Legal
Last Updated: June 2nd, 2025
Welcome, and thank you for your interest in Fruit Street Health, Public Benefit Corp (“Fruit Street,” “we,” or “us”) and our website at www.fruitstreet.com, along with our related websites, hosted applications, mobile or other downloadable applications, and other services provided by us (including the Program (as defined below)) (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Fruit Street regarding your access to or use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING FRUIT STREET’S PRIVACY POLICY [https://www.fruitstreet.com/privacy-policy] (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO ACCESS OR USE THE SERVICE. YOUR ACCESS TO OR USE OF THE SERVICE, AND FRUIT STREET’S PROVISION OF THEbSERVICE TO YOU, CONSTITUTES AN AGREEMENT BY FRUIT STREET AND BY YOU TO BE BOUND BY THESE TERMS.
ARBITRATION NOTICE.
Except for certain kinds of disputes described in Section 17 (Dispute Resolution and Arbitration), you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND FRUIT STREET ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
1. Overview.
1.1 Fruit Street is recognized by the Centers for Disease Control and Prevention (“CDC”) as a diabetes prevention program and is also a “Medicare Diabetes
Prevention Program” supplier. As used in these Terms, the CDC-recognized diabetes prevention program offered by Fruit Street is the “Program”. Fruit Street delivers the Program through digital tools and platforms with registered lifestyle coaches in group sessions. The Program is designed to help
prediabetic patients avoid developing Type 2 diabetes.
1.2 You are considered a “Participant” for purposes of these Terms if you complete the registration process required by Fruit Street to participate in the Program and Fruit Street sends you an email or other electronic notice that confirms your enrollment into such Program (each, a “Confirmation Notice”).
1.3 Fruit Street may in its sole discretion provide Participants with access to Beneficiary Engagement Incentives. “Beneficiary Engagement Incentives” means certain incentives, as determined by Fruit Street in its sole discretion, that Fruit Street may make available solely to Participants who are Medicare beneficiaries. Beneficiary Engagement Incentives are reasonably connected to the CDC-approved Program curriculum and advance a clinical goal by engaging Participants in better managing their own health. The Beneficiary Engagement Incentives (i) are not tied to the receipt of items or services outside of the Program, (ii) are not tied to the receipt of items or services from a particular provider, supplier, or coach, and (iii) costs are not shifted to another Federal healthcare program or Program beneficiary in anyway.
1.4 To the fullest extent permitted by law, Fruit Street may change, limit, suspend, or terminate access to Beneficiary Engagement Incentives at any time.
Participant will not resell Beneficiary Engagement Incentives or export them outside the United States.
1.5 Fruit Street in its sole discretion may offer Beneficiary Engagement Incentives that comprise physical or tangible goods (each, an “Incentive Good”). With
respect to all Incentive Goods, the following terms apply to the fullest extent permitted by law:
(a) Fruit Street relies on third parties to manufacture and deliver Incentive Goods to each Participant (each such third party, a “Third Party Provider”) and has no responsibility or liability to any Participant arising from or relating to any Incentive Goods, including any that are lost, damaged, or defective (including any such issues arising from the process of shipping or delivering any Incentive Good), except as set forthin Section 1.5(b)(ii) below;
(b) Without limiting any other terms or conditions set forth in these Terms:
(i) Fruit Street does not make any warranties relating to Incentive Goods and disclaims all warranties that may be implied by law (and any warranty relating to any Incentive Good is provided to a Participant directly by the applicable third party); (ii) Fruit Street’s sole obligation and liability to a Participant, and Participant’s sole remedy against Fruit Street, with respect to any lost, damaged, or defective Incentive Good, is for Fruit Street to use commercially reasonable efforts, during its regular business hours and consistent with its ordinary business practices, to report to the applicable Third Party Provider(s) the material facts surrounding Participant’s claim regarding any lost, damaged, or defective Incentive Good; and (iii) for the avoidance of doubt, Fruit Street has no obligation to pay any amounts to Participant or any third party to mitigate or address any such claim and does not make any guarantees or commitments about the outcome or result of any such claim; and (c) Title to an Incentive Good transfers to a Participant upon actual receipt of the Incentive Good by the Participant, and Fruit Street in its sole discretion may require that a Participant return to Fruit Street any or all Incentive Goods in accordance with any instructions or directions provided by Fruit Street. In any such case when Fruit Street so requires the return of any Incentive Good, the following additional terms apply: (i) upon transfer or delivery of the applicable Incentive Good to the applicable carrier during the return process, title to the Incentive Good transfers back to Fruit Street; (ii) Participant is solely responsible for any loss of or damage to any Incentive Good that arises from Participant’s acts or omissions, or that occurs during the process of returning Incentive Goods to Fruit Street; and (iii) Participant will reimburse Fruit Street for its out-of-pocket costs incurred to repair or replace (as chosen by Fruit Street in its sole discretion) any such lost or damaged Incentive Good.
