Legal agreements

Nibble Health Terms of Use

Last Updated: November 1, 2022

Acceptance of Terms

These Terms of Use (the “Terms”) form a binding contract between you as a user (“you” or “your”) and Nibble Health Inc. (referred to as “Nibble Health,” “us,” “our,” or “we”). These Terms apply to your use of (a) our website located at https://www.nibblehealth.com and all of our other websites to which these Terms are posted (collectively the “Site”); (b) our mobile application(s) to which these Terms posted (collectively, the “App”); and (c) any services, content, communications, and product features relating to the Site and App (together with the Site and the App, the “Services”). By accessing and/or using the Services, you acknowledge that you have read, understood, and agree to be bound by these Terms.  If you do not agree with these Terms, you may not access or use the Services

NOTE: THESE TERMS CONTAIN AN ARBITRATION PROVISION WITH A CLASS ACTION WAIVER AND A WAIVER OF THE RIGHT TO A JURY. PLEASE REVIEW SECTION 24 BELOW BEFORE DOWNLOADING OR USING THE APP OR OUR SERVICES.

Modification of Terms

Nibble Health reserves the right to amend these Terms at any time and will notify you of any such changes by posting the revised Terms on its website, https://nibblehealth.com. If we make material changes to these Terms, we will provide you notice of such changes before they become effective.  You should check these Terms on https://nibblehealth.com periodically for changes. We will date the terms with the last day of revision. Your continued use of the Services after any change to these Terms constitutes your agreement to be bound by any such changes. Nibble Health may terminate, suspend, change, or restrict access to all or any part of the Services without notice or liability.

Privacy Policy

Please read the Nibble Health Privacy Policy carefully for information relating to our collection, use, and disclosure of your personal information. By accessing or using the Services you agree to Nibble Health’s Privacy Policy.

Please note that we share your information with our financial institution service providers (“Banking Providers”) to enable them to provide some of the Services. Please also note that we may collect information regarding any device through which you access the App (an “Authorized Device”), such as IP address, mobile network provider (“Mobile Provider”), mobile carrier, mobile browser type, timestamp, time zone, information about the speed, bearing, orientation, and altitude of an Authorized Device, or other device-identifying information. We may also collect precise geolocation data from or about your Authorized Device, which may be expressed by latitude-longitude coordinates obtained through GPS tools, WiFi data, cell tower triangulation or other techniques. Our use of such information is described in our Privacy Policy.

Overview of Services

Nibble Health partners with employers to enable employees to pay for healthcare in installments over time. In particular, eligible employees may apply for and obtain a bank account (“Bank Account”) and associated card (“Card”) issued by a Banking Provider. Use of such Bank Account will be subject to an Account Agreement and the use of the Card associated with such Bank Account will be subject to a Cardholder Agreement between you and Banking Provider. To help the government fight the funding of terrorism and money laundering activities, we may also obtain, verify, and record information that identifies anyone who opens a Banking Provider Bank Account.

To determine whether an expense is eligible for financing, please review the Help Center and FAQ on the Nibble Health App. Eligible expenses made with Cards may be repaid to Nibble Health over time.  To access this functionality, you may be required to enter into additional agreements with Nibble Health. 

Please note that Banking Provider only provides Bank Accounts, Cards and associated banking services; Banking Provider does not provide or facilitate the Services.  The Services are provided solely by Nibble Health.

Fees

There are currently no fees charged for using the Services.  Please review your agreements with your Banking Provider and loan agreement(s) with Nibble Health for additional information regarding fees associated with those services. We reserve the right to charge for, or change the fees associated with, the use of the Services at any time subject to reasonable notice and these Terms.

Use of the Services

You may not use the Services in any manner that may impair, overburden, damage, disable or otherwise compromise: (a) Nibble Health’s Services; (b) any other party’s use and enjoyment of the Services; or (c) the services and products of any third parties including, without limitation, any Authorized Device. You agree to comply with all applicable laws and regulations governing the downloading, installation and/or use of the App, including, without limitation, any usage rules set forth in the online application store terms of service.

