PEAR THERAPEUTICS, INC.
TERMS OF SERVICE – reSET®
Last Updated: October 18, 2019
Certain Defined Terms.
As used in these terms and conditions (Terms of Service): Pear is Pear Therapeutics, Inc. and Pear’s commercialization partner, if any. Clinical Partners are hospitals, clinics, practices or other medical groups or healthcare systems that have contracted with Pear to permit use of the Pear Service by their respective Health Care Providers and Patients; Health Care Providers are physicians, counsellors, practitioners, patient advocates, coaches or other individuals who (as employees of or contractors to a Clinical Partner) provide healthcare or related services to Patients; Patient Service Partners are service providers that have contracted with Pear to facilitate the use of the Pear Service by their respective Health Care Providers and Patients; Patients are individual patients of the Clinical Partner who receive medical treatment or other healthcare services (Healthcare Services) from one or more Health Care Providers, or individuals who are properly authorized representatives of any such Patient; and Healthcare Services are the furnishing of medicine, medical or surgical treatment, clinical and therapeutic services, the dispensing of drugs or medical devices or any other clinical services provided for treatment or prevention of disease, medical condition or disorder. Full Access refers to a paid subscription to the products described in these Terms of Service; Introductory Access refers to a temporary free offering of limited functions of those products on a limited basis, which may be offered to certain users.
Pear owns and operates the website www.pear.md (the Site). Pear and its partners also develop, operate, distribute and sell reSET (reSET), which is an application for mobile devices. The Site and reSET (which together describe the digital prescription therapies designed to improve health outcomes), and the data collection, storage, analysis and reporting tools, functions and services, which are provided at the Site and/or via reSET, are collectively referred to as the Pear Service.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS OF SERVICE, OR IF YOU ARE NOT ELIGIBLE OR AUTHORIZED TO ENTER INTO THIS AGREEMENT, THEN DO NOT REGISTER FOR, DOWNLOAD, ACCESS OR USE THE PEAR SERVICE. DOWNLOADING RESET, COMPLETING OUR REGISTRATION PROCESS OR OTHERWISE ACCESSING OR USING ALL OR ANY PART OF THE PEAR SERVICE WILL CONSTITUTE ACCEPTANCE OF, AND CREATE A LEGALLY ENFORCEABLE CONTRACT UNDER WHICH YOU HEREBY AGREE TO BE BOUND BY, ALL OF THESE TERMS OF SERVICE, WITHOUT MODIFICATION.
IT IS THE SOLE RESPONSIBILITY OF YOUR HEALTH CARE PROVIDER TO DETERMINE THE APPROPRIATENESS OF YOUR STARTING AND OF YOUR CONTINUING USE OF THE PEAR SERVICE. HEALTH CARE PROVIDERS AND CLINICAL PARTNERS ARE RESPONSIBLE FOR OBTAINING ANY AND ALL NECESSARY CONSENTS FOR THE PROVISION OF ALL HEALTHCARE SERVICES, AND TO THE COLLECTION AND DISCLOSURE OF YOUR PERSONALLY IDENTIFIABLE INFORMATION AND PROTECTED HEALTH INFORMATION.
THE PEAR SERVICE AND THIS SITE ARE NOT MONITORED, SO DO NOT USE THE PEAR SERVICE OR SITE IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY. IN THE EVENT OF A MEDICAL EMERGENCY, PLEASE DIAL 911, THE NATIONAL SUICIDE PREVENTION LIFELINE AT 1-800-273-8255, OR THE NATIONAL POISON CONTROL HOTLINE AT 1-800-222-1222.
The Pear Service is intended by Pear to be made available only to individuals who: (a) are at least 18 years old; and (b) have been specifically identified for onboarding and use of the Pear Service by a Clinical Partner.
If you do not qualify for eligibility, then you are prohibited from downloading, accessing, using and registering for the Pear Service. Pear will not collect personally identifiable information from any person who is actually known to Pear to be under the age of 13. If Pear becomes aware that a person under 13 has provided personally identifiable information, Pear will take steps to remove such information and terminate that individual’s account, access and use of the Pear Service.
