Roam Terms of Service
Last Updated: April 27, 2021
Welcome, and thank you for your interest in Ascend.Health, a service of Roam Robotics, Inc. (“Roam,” “we,” or “us”) and the Ascend.Health website at www. www.ascend.health, along with our related websites, hosted or downloadable applications, mobile applications, other services and any related information and documentation provided by us (collectively, the “Services”). These Terms of Service are a legally binding contract between you and Roam regarding your use of the Services.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICES, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ROAM’S PRIVACY POLICY (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICES. YOUR USE OF THE SERVICES, AND ROAM’S PROVISION OF THE SERVICES TO YOU, CONSTITUTES AN AGREEMENT BY ROAM AND BY YOU TO BE BOUND BY THESE TERMS.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 17, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND ROAM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 17.)
Roam Services Overview. Roam develops and distributes wearable robotics. In addition to Roam’s proprietary hardware, Roam offers its mobile application (the “App”) for: (1) individuals—both (a) osteoarthritic patients who use the Ascend Device (defined below) and (b) individuals who do not use the Ascend Device—who use the App to monitor their mobility, manage medication, monitor sleep patterns, engage with compliance motivators, and other health-related uses (“Users”); and (2) licensed orthotists, prosthetists, and other licensed healthcare providers (including, but not limited to, orthopedic surgeons and physical medicine and rehabilitation physicians) who use the App to adjust and calibrate the Ascend Device for their patients (who may or may not be Users) (“Providers”). These terms govern the use of the Services for both Users and Providers.
Eligibility. You must be at least 18 years old to use the Services. By agreeing to these Terms, you represent and warrant to us that: (1) you are at least 18 years old; (2) you have not previously been suspended or removed from the Services; and (3) your registration and your use of the Services are in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
Accounts and Registration. To access most features of the Services, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, phone number, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. You are solely responsible for maintaining the confidentiality of your account, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at hello@ascend.health.
Licenses
Limited License to Users. Subject to your complete and ongoing compliance with these Terms, Roam grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile or other downloadable application associated with the Services obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use the Services.
Limited License to Providers. Subject to your complete and ongoing compliance with these Terms, Roam grants you, solely for your professional use in connection with Roam’s proprietary customized smart knee orthosis that is a class I device registered with the U.S. Food and Drug Administration (the “Ascend Device”), a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Services obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use the Services.
License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Services; (b) make modifications to the Services; or (c) interfere with or circumvent any feature of the Services, including any security or access control mechanism. If you are prohibited under applicable law from using the Services, you may not use it.
Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Services (“Feedback”), then you hereby grant Roam an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Services and create other products and Services.
Assumption of Risk.
Users. Roam cares about your health and safety. The Services are intended to help you better integrate mobility into your daily life and to stay physically active. However, the Services do not, and are not intended to, replace the advice of your healthcare provider(s) and is not intended to be medical advice. By using the Services, you agree, represent and warrant that you have received approval from your physician to the Services and any of the related activities or behaviors that are suggested or introduced to you in connection with the Services, and that you have consulted with your physician before making any dietary changes based upon information available through the Services. Everyone’s condition and abilities are different, and participating in the activities or behaviors promoted by our Services is at your own risk. If you choose to participate in these activities, you do so of your own free will and accord, knowingly and voluntarily assuming all risks associated with such activities. Activities promoted by the Services may pose risks even to those who are currently in good health.
You use the Services solely at your own risk. Roam makes no representation or warranty of any kind about the effectiveness or accuracy of the Services, including, but not limited to, any health-related features of the App. Roam is not responsible, and assumes no liability, for the accuracy, reliability, availability, effectiveness, or correct use of information you receive through the Services. Certain features may be unavailable, inaccurate or incomplete. Use of the Services should not replace your own judgement.
The Services are not intended to diagnose, treat, cure, or prevent any disease. If you have a medical condition, consult your doctor before using the Services in any way, including, but not limited to, changing your diet, sleep patterns, exercise, activity level, or medication. If you experience a medical emergency, consult with a medical professional. We are not responsible for any health problems that may result from your use of any information you learn about through the Services. If you engage in any activities or behaviors that you receive or learn about through the Services, you agree that you do so at your own risk and are voluntarily participating in these activities.