You are responsible at your sole cost for all equipment, data and Internet access necessary to use and access the App and Services. You acknowledge that your agreement with your Mobile Provider will apply to your use of the App. You acknowledge that you may be charged by your Mobile Provider for data services while using certain features of the App or any other third-party charges as may arise and you accept sole responsibility for such charges. If you are not the bill payer for the Authorized Device being used to access the App, you will be assumed to have received permission from the bill payer for using the App. You must also ensure that your use of the App is not in violation of your Mobile Provider agreement or any wireless data service agreement.

Application License

If you access the Services via the App, then we grant you a revocable, non-exclusive, non-transferable, limited right to install and use the App, on wireless electronic devices owned or controlled by you, and to access and use the App, on such devices strictly in accordance with the terms and conditions of this App license contained in these Terms. The following terms apply when you use an App obtained from either the Apple Store or Google Play (each an “App Distributor”) to access the Services: (1) the license granted to you for our App is limited to a non-transferable license to use the App on a device that utilizes the Apple iOS or Android operating systems, as applicable, and in accordance with the usage rules set forth in the applicable App Distributor’s terms of service; (2) we are responsible for providing any maintenance and support services with respect to the App as specified in the terms and conditions of this App license contained in these Terms or as otherwise required under applicable law, and you acknowledge that each App Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the App; (3) in the event of any failure of the App to conform to any applicable warranty, you may notify the applicable App Distributor; (4) 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; (5) you must comply with applicable Third party terms of agreement when using the App, e.g., if you have a VoIP application, then you must not be in violation of their wireless data service agreement when using the App; and (6) you acknowledge and agree that the App Distributors are Third party beneficiaries of the terms and conditions in this App license contained in these Terms, and that each App Distributor will have the right (and will be deemed to have accepted the right) to enforce the terms and conditions in this App license contained in these Terms against you as a Third party beneficiary thereof. Apple and Google are not a sponsor of any content or Services.

Updates to Application

From time to time, Nibble Health may automatically check the version of the App installed on the Authorized Device and, if applicable, provide updates for the App (“Updates”). Updates may contain, without limitation, bug fixes, patches, enhanced functionality, plug-ins and new versions of the App. By installing the App, you authorize the automatic download and installation of Updates and agree to download and install Updates manually if necessary. Your use of the App and Updates will be governed by these Terms (as amended by any terms and conditions that may be provided with Updates). Nibble Health reserves the right to temporarily disable or permanently discontinue any and all functionality of the App at any time without notice and with no liability to you.

Eligibility

By agreeing to these Terms you represent and warrant to us: (a) that you are at least eighteen (18) years old and the age of majority in your jurisdiction; (b) that you are currently employed by an employer with whom Nibble Health has partnered to provide the Services (each, an “Eligible Employer”); (c) that you have not previously been suspended, removed or deactivated from the Services; (d) that you are a legal resident of the United States; (e)  that you are not named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations; and (e) that your use of the Services is in compliance with any and all applicable laws and regulations.

Nibble Health Accounts

a.  Account Creation. In order to use the Services, you must create an account (an “Account”) with Nibble Health. You agree that the information you provide to Nibble Health on registration and at all other times, will be true, accurate, current, and complete, and that you will keep this information accurate and up-to-date at all times.  We also request that you create a password for your Account.  You agree not to disclose your password to anyone else, and you also agree you will be solely responsible for any activities or actions take under your Account, whether or not authorized by you.  Please notify us immediately of any unauthorized use of your password or Account.  You are responsible for all activities on your Account whether authorized or not. We are not liable for any loss or damage from your failure to comply with these requirements.

