Pear Health Labs, Inc.
Last Updated: April 24, 2023
THE SERVICE CONTAINS FITNESS AND HEALTH ORIENTED INFORMATION, PRODUCTS AND SERVICES. AS SUCH, EVERYONE, REGARDLESS OF THE SHAPE THEY ARE IN, SHOULD CONSULT A PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER BEFORE STARTING OR MODIFYING ANY EXERCISE PROGRAM. A PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER CAN HELP DETERMINE WHAT TYPE OF EXERCISE, THE FREQUENCY, AND THE INTENSITY THAT IS APPROPRIATE FOR EACH INDIVIDUAL. OF COURSE, ALWAYS USE COMMON SENSE WHEN EXERCISING. STOP EXERCISING IMMEDIATELY IF YOU EXPERIENCE SHORTNESS OF BREATH, DIZZINESS, DISCOMFORT OR PAIN.
IT IS YOUR SOLE RESPONSIBILITY TO USE THE SERVICE PRUDENTLY, TO VISUALLY VERIFY STREETS, ROADS, ROAD SIGNS AND DIRECTIONS, TO AT ALL TIMES REMAIN AWARE OF YOUR SURROUNDINGS, TO BE ATTENTIVE FOR POTENTIALLY UNFORESEEN OBSTACLES, TO NOT BECOME DISTRACTED WHILE USING THE SERVICE, TO ENSURE THAT THE VOLUME ON THE DEVICE USED WITH THE SERVICE IS NOT RAISED TO SUCH A LEVEL THAT IT BLOCKS OUT YOUR SURROUNDINGS OR DAMAGES YOUR HEARING.
- you use the Service at your sole risk, and you should consult with a physician or other health care professional before commencing use of the Service;
- the use of the Service may be subject to separate third-party terms of service and fees, including, without limitation, your mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
- we provide the App to you on an “as is” basis without warranties of any kind and Pear’s liability to you is limited;
1. General Terms and Conditions.
c. Jurisdictional Issues. The Service is controlled and operated by Pear from its offices in the State of California. Pear makes no representation that materials on the Service are appropriate, lawful, or available for use in any locations other than the United States of America. Those who choose to access or use the Service from locations outside the United States of America do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorized, or penalized is strictly prohibited.
d. Eligibility. The Service is not for persons under the age of 13 (or under 16 for individuals in the European Union) or for any users previously suspended or removed from the Service by Pear. IF YOU ARE UNDER 13 YEARS OF AGE (or under 16 in the EU), YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. By accessing or using the Service, you affirm that either you are at least 13 years of age or you have been authorized to use the Service by your parent or legal guardian who is at least 18 years of age.
2. The Service.
a. Description. The Service provides you with the opportunity to take workout classes (each, a “Class”) and receiving coaching from trainers solely for your personal use. Classes are available for a variety of skill levels, for a variety of activities, and for varying durations. Not all classes will be available in perpetuity and Classes are subject to change at any time with or without notice and without any liability to you. The information provided by the Service is not a substitute for professional medical advice or a medical exam. The Service offers exercise training routines and techniques (“Training Programs”) designed for healthy individuals. A physician or other qualified health care provider can help determine what type of exercise, the frequency, and the intensity that is appropriate for each individual. Prior to beginning or modifying any exercise program or Training Programs and/or if you suffer from any pre-existing medical conditions, use any medical devices (such as a pacemaker or hearing aid) or are pregnant, you should seek the advice of your physician or other qualified healthcare professional to determine if you are healthy enough to exercise, if the Training Program you selected is appropriate for you and to provide ongoing monitoring of your health. You agree that no information provided by the Service will be used to diagnose, treat, cure or prevent any medical condition without consulting a licensed physician. Always remain hydrated while exercising and do not rely on the Service to inform you when to drink. USE OF OR RELIANCE ON ANY OF THE TRAINING PROGRAMS, TECHNIQUES, IDEAS, AND SUGGESTIONS ACCESSED THROUGH THE SERVICE IS AT YOUR SOLE DISCRETION AND RISK. PEAR EXPRESSLY DISCLAIMS ANY LIABILITY IN CONNECTION WITH YOUR USE OF THE TRAINING PROGRAMS.
b. Mobile Services. The Service will be accessible via a mobile phone, tablet, or any other smart or wireless device (collectively, “Mobile Services”). Your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you.
a. Log-In Credentials. While you may always browse the public-facing portions of the Service without registering with us, in order to enjoy the full benefits of the Service, you must download the App and register an account with us (an “Account”).
b. Account Security. You are responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your credentials. You may not share the credentials for your Account with any third party. You agree to notify Pear immediately at firstname.lastname@example.org if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. Pear will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying Pear of such unauthorized use or loss of your credentials.