The Clinical Partner, not Pear, is responsible for establishing the criteria and determining which of its Health Care Providers and Patients will be (and continue to be) eligible to use the Pear Service. The Clinical Partner is also solely responsible for determining whether the Pear Service will be (and continues to be) clinically appropriate and safe for each Patient. Pear will comply with any valid instruction from a Clinical Partner to discontinue offering the Pear Service to any of its Health Care Providers or Patients. Pear will comply with any instruction from a Clinical Partner or Health Care Provider to change, modify, update or delete Patient information in the possession of Pear, consistent with the functionalities of the Pear Service. In addition, Pear may, at the instruction or in the sole discretion of the Clinical Partner, refuse to offer or continue offering the Pear Service to any individual.
Use of Introductory Access.
Pear may, in its sole discretion, offer an Introductory Access limited version to certain users. This limited access period shall last for no more than a period of seven (7) days from initiation of the access period and shall be terminated either at the end of the seven-day period or prior to authorization of the Full Access code, whichever event occurs first (Introductory Access Limited Period). If you wish to continue use of the Pear Service after the conclusion of the Introductory Access Limited Period, you must obtain the Full Access code via prescription from the Patient Service Center. By participating in this Introductory Access limited version, you agree to be bound by our Terms of Service throughout your use of the Pear Service, continuing on through any Full Access version you may access. The Introductory Access offer is not available for all users, and Pear reserves the right to modify or cancel this offer at any time.
Assignment of Benefits and Consent to Submit Insurance Claim in connection with reSET.
By using the Full Access version of the Pear Service, you assign and convey directly to Pear, as your designated authorized representative, all medical benefits and/or insurance reimbursement, if any, otherwise payable to you for the Pear Service. Except as may be otherwise agreed between you and Pear or you and the Patient Service Partner, you understand that you are financially responsible for all charges not covered by applicable insurance or benefit payments. You authorize Pear to release all medical information necessary to process your claims. Further, you authorize your plan administrator fiduciary, or insurer to release to Pear any and all health plan documents, summary benefit description, insurance policy, and/or settlement information upon written request from Pear or its agents in order to claim such medical benefits.
You intend by this assignment and designation of authorized representative to convey to Pear all of your rights to claim the medical benefits related to the Pear Service, including rights to any settlement, insurance or applicable legal or administrative remedies (including damages arising from ERISA breach of fiduciary duty claims). You give Pear the right: (1) to obtain information regarding the claim to the same extent as you; (2) to submit documents; (3) to make statements about facts or law; (4) to make any request including providing or receiving notice of appeal proceedings; and (5) to participate in any administrative and judicial actions and pursue claims or chose in action or right against any liable party, insurance company, employee benefit plan, health care benefit plan, or plan administrator.
Although it may be possible to visit the Site and/or download reSET without registering, you will not be able to access or use any valuable aspect of the Pear Service. To complete your application for registration, you need to be specifically identified by your Clinical Partner or Patient Service Partner, who will provide you with the necessary link to the mobile application, username and access code, and any other required credentials.
The Pear Service may be accessed: by visiting the Site directly; or by using reSET which is downloaded from Pear (or a Channel Partner), which then communicates with Pear’s web servers. Channel Partner means any distribution platform operator or other third party who is authorized to make reSET available for distribution pursuant to arrangements with Pear. Currently, the only Channel Partners are Apple Inc. (Apple) via the App Store and Google Inc. (Google) via Google Play. Business Partners refers to and includes all Clinical Partners and Channel Partners.
Regardless of how you access the Pear Service, to ensure the integrity of the Pear Service, you must complete an account registration process and provide Pear with current, complete and accurate information, as more specifically required by then current registration procedures and operational prompts. Your registration information will be provided to Pear by the Clinical Partner or Patient Service Partner; however, you will need to review and confirm accuracy of such information and maintain the complete or correct nature of your information.