b.  Identity Verification. You hereby authorize Nibble Health, directly or through third parties, to make any inquiries we consider necessary to validate your identity and/or authenticate your identity and Account information. This may include asking you for further information and/or documentation about your identity, or requiring you to take steps to confirm ownership of your email address, mobile telephone number or financial instruments, and verifying your information against third party databases or through other sources.

c. Limitations on Accounts. You may not create more than one (1) Nibble Health Account. Each Authorized Device may not be associated with more than two (2) Accounts. Users who attempt to associate multiple Authorized Devices with a single Nibble Health Account may be deemed to have violated these Terms to the extent they are deemed by Nibble Health to have abused the Services, and may be subject to Account suspension or closure.

SMS Messages and Telephone Calls

By providing us with a telephone number for an Authorized Device and opting into transactional messages, you agree to receive autodialed and pre-recorded, non-marketing, service-related telephone calls and SMS messages (including text messages) from or on behalf of Nibble Health at the phone number provided. Nibble Health will send you news and updates, including onboarding instructions and recommendations to help make the most of your Nibble Health Account and access select Nibble Health features. Message frequency varies.

By providing us with a telephone number for an Authorized Device and opting into promotional messages, you consent to receive autodialed and pre-recorded telephone calls and text messages from or on behalf of Nibble Health at the number provided for marketing or promotional purposes. Message frequency varies. You certify, warrant and represent that the telephone number you have provided to us is your contact number and not someone else’s. You represent that you are permitted to receive telephone calls and SMS messages at the telephone number you have provided to us. You agree to promptly alert us whenever you stop using a telephone number.

You understand that consent to marketing-related messages is not a condition of using the Services. To stop receiving marketing-related messages, you may reply STOP to any marketing-related text message and telephone call you receive from Nibble Health. After you text “STOP” to us, we will send you a text to confirm that you have been unsubscribed. After this, you will no longer receive telephone calls or text messages from us. If you are experiencing issues with the messaging program you can get help at help@nibblehealth.com. Standard message and data rates may apply to both non-marketing and marketing-related messages. Carriers are not liable for delayed or undelivered messages.

Notices

We may provide you with notices in any of the following methods: (a) via the Services, including by a banner or pop-up within the applicable Site, Account or elsewhere; (b) by e-mail, sent to the e-mail address you provided us; and/or (c) through any other means, including any phone number or physical address you provided us. Such notice to you will be deemed received and effective upon receipt or twenty-four (24) hours after it was published or sent through any of the foregoing methods, unless otherwise indicated in the notice.

By agreeing to these Terms, you agree to receive push notifications from us. You can opt out of receiving push notifications through your Authorized Device settings. Please note that opting out of receiving push notifications may impact your use of the Services.

Third Party Services

The Services may contain links to other websites, databases, networks, servers, information, software, programs, systems, directories, applications, products or services, including parties with which we partner (collectively “Third-Party Services”) for your convenience. We are not and cannot be responsible for the content, operation or use of the Third-Party Services. Your use of Third-Party Services is subject to the privacy practices and terms of use established for the Third-Party Services, and we disclaim all liability for such use. You are solely responsible for reviewing any terms of use, privacy policy or other terms governing your use of the Third-Party Services, which you use at your own risk. Certain of our Services are provided by our Banking Providers. You may be required to agree to agreements and terms and conditions of those Banking Providers as a condition to using those Services.

User Content

Nibble Health does not claim ownership of the content that you provide, upload, submit or send through the Services or to Nibble Health. You understand and agree that all materials transmitted on or through the Services are the sole responsibility of the sender, not Nibble Health, and that you are responsible for all material you provide, upload, submit or send to or through the Services. When you provide content to Nibble Health or through the Services, you grant Nibble Health (and parties that we work with) a non-exclusive, irrevocable, royalty-free, transferable, and worldwide license to use your content and associated intellectual property and publicity rights in any manner and for any purpose, including to improve the Services and create other products and services. Nibble Health will not compensate you for any of your content. You acknowledge that Nibble Health’s use of your content will not infringe any intellectual property or publicity rights. Further, you acknowledge and warrant that you own or otherwise control all of the rights of the content you provide, and you agree to waive your moral rights and promise not to assert such rights against Nibble Health.