Providers. Providers use the Services solely at their own risk. Roam makes no representation or warranty of any kind about the effectiveness or accuracy of the Services, including, but not limited to, any measurement or calibration features of the App. The App and related Services are meant solely as a tool to enhance, not to replace, your professional judgement. Roam is not responsible and assumes no liability for the accuracy, reliability, availability, effectiveness, or correct use of information you receive through the Services.
Ownership; Proprietary Rights. The Services are owned and operated by Roam. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, Services, and all other elements of the Services (“Materials”) provided by Roam are protected by intellectual property and other laws. All Materials included in the Services are the property of Roam or its third party licensors. Except as expressly authorized by Roam, you may not make use of the Materials. Roam reserves all rights to the Materials not granted expressly in these Terms.
Third Party Terms
Third Party Services and Linked Websites. Roam may provide tools through the Services that enable you to export information, including User Content (defined below), to third party Services, including through features that allow you to link your account on Roam with an account on the third party Services, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that Roam may transfer that information to the applicable third party services. Third party Services are not under Roam’s control, and, to the fullest extent permitted by law, Roam is not responsible for any third party services use of your exported information. The Services may also contain links to third party websites. Linked websites are not under Roam’s control, and Roam is not responsible for their content.
Third Party Software. The Services may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Services are provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
User Content
User Content Generally. Certain features of the Services may permit Users to submit, post, upload, store, share, send, publish, broadcast, display, or otherwise transmit (“Post”) content to the Services, including messages, comments, exercise routines, recipes, reviews, photos, video, images, folders, data, text, and any other types of authorship or other works (“User Content”). You retain any copyright and other proprietary rights that you may hold in the User Content that you Post to the Services. In the event that you delete your User Content from the Services, Roam may, but is not obligated to retain copies of your deleted User Content. Roam may use incidental copies of Your Content retained on Roam’s systems for internal business purposes.
Limited License Grant to Roam of Your Private Content. If you Post User Content to a private area of the Services (e.g., journal entries relating to medication, sleep, or pain), you grant Roam a worldwide, non-exclusive, royalty-free, fully paid right and license to host, store, transfer, display, perform, reproduce, and modify such User Content for the full period of time that you maintain your account on the Services, solely to enable your use of that User Content or to resolve any issues that may arise with the Services. Roam will treat any User Content you Post in a private area of the Services as confidential.
Limited License Grant to Roam of Your Public Content. If you Post User Content to a public area of the Services (e.g., Posting activities, number of steps, distance traveled, location, etc.), you grant Roam a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to use, copy, translate, host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and distribute your User Content, including your name and likeness, in whole or in part, in any media formats and through any media channels now known or hereafter developed. All of the rights you grant in these Terms are provided on a through-to-the-audience basis, meaning the owners or operators of external services will not have any separate liability to you or any other third party for User Content Posted or otherwise used on external services via the Services. You agree to pay all monies owing to any person resulting from Posting your User Content, including from Roam’s exercise of the license set forth in this Section.
Limited License Grant to Other Users of Your Public Content. By Posting User Content to or via the Services either to other Users of the Services or to a public area of the Services, you grant to other Users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Services. Deletion of User Content from a public area of the Services does not affect rights of Users in the copies of your User Content that other Users downloaded before deletion.
Specific Rules for Photographs and Images. If you Post a photograph or image to the Services that includes one or more persons, you hereby grant such persons and their administrators, guardians, heirs, and trustees, if any, an irrevocable, perpetual, royalty free, fully paid-up, worldwide license to reproduce, distribute, and publicly display that photograph for personal use and through any online platform or service, including the Services, Facebook, Instagram, and Twitter, but not to promote any third-party product, good, or service. The license contained in this Section does not permit the subject of any photo or their administrators, guardians, heirs, or trustees to sell that image or photograph, whether on a standalone basis or as embodied in any product.