For example, your Health Care Provider, Clinical Partner or Patient Service Partner may be required to provide the following information about you in order to establish your account and for you to be able to register for and use the Pear Service: name, address, telephone number, e-mail address, username, password, and certain preferences and permissions. You are required to work with your Health Care Provider to maintain accurate information on the Pear Service. Further, to ensure that it is always complete and accurate, your Health Care Provider may be required to update this information from time to time. You will be able to change your password if necessary.
Pear may refuse to accept your application to register for the Pear Service, in its sole discretion. Upon acceptance, Pear will activate the access credentials for your account. You alone are responsible for maintaining the confidentiality of your access credentials and other account information, and you will be solely liable for any and all activities under your account. You hereby agree to notify your Health Care Provider and Pear immediately of any unauthorized use or suspected unauthorized use of your user account or any other breach of security or suspected breach of security related to the Pear Service.
Introductory Access Account Term.
The Introductory Access limited version will allow you to create a temporary account (Temporary User Account), which will expire at the conclusion of the Introductory Access Limited Period. If this period concludes and you have not successfully onboarded to the Full Access version, your account will expire and you will lose access to the majority of your progress and information, including any lesson content provided in the Introductory Access limited version. Any and all data collected by Pear during the Introductory Access Limited Period will be stored in accordance with these Terms of Service, including but not limited to your personal account information, module completion progress, and medical data. If you subsequently choose to enroll in the Full Access version, your data will be preserved as the user account associated with the Full Access version (User Account). Regardless of the transition, upon initiating the Full Access version, you will be required to provide the requisite information for the User Account associated with the Full Access version in accordance with these Terms of Service.
Pear reserves the right, at its sole discretion, to update, modify or replace the Terms of Service (including any Policy), in whole or in part, at any time. Pear will use reasonable efforts to notify you of any material change in advance of the effective date of any change. Change notices may be communicated by postings at the Site, via reSET, e-mail or otherwise. In any case, you should periodically check the Policies and other Terms of Service for changes. Continued access or use of the Pear Service following any change to the Terms of Service means that you have accepted those changes. The Terms of Service may not otherwise be amended, as they apply to you, except by a written agreement executed by you and Pear.
Pear may modify, suspend or terminate the Pear Service (including without limitation, the Site or reSET), in whole or in part, at any time in its sole discretion.
The Pear Service is intended only as a supplement to Healthcare Services provided by your Health Care Provider, which can be used to assist you in managing your medical condition. Pear does not provide any stand-alone therapeutic, psychological or medical services to Patients. As a result of its intermediary role between Patients and Health Care Providers, Pear has no direct control over the appropriateness, accuracy, quality, timeliness, scope, price or risks of or associated with any provision of Healthcare Services, excluding for the avoidance of doubt, the Pear Service. Being enrolled in the Pear Service is not a substitute for the care you receive from your Health Care Provider; therefore, you should continue to receive usual care from your Health Care Provider. If you have any questions regarding treatment, medications, or diagnosis, you should contact your Health Care Provider. Your refusal to accept these Terms of Service or to participate in the Pear Service will not affect your ability to obtain services from your Health Care Provider.
The Pear Service is not intended for use in any emergency or urgent matter, nor is it monitored by any therapist, licensed medical professional or suicide prevention personnel. IN THE EVENT OF A MEDICAL EMERGENCY, PLEASE CALL 911 OR THE NATIONAL SUICIDE PREVENTION LIFELINE AT 1-800-273-8255 OR THE NATIONAL POISON CONTROL HOTLINE AT 1-800-222-1222. YOU ACKNOWLEDGE AND AGREE THAT PEAR IS NOT RESPONSIBLE FOR AND EXPRESSLY DISCLAIMS ALL LIABILITY FOR THE ACTIONS OR INACTIONS OF ANY USER.
You hereby agree to release Pear from any and all claims, demands, damages and liabilities, of any type and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the provision of Healthcare Services by your Clinical Partner or Health Care Provider.