4. Subscriptions and Payment.
a. Initial Subscription Payment. To enjoy the full benefits of the Service, including Classes, you must purchase a subscription to the Service. You will be charged the stated subscription fee and any applicable taxes and service fees upon enrollment, unless your membership starts with a free trial, as detailed below.
b. Free Trials. If your Pear membership starts with a free trial period, the duration of which is specified during enrollment, WE WILL BILL YOUR DESIGNATED PAYMENT METHOD FOR THE SUBSCRIPTION FEE AT THE END OF THE FREE TRIAL PERIOD, unless you cancel prior to the end of the free trial period. By providing your payment details when enrolling in the free trial, you agree that Pear may charge the subscription fee to your designated payment method upon conclusion of the free trial period. Free trials are only available to first-time subscribers. Pear reserves the right, in its sole discretion, to determine your free trial eligibility.
c. Automatically Renewable Subscriptions. By purchasing a subscription to the Service, you agree that, upon expiration of the initial subscription term, your subscription will automatically renew for successive periods of the same duration as the initial subscription unless and until you cancel your subscription.
d. Cancellation. You may cancel your subscription to the Service at any time, after which Pear will not automatically renew your subscription.
e. Recurring Charges. YOU AUTHORIZE PEAR TO CHARGE YOUR ACCOUNT USING THE PAYMENT METHOD ON FILE FOR YOU TO PAY FOR ANY RENEWAL SUBSCRIPTION. You will be billed for the same subscription plan (or the most similar subscription plan, if your prior plan is no longer available) at the then-current applicable subscription price plus any applicable taxes. We will process payment for any renewal subscription using the same billing cycle as your current subscription. Additional terms and conditions may apply upon renewal, and subscription fees may change at any time, to the fullest extent permitted under applicable law.
f. Refund Policy. Any payment made through Pear’s website or through the Google Play Store is refundable on a case-by-case basis. To request a refund, click here or reach out to us at email@example.com. For payments made via Apple’s App Store, refunds are subject to Apple’s terms and conditions. Subscriptions that are cancelled during their free trial period (if any) will not incur any payment obligation. If a subscription is refunded, that subscription may be cancelled, and access to the service may be terminated immediately. Following any cancellation without a refund, however, you will continue to have access to the service through the end of your current billing period. At any time, and for any reason, we may provide a refund, discount, or other consideration to some or all of our members ("Credits"). The amount and form of such Credits, and the decision to provide them, are at our sole and absolute discretion.
g. Price Promotions. At the end of any promotion, Pear may, at its sole discretion, revert a member’s price per period to the current standard retail pricing for that membership type. Pear may also discontinue certain pricing promotions at any time at its sole discretion.
5. Intellectual Property Rights.
b. Content. Except for User Content, the content that Pear provides to end users on or through the Service, including without limitation, any Class (including the programming of such Class), text, graphics, photos, software, sound recordings (and the musical works embodied therein), and interactive features, may be protected by copyright or other intellectual property rights and owned by Pear or its third party licensors (collectively, the “Pear Content”). You may not copy, reproduce, upload, republish, broadcast, transmit, retransmit, Post, modify, create derivative works of, publicly perform, publicly display, use for commercial purpose or distribute any materials from the Service without prior express written permission of the owner of such material or as permitted by the Service’s intended functionalities. Your use of Pear Content must be in compliance with applicable law. Pear reserves all rights on the part of its licensors; users are not permitted to infringe the rights of the copyright owners of the sound recordings included on the Service or any musical works embodied therein (collectively “Music”). Classes are offered for individual use only by a single user per Account and users are not granted any commercial, sale, resale, reproduction, distribution or promotional use rights for the Music used with any Classes. The unauthorized reproduction or distribution of the Music is expressly prohibited any may violated applicable law and subject you to liability for copyright infringement.
c. Marks. Pear trademarks, service marks, and logos (the “Pear Trademarks”) used and displayed on the Service are Pear’s registered and unregistered trademarks or service marks. You may not use any Trademarks as part of a link to or from the Service without Pear’s prior express written consent. You may not remove any Trademarks identifying the ownership or origin of any Pear Content. All goodwill generated from the use of any Pear Trademark will inure solely to Pear’s benefit.