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 Nibble Health 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.

Prohibited Conduct

BY USING THE SERVICES YOU AGREE NOT TO:
a.  breach these Terms or any other agreement between you and Nibble Health or violate any Nibble Health policy;
b. access or use any part of the Services for any non-personal, commercial purpose;
c.  access or use the Services for any fraudulent, illegal or immoral purpose or violate (or attempt to violate) any law, statute, ordinance, or regulation;
d.  attempt to gain unauthorized access to any other user’s Account;
e.  modify or attempt to modify or in any way tamper with, circumvent, disable, damage or otherwise interfere with the Services;
f.  access or use the Services in a way that may infringe upon the intellectual property or other rights of Nibble Health or any third party, including, without limitation, trademark, copyright, privacy, or publicity rights;
g.  provide false, inaccurate or misleading information;
h.  reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Services or any part thereof (including any App), except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
i.  modify, adapt, translate or create derivative works based upon the Services or any part thereof, except and only to the extent the foregoing restriction is expressly prohibited by applicable law; or
j.  copy, distribute, transfer, sell or license all or part of the Services;
k.  transfer the App to, or use the App on, a device other than the Authorized Device;
l.  intentionally interfere with or damage operation of the Services or any user’s enjoyment of the Services, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code.
m.  take any action to circumvent, compromise or defeat any security measures implemented in the Services;
n.  use the Services to access, copy, transfer, retransmit or transcode information, Nibble Health logos, marks, names or designs or any other content in violation of any law or third party rights; or
o.  remove, obscure, or alter Nibble Health’s (or any third party’s) copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed through the Services.
We reserve the right, but do not have the obligation, at our sole discretion to terminate any user’s access to the App and Services if they violate these prohibitions or any other provision of these Terms.

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 below.

Termination

a. Termination by Nibble Health. Without limiting other remedies, Nibble Health may immediately terminate or suspend your access to and/or use of the Services and remove, subject to any regulatory retention requirements, any material from the Services or our servers, in the event that you breach these Terms or for any other reason or no reason at all. Notwithstanding the foregoing, we also reserve the right to terminate, limit or suspend your access to or use of the Services at any time and for any reason or no reason, including: (i) where we determine in our sole discretion that such action is reasonable in order to comply with legal requirements or to protect the rights or interests of Nibble Health or any third party; or (ii) in connection with any general discontinuation of the Services. We also reserve the right to modify the Services at any time without notice to you. We will have no liability whatsoever on account of any change to the Services or any suspension or revocation of your access to or use of the Services.
b.  Termination by You. You may terminate acceptance of these Terms at any time by permanently deleting the App in its entirety from the Authorized Device, whereupon (and without notice from Nibble Health) any rights granted to you herein will automatically terminate. If you fail to comply with any provision of these Terms, any rights granted to you herein will automatically terminate. In the event of such termination, you must immediately delete the App from the Authorized Device.

Effect of Termination

Upon termination of these Terms: you understand and acknowledge that we will have no further obligation to provide or allow access to your Account or the Services. Upon termination, all licenses and other rights granted to you by these Terms will immediately cease. Nibble Health is not liable to you or any third party for termination of the Services or termination of your use of the Services. UPON ANY TERMINATION OR SUSPENSION, ANY INFORMATION THAT YOU HAVE SUBMITTED, UPLOADED OR OTHERWISE MADE AVAILABLE ON, TO OR THROUGH THE SERVICES OR THAT WHICH IS RELATED TO YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY YOU. Termination of these Terms shall not relieve either party of liability for any act, omission, occurrence or liability occurring prior to the termination of these Terms. Furthermore, any termination of these Terms will not relieve you of your obligations to pay any monies due or owing to Nibble Health at the time of termination and will not relieve any obligations established prior to termination. 