Pear does not recommend or endorse any specific Clinical Partner, Health Care Provider or Healthcare Service.
Privacy and Security of Your Information.
Pear (or the Patient Service Partner) may need to contact you about your use of the Site and/or reSET. These communications are part of the Pear Service and you may not opt-out from receiving them.
Some of these communications may be offered via SMS text message (the Text Message Service). If you would like to take advantage of the Text Message Service, you will be required to opt-in. Neither Pear nor the Patient Services Partner will charge you for the Text Message Service. However, your mobile carrier may charge you message and data rates in accordance with your wireless customer agreement and you will be responsible for any such charges.
You can opt-out from receiving other communications from Pear by contacting email@example.com.
The Pear Service collects, stores, processes, analyzes and produces Analytics. Accordingly, whenever you interact with the Pear Service, a variety of technologies are employed to automatically or passively collect Analytics. Analytics means de-identified information relating to your browser or device type, the time and date you use the Pear Service, operating system, identification of Site or reSET page views, use of particular Service features, geographic location and other statistical information relating to your use of reSET or the Pear Service but which does not identify you. Pear uses Analytics to develop, improve, extend and test the Pear Service (and underlying technology platforms); to market and promote Pear and the Pear Service; and Pear discloses, distributes and transmits Analytics to Clinical Partners and Patient Service Partners for their use, which includes, but is not limited to, a review of the functionality and effectiveness of treatment, including this and other prescriptions provided by Health Care Providers.
User Generated Content.
The Pear Service currently provides functionality that permits Health Care Providers to cause or control the representation of information specific to a Patient’s condition directly to Patients, and vice-versa. At this time, the Pear Service does not permit Patients to upload or post content or other information they think may be of interest to other users, or that permit Patients to cause or control messaging with other Patients.
User Rules and Conduct.
If you elect to use the Pear Service or register for a User Account with Pear, you are responsible for maintaining the confidentiality of your account login information and the security of your mobile device and are fully responsible for all activities that occur under your account. You are solely responsible for all content and material that you provide to the Pear Service and your involvement with other Users. You hereby agree that Pear will not be held liable for any harm or loss incurred as the result of any such interactions, unless Pear has been found to be responsible for such harm or loss.
You hereby agree to immediately notify Pear of any unauthorized use or suspected unauthorized use of your Pear account or any other breach of security. Pear cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
PEAR, IN COOPERATION WITH AND AT THE INSTRUCTION OF THE CLINICAL PARTNER, RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO HAVE OUR SYSTEMS MONITOR ANY USER’S USE OF THE PEAR SERVICE, INCLUDING A USER’S REGISTRATION ATTEMPTS. ACCORDINGLY, PEAR ALSO RESERVES THE RIGHT TO (A) DISABLE ANY USER’S USE OF OR ACCESS TO THE PEAR SERVICE OR (B) TERMINATE ANY USER’S ACCOUNT, FOR ANY REASON AND WITHOUT ANY NOTICE. PEAR RESERVES THE RIGHT TO REFUSE ACCESS TO ANY USER, FOR ANY REASON AND WITHOUT ANY NOTICE.
The Site, reSET and all other aspects of the Pear Service are provided only for your personal, noncommercial use (the Authorized Use). Any unauthorized use of the Pear Service (including without limitation, accessing any aspect of the Pear Service for which you are not authorized, or any commercial use by you, such as, for example, reselling reSET or marketing Healthcare Services) is expressly prohibited. You alone are responsible for all acts or omissions that occur under your account, username and password.
As a condition of use, you hereby agree not to use the Pear Service for any purpose that is unlawful, or that is commercial in nature (such as, for example, collecting money, or advertising or promoting any product, service, pyramid scheme or other venture) or that is prohibited by the Terms of Service, or for any other purpose not reasonably intended by Pear. You hereby agree to abide by all applicable local, state, national and international laws, regulations and rules.