6. User Content.
a. Definition. “User Content” means any content that users upload, post or transmit (collectively, “Post”) to or through the Service including, without limitation, any text, comments and other works subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws, and excludes any and all Pear Content.
b. Screening User Content. Pear offers end users the ability to submit User Content to or transmit User Content through the Service. Pear does not pre-screen any User Content, but reserves the right to remove, disallow, block, or delete any User Content in its sole discretion. Pear does not guarantee the accuracy, integrity, appropriateness, availability, or quality of any User Content, and under no circumstances will Pear be liable in any way for any User Content.
e. Waiver of Rights to User Content. By Posting User Content to or through the Service, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain, or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to or through the Service.
7. Restrictions on Use of the Service.
8. External Sites. The Service may contain links to, or the ability to share information with, third party websites (“External Sites”). Pear does not endorse any External Sites or the content made available on such External Sites. Pear is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You agree that Pear will have no liability to you arising from your use, engagement, exposure to, or interaction with any External Sites.
9. Feedback. While we are continually working to develop and evaluate our own product ideas and features, we welcome your feedback, comments, and suggestions. If you choose to contribute by sending Pear any ideas (“Feedback”), then regardless of what your accompanying communication may say, the following terms will apply. Accordingly, by sending Feedback to Pear, you agree that: a. Pear has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason; b. Feedback is provided on a non-confidential basis, and Pear is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and c. You irrevocably grant Pear perpetual and unlimited permission to Use the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
10. Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements.
a. Respect of Third Party Rights. Pear respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our users to do the same.
b. Repeat Infringer Policy. Pear’s intellectual property policy is to (i) remove or disable access to material that Pear believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service; and (ii) remove any User Content uploaded to the Service by “repeat infringers.” Pear considers a “repeat infringer” to be any user that has uploaded User Content or Feedback to or through the Service and for whom Pear has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content or Feedback. Pear has discretion, however, to terminate the Account of any user after receipt of a single notification of claimed infringement or upon Pear’s own determination.
c. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service 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” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by Pear with the user alleged to have infringed a right you own or control, and you hereby consent to Pear making such disclosure. Your communication must include substantially the following: i. A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed; ii. Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works; iii. Identification of the specific 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; iv. Information reasonably sufficient to permit Pear to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted; v. A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and vi. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
d. Designated Agent Contact Information. Pear’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at:
Via Email: firstname.lastname@example.org
Via U.S. Mail: Aaptiv – 20371 Irvine Avenue, Suite 120, Newport Beach, CA 92660
e. Counter Notification. If you receive a notification from Pear that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Pear with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Pear’s Designated Agent through one of the methods identified in Section 10.d and include substantially the following information: i. A physical or electronic signature of the subscriber; ii. 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; iii. A statement under penalty of perjury that the subscriber has 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 iv. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, then for any judicial district in which Pear may be found, and that the subscriber will accept service of process from the person who provided notification under Section 10.d above or an agent of such person.
f. Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Pear in response to a Notification of Claimed Infringement, then Pear will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Pear will replace the removed User Content or Feedback or cease disabling access to it in 10 business days, and Pear will replace the removed User Content or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Pear’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 Pear’s system or network.
g. False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides 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 [Pear] 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. 17 U.S.C. § 512(f).
Pear reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
11. Dispute Resolution.
d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail (“Notice”). Pear’s address for Notice is: Aaptiv – 20371 Irvine Avenue, Suite 120, Newport Beach, CA 92660 Attn: CFO. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) 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 is received, you or Pear may commence an arbitration proceeding.
e. No Class Actions. YOU AND PEAR 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 Pear 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.
g. Enforceability. If Section 11.f above is found to be unenforceable or if the entirety of this Section 11 is found to be unenforceable, then the entirety of this Section 11 will be null and void.
13. Limitation of Liability and Disclaimer of Warranties.
a. PEAR, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “PEAR PARTIES”) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE. THE PEAR PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY, OR COMPLETENESS OF ANY INFORMATION CONVEYED TO ANY USER, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT YOU UPLOAD TO THE SERVICE.
b. THE PEAR PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THEN NO PEAR PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
c. THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, THE PEAR PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
d. IN NO EVENT WILL ANY PEAR PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PEAR PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PEAR’S LIABILITY, AND THE LIABILITY OF ANY OTHER PEAR PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF THE FEES YOU HAVE PAID US AND U.S. $100.
14. Third Party Disputes.
a. To the fullest extent permitted by law, any dispute you have with any third party arising out of your use of the service, including, by way of example and not limitation, any carrier, copyright owner, or other user, is directly between you and such third party, and you irrevocably release the Pear parties from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
16. Term and Termination.
19. Contact Us. You may contact us in connection with your use of the Service by mail at Aaptiv, 20371 Irvine Avenue, Suite 120, Newport Beach, California 92660, or by email at email@example.com.
20. Open Source Software. The App contains certain open source software. Each item of open source software is subject to its own applicable license terms.