Except as may be required by applicable law or as provided in our Privacy Policy, Nibble Health will have no obligation to store or maintain (or delete or destroy) any information stored in our database or to forward any information to you or any third party.

Intellectual Property Rights

You hereby acknowledge that Nibble Health owns all rights, title and interest in and to the Services and to any and all proprietary and confidential information contained therein (“Nibble Health Information”). The Services and Nibble Health Information, including visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, look-and-feel, and all other elements of the Services, are protected by applicable intellectual property and other laws, including patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.

Indemnification

To the fullest extent permitted by law, you agree to indemnify, defend and hold Nibble Health and all of its successors, parents, subsidiaries, affiliates, officers, directors, stockholders, investors, employees, agents, representatives and attorneys and their respective heirs, successors and assigns (collectively, the “Indemnified Parties”), harmless from and against any and all claims, liabilities, losses, damages, costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred by the Indemnified Parties arising out of or relating to (a) your access to, use of or alleged use of, or inability to use the Services; (b) your violation of these Terms, the Services, or any representation, warranty, or agreement referenced herein, or any applicable law or regulation; (c) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; (d) your failure to provide and maintain true, accurate, current and complete Account information; or (e) any disputes or issues 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, and in such case, you agree to cooperate with our defense of such claim. You shall cooperate as fully as reasonably required in the defense of any such claim. You agree not to settle any matter without the prior written consent of Nibble Health.

Disclaimers; No Warranties

THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. EXCEPT AS REQUIRED BY LAW, NIBBLE HEALTH DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS REGARDING THE SERVICES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, ACCURACY, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. SPECIFICALLY, BUT WITHOUT LIMITATION, NIBBLE HEALTH DOES NOT WARRANT THAT: (A) THE INFORMATION PROVIDED IN, OR THAT MAY BE OBTAINED FROM USE OF, THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE CORRECT, ACCURATE, UP-TO-DATE, OR RELIABLE; (B) THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE (INCLUDING ANY NETWORKS AND SERVERS USED TO PROVIDE ANY OF THE SERVICES); (C) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED BY OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS; OR (D) ANY ERRORS IN THE TECHNOLOGY WILL BE CORRECTED. YOU ASSUME ALL RISK FOR ALL DAMAGES, INCLUDING DAMAGE TO YOUR COMPUTER SYSTEM, AUTHORIZED DEVICE OR LOSS OF DATA THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICES. YOU HEREBY ACKNOWLEDGE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. NO ADVICE OR INFORMATION PROVIDED BY NIBBLE HEALTH SHALL CONSTITUTE ANY WARRANTY WITH RESPECT TO USER USE OF THE SERVICES. NIBBLE HEALTH DOES NOT GUARANTEE OR ASSUME ANY RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY ANY THIRD PARTY RELATING TO NIBBLE HEALTH. 

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO USER. SOME JUISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO USER. 

IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE INDEMNIFIED PARTIES OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OPERATING OR DELIVERING THE SERVICES  BE LIABLE FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OR SUBSTITUTE SERVICES, OR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE INDEMNIFIED PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE WHERE SUCH DAMAGES RESULT FROM: (A) YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SERVICES (INCLUDING ANY NETWORKS AND SERVERS USED TO PROVIDE ANY OF THE SERVICES), (B) YOUR VIOLATION OF THESE TERMS OR ANY REPRESENTATION, WARRANTY, OR AGREEMENTS REFERENCED HEREIN, OR ANY APPLICABLE LAW OR REGULATION; (C) YOUR VIOLATION OF ANY THIRD PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY INTELLECTUAL PROPERTY RIGHT, PUBLICITY, CONFIDENTIALITY, PROPERTY OR PRIVACY RIGHT; OR (D) ANY DISPUTES OR ISSUES BETWEEN YOU AND ANY THIRD PARTY. YOU SPECIFICALLY ACKNOWLEDGE THAT THE INDEMNIFIED PARTIES ARE NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, THE INDEMNIFIED PARTIES WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED ONTO OR DOWNLOADED FROM THE SITE OR THROUGH THE SERVICE.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE INDEMNIFIED PARTIES’ LIABILITY TO YOU FOR ANY DAMANGES ARISING FROM OR RELATED TO THE SERVICES, YOUR USE OF THE APP, OR THESE TERMS (FOR ANY CAUSE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM YOUR FAILURE TO PROVIDE NIBBLE HEALTH WITH ACCURATE INFORMATION OR TO CORRECT INACCURATE INFORMATION AND REGARDLESS OF THE FORM OF ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF ONE HUNDRED US DOLLARS (U.S. $100). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.

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 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

DISPUTE RESOLUTION BY BINDING ARBITRATION

PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.

YOU ACKNOLWEDGE THAT YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN SECTION 24(b) BELOW.
a. Election to Arbitrate. You and Nibble Health agree that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this Section 24 (the “Arbitration Provision”), unless you opt out as provided in Section 24(b) below or your Claim is subject to an explicit exception to in this Arbitration Provision. As used in this Arbitration Provision, “Claim” shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and us on the other hand, relating to or arising out of these Terms, and/or the activities or relationships that involve, lead to, or result from these Terms, including the validity or enforceability of this Arbitration Provision, any part thereof, or the Terms. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise, except that both you and Nibble Health retain the right: (a) to bring an individual action in small claims court (a “Small Claims Action”); or (b) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, the misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (an “IP Protection Action”). Claims include matters arising as initial claims, counter‐claims, cross-claims, third-party claims, or otherwise. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable. This Arbitration Provision shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in these Terms.
b. Opt-Out of Arbitration Provision. You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice to help@nibblehealth.com, within thirty (30) days of the date of your electronic acceptance of the terms of these Terms (such notice, an “Arbitration Opt-Out Notice”). The opt out notice must clearly state that you are rejecting arbitration; identify the Terms to which it applies by date; provide your name, address, and social security number; and be signed by you. If you don’t provide Nibble Health with an Arbitration Opt-Out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Claim except with regard to a Small Claims Action or an IP Protection Action, as expressly set forth above.
c.  Judicial Forum for Disputes. In the event that (i) you or we bring an IP Protection Action; (ii) you timely provide Nibble Health with an Arbitration Opt-out Notice; or (iii) this “Dispute Resolution by Binding Arbitration” section is found not to apply, the exclusive jurisdiction and venue of any Claim will be the state and federal courts located in New York, New York and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You and we both further agree to waive our right to a jury trial.
d.  Informal Dispute Resolution. If a Claim arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that before filing any claim in arbitration, you will try to resolve the Claim informally by contacting help@nibblehealth.com. Similarly, Nibble Health will undertake reasonable efforts to contact you (if we have contact information for you) to resolve any claim we may possess informally before taking any formal action. If a Claim is not resolved within 30 days after the email noting the Claim is sent, you or Nibble Health may initiate an arbitration proceeding as described below.
e.  WAIVER OF RIGHT TO LITIGATE. Unless you timely provide Nibble Health with an Arbitration Opt-out Notice, YOU ACKNOWLEDGE THAT YOU HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.
f. NO CLASS ACTIONS. You and Nibble Health agree that the arbitration of any Claim shall proceed on an individual basis, and neither you nor Nibble Health may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a claim to resolve any Claim against Nibble Health will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR NIBBLE HEALTH SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE CLAIMS BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE OR LITIGATE ANY CLAIM IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY CLAIM (AS DEFINED ABOVE), ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. Any challenge to the validity of this Section 24(f) shall be determined exclusively by the arbitrator.
g. Arbitration Procedures. The party initiating arbitration shall do so with the American Arbitration Association (“AAA”). The AAA will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes then in effect (the “AAA Rules”). If you have any questions concerning AAA or would like to obtain a copy of the AAA Rules, you may call (800) 778-7879 or visit their web site at: www.adr.org. In the case of a conflict between the AAA Rules and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the AAA Rules apply. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. The single arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within fourteen (14) days of delivery of the Demand for Arbitration, then AAA will appoint the arbitrator in accordance with the AAA Rules. The arbitrator(s) shall be authorized to award any remedies, including injunctive relief, that would be available to you in an individual lawsuit and that are not waivable under applicable law.  