By way of example, and not limitation, you hereby agree not to (a) take any action or (b) provide any information using any communications service, survey, feedback, reSET or other aspect of the Pear Service, in any manner, that:
- is unlawful, deceptive, misleading, fraudulent, threatening, abusive, harassing, libelous, invasive of another’s privacy, tortious, obscene, pornographic, profane or which otherwise violates the Terms of Service;
- reveals any confidential, proprietary or other information that you are required to keep secret, including without limitation, non-public Personal Data (including PHI) about another individual;
- discovers or reveals any personal information about another individual, including another person’s Personal Data (including PII and PHI) or any other information that could be used to track, contact that person, unless such information has been provided by that person in any public communication or forum;
- impersonates any person or entity, including any Patient or any employee or representative of Pear or any Business Partner;
- infringes any patent, trademark, trade secret, copyright, right of publicity, privacy right or other right of any person or entity;
- imposes an unreasonable or disproportionately large load on Pear’s computing, storage or communications systems and networks, or attempts to gain unauthorized access to the Site, reSET or other aspect of the Pear Service (including the underlying technology platform), someone else’s information, accounts, computer systems or networks connected to the Pear Service, through password mining or otherwise;
- contains software viruses or any other computer codes, files or programs that are designed or intended to disrupt, damage, destroy, limit or interfere with the proper function of any software, hardware or network system or to damage or obtain unauthorized access to any system, data or other information of Pear or any Patient, Clinical Partner or other third party;
- constitutes unauthorized or unsolicited advertising, junk or bulk e-mail, spamming, or chain letters;
- registers for or creates user accounts by any automated means or under false or misleading pretenses, including by the use of a false, misleading or disguised e-mail address;
- harvests, scrapes or collects any information from the Pear Service;
- uses any script, bot or other automated means that only simulates compliance with the Terms of Service or other requirement applicable to the Pear Service; or
- disguises the source of any inputs.
Pear may, at its sole discretion, immediately suspend or terminate your access to the Pear Service should your conduct fail (or appear to fail) to strictly conform to any provision of this section.
Pear has no obligation to monitor the Pear Service or anyone’s use thereof. However, Pear reserves the right at any time and without notice to monitor, review, copy, retain or disclose any information as may reasonably be necessary to satisfy any applicable law, regulation, legal process or governmental request or investigation (including any inquiry from law enforcement).
Use Limitation on Rewards Cards for reSET.
You may receive monetary rewards in the form of gift cards as a component of the Pear Service.
You are not permitted to, and hereby agree not to, use gift rewards to purchase alcohol or other enabling substances that are counteractive to or interfere with management of your medical condition.
Disclosures to Third Parties.
Neither Pear nor reSET discloses your information (name, protected health information) to the gift card vendor. However, by providing the Patient with a gift card from a gift card vendor, the gift card vendor could potentially trace you to Pear and/or reSET. Additionally, you may be required to provide the gift card vendor with your name and contact information. This could permit the gift card vendor to trace you to Pear or reSET and may identify you as having applied for or received alcohol, drug abuse or mental health treatment.
Connections and Third Party Sites.
You may be able to use reSET, access the Pear Service and/or communicate with the Pear Service from, and you may be able to link or communicate from the Pear Service to, applications, devices, distribution platforms and websites owned and operated by Channel Partners and Clinical Partners. These other applications, devices, platforms and websites are not operated or controlled by Pear, and you hereby agree that Pear is not responsible for the availability, accuracy, legality, appropriateness or any other aspect of the content or function of such applications, devices, platforms and websites. Additional or different terms and conditions (including without limitation, privacy and security practices) apply when you access and use such other applications, devices, platforms and websites.
Advertising and Promotions.
At this time, the Pear Service does not include advertisements or promotions for or offers from Pear, Clinical Partners or other third parties.