You Must Have Rights to the Content You Post; User Content Representations and Warranties. You must not Post User Content if you are not the owner or are not fully authorized to grant rights in all of the elements of the User Content. Roam disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Services. By providing User Content via the Services, you affirm, represent, and warrant that:
you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Roam and users of the Services to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Roam, the Services, and these Terms;
your User Content, and the Posting or other use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Roam to violate any law or regulation or require Roam to obtain any further licenses from or pay any royalties, fees, compensation, or other amounts or provide any attribution to any third parties; and
your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users Post, and will not be in any way responsible or liable for User Content. Roam may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Services, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Roam with respect to User Content. If notified by a User or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. Roam does not permit infringing activities on the Services.
Monitoring Content. Roam does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Services by its Users. You acknowledge and agree that Roam reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Services for operational and other purposes. If at any time Roam chooses to monitor the content, Roam still assumes no responsibility or liability for content, or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy (defined below).
Communications
Text Messaging. Roam and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Services, as well as marketing messages. Text messages may be sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF ALL MESSAGES FROM ROAM, YOU CAN EMAIL HELLO@ASCEND.HEALTH OR TEXT THE WORD “STOP” TO 415-707-5022 FROM THE MOBILE DEVICE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICES. You may continue to receive text messages for a short period while we process your request, including messages confirming the receipt of your opt-out request.
Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when the app is not on. You can turn off notifications by visiting your mobile device’s “settings” page.
Email. We may send you emails concerning our products and Services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
Prohibited Conduct. BY USING THE SERVICES, YOU AGREE NOT TO:
use the Services for any illegal purpose or in violation of any local, state, national, or international law;
harass, threaten, demean, embarrass, or otherwise harm any other User(s) of the Services;
violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
access, search, or otherwise use any portion of the Services through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Roam;
interfere with security-related features of the Services, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Services except to the extent that the activity is expressly permitted by applicable law;
interfere with the operation of the Services or any User(s)’s enjoyment of the Services, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another User of the Services; (iii) collecting personal information about another User or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Services;
perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Services account without permission, or falsifying your age or date of birth;
sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
attempt to do any of the acts described in this Section 10 or assist or permit any person in engaging in any of the acts described in this Section 10.
Intellectual Property Right Protection
Respect of Third Party Rights. Roam respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks Users of the Services to do the same. Infringing activity will not be tolerated on or through the Services.
DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet Services providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Services, you may contact our Designated Agent at the following address:
Roam Robotics, Inc.
ATTN: Legal Department (IP Notification)
650 Alabama Street,
San Francisco, CA 94110
210-542-6717
Email: nikhil@roamrobotics.com
Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Services has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” to the Designated Agent identified above containing the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
a description of the copyrighted work or other intellectual property that you claim has been infringed;
a description of the material that you claim is infringing and where it is located on the Services;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the use of the materials on the Services of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Your Notification of Claimed Infringement may be shared by Roam with the User alleged to have infringed a right you own or control, and you consent to Roam making such disclosure. You should consult with your own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
Repeat Infringers. Roam’s policy is to: (a) remove or disable access to material that Roam believes in good faith, upon notice from an intellectual property rights owner or authorized agent, is infringing the intellectual property rights of a third party by being made available through the Services; and (b) remove any User Content Posted to the Services by “repeat infringers.” Roam considers a “repeat infringer” to be any User that has Posted User Content and for whom Roam has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content. Roam reserves the right, however, to suspend or terminate accounts of Users in our sole discretion.
Counter Notification. If you receive a notification from Roam that material made available by you on or through the Services has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Roam with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Roam’s Designated Agent through one of the methods identified in Section 11.2, and include substantially the following information:
your physical or electronic signature;
identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are residing outside of the United States, then for any judicial district in which Roam may be found, and that you will accept service of process from the person who provided notification under Section 11.2 above or an agent of that person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Roam in response to a Notification of Claimed Infringement, then Roam will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Roam will replace the removed User Content or cease disabling access to it in 10 business days, and Roam will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Roam’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material on Roam’s system or network.
False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of Roam relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” Roam reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
Modification of these Terms. We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing Users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Services. If you do not agree to the modified Terms, you should discontinue your use of the Services. Except as expressly permitted in this Section 12, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
Term, Termination and Modification of the Services
Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Services, and ending when terminated as described in Section 13.2.