2. Eligibility.
You must be at least 18 years old to access or use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at
least 18 years old; (b) you have not previously been suspended or removed from accessing or using the Service; and (c) your registration and your access to or use of the Service is in compliance with any and all applicable laws and regulations.
3. Accounts and Registration.
To access or use certain features of the Service, you must register for an account with us. When you register for an account, you may be required to provide us with some information about yourself. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at start@fruitstreetclinic.com.
4. General Payment Terms.
(1) Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you
will be charged. All fees are in U.S. Dollars and are non-refundable, except as required by law and as set forth in Section 4(2). (2) We will refund to you the total amount we actually received from you in exchange for us allowing you to participate in the Program, minus the costs we incurred relating to (i) any Beneficiary Engagement Incentives provided or made available to you, or (ii) us utilizing any third party services or technologies to transfer any payments to you, solely if you contact our customer support team at start@fruitstreetclinic.com within 15 days of when you receive the Confirmation Notice and request a refund.
4.1 Price. Fruit Street reserves the right to determine pricing relating to accessing or using the Service. Fruit Street will make reasonable efforts to keep pricing
information published on the Service up to date. We encourage you to check our pricing page periodically for current pricing information. Fruit Street may
change the fees for any feature of the Service, including additional fees or charges, if Fruit Street gives you advance notice of changes before they apply.
Fruit Street, at its sole discretion, may make promotional offers with different features and different pricing to any of Fruit Street’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
4.2 Authorization. You authorize Fruit Street to charge all sums for the orders that you make and any level of Service you select as described in these Terms
or published by Fruit Street, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, then
Fruit Street may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or
credit available to cover your purchase.
4.3 Subscription. The Service may include certain subscription-based plans with automatically recurring payments for periodic charges (“Subscription
Service”). The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. The Subscription Service will begin on the
Subscription Billing Date and continue for the subscription period that you select on your account (such period, the “Initial Subscription Period”), and will automatically renew for successive periods of the same duration as the Initial Subscription Period (the Initial Subscription Period and each such renewal period, each a “Subscription Period”) unless you cancel the Subscription Service or we terminate it. If you activate a Subscription Service, then you authorize Fruit Street or its third-party payment processors to periodically charge, on a going-forward basis and until cancellation of the Subscription Service, all accrued sums on or before the payment due date. For information on the “Subscription Fee”, please see the applicable portion of the Fruit Street website located at www.fruitstreet.com. Your account will be charged automatically on the Subscription Billing Date and thereafter on the renewal date of your Subscription Service for all applicable fees and taxes for the next Subscription Period. You must cancel your Subscription Service before it renews in order to avoid billing of the next periodic Subscription Fee to your account. Fruit Street or its third-party payment processor will bill the periodic Subscription Fee to the payment method associated with your account or that you otherwise provide to us. You may cancel the Subscription Service by contacting us at start@fruitstreetclinic.com.
YOUR CANCELLATION MUST BE RECEIVED BEFORE THE RENEWAL DATE IN ORDER TO AVOID CHARGE FOR THE NEXT SUBSCRIPTION PERIOD.
4.4 Delinquent Accounts. Fruit Street may suspend or terminate access to or use of the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are
incidental to any chargeback or collection of any the unpaid amount, including collection fees. If your payment method is no longer valid at the time a renewal
Subscription Fee is due, then Fruit Street reserves the right to delete your account and any information or User Content (defined below) associated with
your account without any liability to you.
5. Licenses
5.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Fruit Street grants you, solely for your personal, non-commercial
use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile or other downloadable application associated with the Service (whether installed by you or pre-installed on your mobile device by the device manufacturer or a wireless telephone provider) on a mobile device that you own or control; and (b) access and use the Service (and any materials or information we provide or make available to you in connection with your participation in the Program (“Program Materials”).