The Pear Service (including the Site, reSET and underlying technology platforms), and all content, materials, data and other information created by or for Pear (or its affiliates or licensors) and made available via the Pear Service (collectively, Content), are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws, and Pear (and its applicable affiliates and licensors) shall own and retain all rights, title and interests (including all intellectual property and proprietary rights) therein and thereto. Unless and only to the extent expressly authorized by Pear, you hereby agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works of any part of the Pear Service or Content. However, unless the Pear Service states or implements a different restriction, you may download, reproduce or transmit a reasonable number of copies of Content for your Authorized Use; provided, that you retain all copyright and other proprietary notices contained therein. Your systematic retrieval of data or other Content from the Pear Service to create or compile, directly or indirectly, a collection, database or directory is strictly prohibited without Pear’s express prior written permission.
IMPORTANT: If you desire to access or use the Pear Service or Content for any purpose other than Authorized Use, then you must first secure permission from Pear or other owner of that Content. Reproducing, copying or distributing reSET, or any Content, or any design elements from the Site or reSET, for any other purpose is strictly prohibited without Pear’s express prior written permission. Attempting to access or use the Pear Service or Content for any purpose not expressly permitted in the Terms of Service is prohibited.
If you provide Pear with any idea, recommendation or other suggestion regarding possible corrections, changes, improvements or extensions related to the Pear Service or Content (collectively, Feedback), in any form or by any means (whether through the Pear Service, or by direct communication (e.g., e-mail) with Pear or any of its officers, directors, employees, representatives, agents or Business Partners), then you:
- represent and warrant that the Feedback does not include your own or any third party’s confidential or proprietary information;
- acknowledge and agree that Pear is under no obligation of confidentiality, express or implied, with respect to the Feedback;
- agree to grant and do hereby grant to Pear and its affiliates and licensees a non-exclusive, transferable (including the right to sublicense), perpetual, irrevocable, royalty-free, worldwide right and license to use, modify and make derivative works of the Feedback, in any manner, in any media and for any purpose, and to permit third parties to do the same.
Pear may immediately terminate your access to all or any part of the Pear Service (including without limitation, reSET) at any time, with or without cause (including without limitation, upon instruction from the applicable Clinical Partner or Patient Service Partner or Health Care Provider), with or without notice. If you elect to terminate your registration and account, you may do so at any time by contacting both your Health Care Provider through the appropriate channels, and Pear at firstname.lastname@example.org.
Upon any termination, all rights and obligations of the parties under the Terms of Service shall cease, and you shall immediately stop accessing and using the Pear Service and Content, except that:
(a) all obligations that accrued prior to the effective date of termination (including payment obligations, if any) and all remedies for breach of the Terms of Service shall survive, (b) Pear may retain and use Analytics in the manner described herein, and (c) the provisions of those sections of the Terms of Service that should reasonably be understood to continue in effect shall survive (including without limitations, the sections entitled Medical Disclaimers, Analytics, Proprietary Rights, Feedback License, No Warranties, Limitation of Liability and Indemnification). After termination, Pear has no obligation to maintain any information.
THE SITE, RESET, CONTENT AND ALL OTHER ASPECTS OF THE PEAR SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE.” THE SITE, RESET, CONTENT AND ALL OTHER ASPECTS OF THE PEAR SERVICE ARE PROVIDED WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF ACCURACY, INTEGRATION, TITLE, NON- INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
ALL REPRESENTATIONS AND WARRANTIES REGARDING ANY HEALTHCARE SERVICES SHALL BE, IF AT ALL, ONLY AS EXPRESSLY AGREED BETWEEN PATIENTS AND THE APPLICABLE HEALTH CARE PROVIDERS AND/OR CLINICAL PARTNERS.
Limitation of Liability.
You hereby agree that Pear (and its affiliates, licensors and Business Partners) shall not be responsible or liable for any Patient’s or Health Care Provider’s conduct or for any Patient’s or Health Care Provider’s violation of another person’s rights, including rights of publicity or privacy rights.