Notwithstanding any language to the contrary in this Section 24(g), if a party seeks injunctive relief that would significantly impact other Nibble Health users as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall be a retired judge or an attorney licensed to practice law and with experience arbitrating or mediating disputes. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section shall make that determination.  If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential.
h. Arbitration Location. Unless you and Nibble Health otherwise agree, the arbitration will be conducted in the county where you reside, or if you so elect, all proceedings can be conducted via videoconference, telephonically or via other remote electronic means. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Nibble Health submit to the arbitrator, unless the arbitrator determines that a videoconference, telephonic or in-person hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to such rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
i. Arbitration Fees. If we elect arbitration, we shall pay all the administrator's filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator's rules. However, if the value of the relief sought is $10,000 or less, at your request, we will pay all filing, administration, and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). In such circumstances, fees will be determined in accordance with the administrator rules. Each party shall bear the expense of its own attorneys' fees, except as otherwise provided by law.
j. Arbitrator's Decision. The arbitrator will render an award within the time frame specified in the administrator rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof.
k. Survival and Severability of Arbitration Provision. This Arbitration Provision shall survive the termination of these Terms. With the exception of Section 24(f) “No Class Actions,” if a court decides that any part of this Arbitration Provision is invalid or unenforceable, then the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. In the event that a court finds that all or any portion of Section 24(f) “No Class Actions,” to be invalid or unenforceable, then the entirety of this Arbitration Provision shall be deemed void and any remaining Claim must be litigated in court pursuant to Section 24(c).
l. Changes. Notwithstanding the provisions of the “Modification of Terms” section above, if Nibble Health changes this “Dispute Resolution by Binding Arbitration” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to help@nibblehealth.com) within 30 days of the date such change became effective, as indicated in the “Last revised” date above or in the date of Nibble Health’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Claim between you and Nibble Health in accordance with the provisions of this “Dispute Resolution by Binding Arbitration” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

Governing Law

You agree that, except to the extent inconsistent with or preempted by federal law and except as otherwise stated in these Terms, the laws of the State of New York, without regard to principles of conflict of laws, will govern these Terms and any Claim that has arisen or may arise between you and Nibble Health.

General

These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference herein, constitute the entire and exclusive understanding and agreement between you and Nibble Health regarding your use of and access to the Services, and except as expressly permitted above may only be amended by a written agreement signed by authorized representatives of the parties. You may not assign or transfer these Terms or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms or any of our rights or obligations under these Terms at any time without notice. The failure to require performance of any provision shall not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself. Use of paragraph headers in these Terms is for convenience only and shall not have any impact on the interpretation of particular provisions. Except as otherwise provided in the Arbitration Provision, in the event that any part of these Terms is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect.

Survival

In the event of termination of these Terms or the Services, the Terms that by their nature are continuing shall survive such termination, including but not limited to Intellectual Property Rights (Section 20), Indemnification (Section 21), Disclaimers; No Warranties (Section 22), Limitation of Liability (Section 23), Dispute Resolution by Binding Arbitration (Section 24), Governing Law (Section 25), and General (Section 26).

Contact Information

If you have any questions regarding Nibble Health, the Services, or these Terms please email us at help@nibblehealth.com.