out of or relating to the Services. In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, and either Apple or Feelmore Labs is required to indemnify or defend you, then Feelmore Labs, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
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.
If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Feelmore Labs at the e-mail address, phone number or mailing address set forth in these Terms.
Feelmore Labs and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
23. GENERAL TERMS
Except as otherwise stated herein, these Terms constitute the entire and exclusive understanding and agreement between Feelmore Labs and you regarding your use of the Services and the Feelmore Labs Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Feelmore Labs and you regarding your use of the Services and the Feelmore Labs Content.
We will notify you before we make material changes to these Terms and give you an opportunity to review the revised Terms before continuing to use the Services and the Feelmore Labs Content. When you use the Services and the Feelmore Labs Content after a modification becomes effective, you are telling us that you accept the modified Terms.
If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign, delegate, or transfer these Terms, by operation of law or otherwise, without Feelmore Labs’ prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Feelmore Labs may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.
Any notices or other communications provided by Feelmore Labs under these Terms, including those regarding modifications to these Terms, will be given: (i) via email or text message, or (ii) by posting to the Websites. For notices made by e-mail, the date of receipt on the message will be deemed the date on which such notice is transmitted.
Feelmore Labs’ failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Feelmore Labs. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
PLEASE CONTACT US IF YOU HAVE ANY QUESTIONS ABOUT THESE TERMS.
You may contact us at [email protected] or at our mailing address below.
Feelmore Labs, Inc.
c/o NYU Tandon Future Labs370 Jay Street, 7th FloorBrooklyn, NY 11201
U.S. Patent No. 10,786,666. U.S. and International Patents Pending. Copyright © 2021 Feelmore Labs, Inc. All Rights Reserved.
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