IN NO EVENT SHALL PEAR (OR ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS) BE LIABLE CONCERNING ANY SUBJECT MATTER RELATED TO THE SITE, RESET, CONTENT OR OTHER ASPECTS OF THE PEAR SERVICE, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGIES, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, GENERAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) DAMAGES, IN THE AGGREGATE, IN EXCESS OF AMOUNTS YOU PAID TO PEAR FOR THE PEAR SERVICE OR US $100.00, WHICHEVER IS GREATER, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY ABOVE, NOTHING IN THE TERMS OF SERVICES IS INTENDED TO LIMIT OR EXCLUDE LIABILITY OF ANY HEALTH CARE PROVIDER OR CLINICAL PARTNER OR PATIENT SERVICE PARTNER AS REGARDING ITS PERFORMANCE OF HEALTHCARE SERVICES.
APPLICABLE LAW IN YOUR STATE MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU HEREBY AGREE THAT PEAR’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR STATE.
You hereby agree to (a) defend Pear, its affiliates, licensors and Business Partners, and their officers, directors, employees, contractors and representatives (Indemnitees) against any action or suit by a third party that arises out of any transaction or other dealings between you and any other user or other Business Partner, your misuse of the Pear Service, or your breach of any of your representations, warranties or covenants under the Terms of Service and (b) indemnify the Indemnitees for liabilities (resulting from settlements or judgment awards), costs and expenses (including without limitation, reasonable attorneys’ fees) related to such claims.
Pear shall promptly notify you of any claim for which indemnification is sought, following actual knowledge of such claim, provided however that the failure to give such notice shall not relieve you of your obligations hereunder except to the extent that you are materially prejudiced by such failure. In the event that any third party claim is brought, you shall have the right and option to undertake and control the defense of such action with counsel of your choice, provided however that (i) Pear at its own expense may participate and appear on an equal footing with you in the defense of any such claims, (ii) Pear may undertake control of such defense in the event of your material failure to reasonably undertake and control the same; and (iii) the defense of any claim relating to the Intellectual Property Rights of Pear or its affiliates or licensors and any related counterclaims shall be solely controlled by Pear with counsel of its choice. You hereby agree that you shall not consent to judgment or concede or settle or compromise any claim without the prior written approval of Pear (which approval shall not be unreasonably withheld), unless such concession or settlement or compromise includes a full and unconditional release of Pear and any applicable related persons from all liabilities in respect of such claim(s).
The Pear Service originates in the United States, and is subject to United States export, federal and state privacy statutes and other laws and regulations. Pear makes no representation that the Pear Service is accessible, appropriate or legally available for use in locations outside the United States, and accessing and using the Pear Service is prohibited from territories where doing so would be illegal. If you access or use the Pear Service from other locations, then you do so at your own initiative and risk and are solely responsible for compliance with local laws.
Governing Law; Arbitration.
A printed version of the Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Service (including any Policy) to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
The Terms of Service shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflicts of law rules. In the event of any conflict between U.S. and foreign laws, regulations and rules, U.S. laws, regulations and rules shall govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Terms of Service.
Except that either party may seek an injunction or other equitable relief from any court of competent jurisdiction, all disputes between the parties arising out of or in relation to or in connection with the Terms of Service shall be settled by binding arbitration in accordance with the JAMS streamlined arbitration rules and procedures then in force, by one neutral arbitrator appointed in accordance with the rules. The arbitration shall take place in Boston, Massachusetts U.S.A. The proceedings shall be in English, all evidence shall be in English (or translated into English) and the governing law shall be as set forth herein. The arbitrator’s decision shall be in writing and shall comply with all terms and conditions in the applicable version of the Terms of Service. The decision and award rendered shall be final and binding on both parties. The parties acknowledge and agree that the Terms of Service and any award rendered pursuant hereto shall be governed by the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Judgment on the award may be entered in any court of competent jurisdiction.
Any arbitration under these Terms of Service will take place only on an individual basis; class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND PEAR ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION.