Termination. If you violate any provision of these Terms, your authorization to access the Services and these Terms automatically terminate. In addition, Roam may, at its sole discretion, terminate these Terms or your account on the Services, or suspend or terminate your access to the Services, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer Services at cs@roamrobotics.com.
Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Services; (b) you will no longer be authorized to access your account or the Services; (c) you must pay Roam any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 4.4, 5, 8, 13.3, 15, 16, 17, 18 and 19 will survive.
Modification of the Services. Roam reserves the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services), temporarily or permanently, without notice to you. Roam will have no liability for any change to the Services or any suspension or termination of your access to or use of the Services.
Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Services, and you will defend and indemnify Roam and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Roam Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Services; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
Disclaimers; No Warranties by Roam
THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. ROAM DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. ROAM DOES NOT WARRANT THAT THE SERVICES OR ANY PORTION OF THE SERVICES, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICES, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND ROAM DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR ROAM ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE ROAM ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICES AND YOUR DEALING WITH ANY OTHER USER OF THE SERVICES. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICES AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICES) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Roam does not disclaim any warranty or other right that Roam is prohibited from disclaiming under applicable law.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE ROAM ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY ROAM ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTIONS 17.5 AND 17.6 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE ROAM ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICES OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO ROAM FOR ACCESS TO AND USE OF THE SERVICES IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM; AND (b) US$100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Dispute Resolution and Arbitration
Generally. In the interest of resolving disputes between you and Roam in the most expedient and cost effective manner, and except as described in Section 17.2 and 17.3, you and Roam agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ROAM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions. Despite the provisions of Section 17.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 17 within 30 days after the date that you agree to these Terms by sending a letter to Roam Robotics, Inc., Attention: Legal Department – Arbitration Opt-Out, 650 Alabama Street, San Francisco, CA 94110 that specifies: your full legal name, the email address associated with your account on the Services, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Roam receives your Opt-Out Notice, this Section 17 will be void and any action arising out of these Terms will be resolved as set forth in Section 17.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
Arbitrator. Any arbitration between you and Roam will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Roam. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Roam’s address for Notice is: Roam Robotics, Inc., 650 Alabama Street, San Francisco, CA 94110. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Roam may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Roam must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Roam in settlement of the dispute prior to the award, Roam will pay to you the higher of: (a) the amount awarded by the arbitrator; and (b) US$10,000.
Fees. If you commence arbitration in accordance with these Terms, Roam will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in the county and state of your residence, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your residence. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Roam for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No Class Actions. YOU AND ROAM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Roam agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications to this Arbitration Provision. If Roam makes any future change to this arbitration provision, other than a change to Roam’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Roam’s address for Notice of Arbitration, in which case your account with Roam will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
Enforceability. If Section 17.7 or the entirety of this Section 17 is found to be unenforceable, or if Roam receives an Opt-Out Notice from you, then the entirety of this Section 17 will be null and void and, in that case, exclusive jurisdiction and venue described in Section 17.2 will govern any action arising out of or related to these Terms.
Miscellaneous
General Terms. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Roam regarding your use of the Services. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to”. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Roam submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Services from our offices in California, and we make no representation that Materials included in the Services are appropriate or available for use in other locations.
Privacy Policy. Please read the Roam Privacy Policy www.ascend.health/privacy-policy (the “Privacy Policy”) carefully for information relating to our collection, use, storage, disclosure of your personal information. The Roam Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
Additional Terms. Your use of the Services is subject to all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that we may post on or link to from the Services (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
Consent to Electronic Communications. By using the Services, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
Contact Information. The Services are offered by Roam Robotics, Inc., located at 650 Alabama Street, San Francisco, CA 94110. You may contact us by sending correspondence to that address or by emailing us at cs@roamrobotics.com.
Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.
No Support. We are under no obligation to provide support for the Services. In instances where we may offer support, the support will be subject to published policies.
International Use. The Services are intended for visitors located within the United States. We make no representation that the Services are appropriate or available for use outside of the United States. Access to the Services from countries or territories or by individuals where such access is illegal is prohibited.
Notice Regarding Apple. This Section 19 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Roam only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Services or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Services. If the Services fail to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including: (a) product liability claims; (b) any claim that the Services fail to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Services and/or your possession and use of the Services infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Services. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.