The Terms of Service (including all then current Policies) are the entire agreement between you and Pear with respect to access, use and operation of the Pear Service, and supersede all prior or contemporaneous communications, proposals and agreements (whether oral, written or electronic) between you and Pear with respect to the Pear Service.
If any provision of the Terms of Service is found to be unenforceable or invalid, that provision will be limited or severed to the minimum extent necessary so that Terms of Service will otherwise remain in full force and effect and enforceable.
Your rights and obligations under the Terms of Service are personal to you, and are not assignable, transferable or sub-licensable by you except with Pear’s prior written consent. Pear may subcontract, delegate, assign or otherwise transfer any or all of its rights, licenses and obligations hereunder without your consent, but with prior written notice. All waivers, consents and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment relationship is created as a result of the Pear Service or Terms of Service, and neither party has any authority of any kind to bind the other in any respect. All notices under these Terms of Service will be in writing, in English and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail or express courier, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail.
Copyright Compliance and Trademark Notices.
Trademarks. Pear and reSET are trademarks of Pear Therapeutics, Inc. The names and logos of companies, products or services mentioned on the Site and in reSET may be the trademarks or service marks of their respective owners and shall not be deemed to create any endorsement or association between Pear and such owners. All rights not expressly granted herein are reserved.
Copyright Compliance. It is Pear’s policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act (DMCA). In addition, Pear will promptly terminate without notice the accounts of Users that are determined by Pear to be Repeat Infringers. A Repeat Infringer is a User who has been notified by Pear of infringing activity violations more than twice.
If you are a copyright owner or an agent thereof, and you believe that any content hosted on the Pear Service infringes your copyrights, then you may submit a notification pursuant to the DMCA by providing Pear’s Designated Copyright Agent with the following information in writing:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Pear Service are covered by a single notification, a representative list of such works on the Pear Service;
- 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 Pear to locate the material;
- Information reasonably sufficient to permit Pear to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has 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 (for example, “I am under the good faith belief that the use of the copyrighted content that is identified herein is not authorized by the copyright owner, its agent, or the law.”); and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (for example, “I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is allegedly infringed by the aforementioned content.”).
Pear designated Copyright Agent to receive notifications of claimed infringement can be reached as follows:
Pear Therapeutics, Inc.
Attention: Pear designated Copyright Agent
200 State Street
Boston, MA 02109
Pear Copyright Agent Email: email@example.com
Only DMCA notices should go to the Pear Designated Copyright Agent. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Channel Partner Terms.
In the event that you obtain reSET from Apple or Google, then the following shall apply:
- Both you and Pear acknowledge that the agreements in the Terms of Service are between you and Pear only, and not with Apple and/or Google, and that Apple and Google are not responsible for reSET or Content;
- You will only use reSET in connection with an iOS or Android device that you own or control;
- You acknowledge and agree that Apple and Google have no obligation whatsoever to furnish any maintenance and support services with respect to reSET;
- In the event of any failure of reSET to conform to any applicable warranty, including those implied by law, you may notify Apple or Google (as the case may be) of such failure; upon notification, and their sole warranty obligation to you will be to refund to you the purchase price, if any, paid for reSET;
- You acknowledge and agree that Pear, and not Apple or Google, is responsible for addressing any claims you or any third party may have in relation to reSET;
- You acknowledge and agree that, in the event of any third party claim that reSET or your possession and use of reSET infringes that third party’s intellectual property rights, Pear, and not Apple or Google, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
- Both you and Pear acknowledge and agree that, in using reSET and Content, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
- Both you and Pear acknowledge and agree that Apple, Google and their subsidiaries are third party beneficiaries of these Terms of Service, and that upon your acceptance of the Terms of Service, Apple and Google (as applicable) will have the right (and will be deemed to have accepted the right) to enforce the Terms of Service against you as the third party beneficiary hereof.
If you have any questions regarding the Terms of Service or your dealings with the Pear Service, please contact Pear at:
Pear Therapeutics, Inc.
Attn: Terms of Service
200 State Street
Boston, MA 02109