5.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute,
publicly display, publicly perform, or create derivative works of the Service; (b) make modifications to the Service; (c) interfere with or circumvent any feature
of the Service, including any security or access control mechanism; or (d) use, disclose, or otherwise exploit any Program Materials for any purpose other than
to enable your participation on the Program. If you are prohibited under applicable law from using the Service, then you may not use it.
5.3 Feedback. We respect and appreciate the thoughts and comments from our users. If you choose to provide input or, feedback, ideas or suggestions
regarding the Services or any aspect of Fruit Street’s products, services, or business (including any regarding functionalities, problems with or proposed modifications or improvements to the Service) (“Feedback”), then you hereby grant Fruit Street an unrestricted, perpetual, irrevocable, non-exclusive, fully-
paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products
and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
6. Ownership.
Proprietary Rights. The Service is owned and operated by Fruit Street. The visual interfaces, graphics, design, compilation, documentation,
content, material, information, data, computer code (including source code or object code), products, software, services, and all other elements of the
Service (including Program Materials) provided by Fruit Street (“Materials”) are protected by intellectual property and other laws. All Materials included in
the Service are the property of Fruit Street or its third-party licensors. Except as expressly authorized by Fruit Street, you may not make use of the Materials.
There are no implied licenses in these Terms and Fruit Street reserves all rights to the Materials not granted expressly in these Terms.
7. Third-Party Terms
7.1 Third-Party Services and Linked Websites. Fruit Street may provide tools through the Service that enable you to export information or material to third-
party services. By using one of these tools, you hereby authorize that Fruit Street to transfer that information to the applicable third-party service. Third-party services are not under Fruit Street’s control, and, to the fullest extent permitted by law, Fruit Street is not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under Fruit Street’s control, and Fruit Street is not responsible for their content. Please be sure to review the terms of use and privacy policy of any third-party services before you share any User
Content or information with such third-party services. Once sharing occurs, Fruit Street will have no control over the information that has been shared.
7.2 Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses
granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
8. User Content
8.1 User Content Generally. Certain features of the Service may permit users to submit, upload, or otherwise transmit (“Post”) content to the Service, including text, video, audio, images, data, and any other works of authorship or other works (“User Content”).
8.2 License Grant to Fruit Street. By Posting User Content to or via the Service, you grant Fruit Street a non-exclusive, perpetual, irrevocable, transferable,
worldwide, royalty-free, fully paid right and license, with the right to grant and authorize sublicenses, to use, reproduce, modify, create derivative works of,
publicly display, publicly perform, distribute, and otherwise exploit your User Content, in whole or in part, in any media formats and through any media channels, in each instance whether now known or hereafter developed.
8.3 User Content Representations and Warranties. Fruit Street disclaims any and all liability in connection with User Content. You are solely responsible for
your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and
warrant to us that:
(a) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Fruit Street and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Fruit Street, the Service, and these Terms;
(b) your User Content, and the Posting or other use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or
proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Fruit Street to violate any law or regulation or require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and
(c) your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening,
embarrassing, hateful, or otherwise inappropriate.
8.4 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users Post and will not be in any way responsible or liable for User Content. Fruit Street may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole
judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. You understand that, when access or using the
Service, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or
objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Fruit Street with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Fruit Street does not
permit infringing activities on the Service.
8.5 Monitoring Content. Fruit Street does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third
parties; or (c) the use of the Service by its users. You acknowledge and agree that Fruit Street reserves the right to, and may from time to time, monitor any
and all information transmitted or received through the Service for operational and other purposes. If at any time Fruit Street chooses to monitor the content,
then Fruit Street still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring,
information may be examined, recorded, copied, and used in accordance with our Privacy Policy (defined below). Fruit Street may block, filter, mute, remove
or disable access to any User Content uploaded to or transmitted through the Service without any liability to the user who Posted such User Content to the
Service or to any other users of the Service.
9. Communications
9.1 Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on
your mobile device when you are not in the app. You can turn off notifications by visiting your mobile device’s “settings” page.
9.2 Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
10. Prohibited Conduct.
YOU AGREE NOT TO:
10.1 access or use the Service for any illegal purpose or in violation of any local, state, national, or international law;
10.2 harass, threaten, demean, embarrass, bully, or otherwise harm any other user of the Service;
10.3 violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
10.4 access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders,
robots, crawlers, and data mining tools) other than the software or search agents provided by Fruit Street;
10.5 interfere with security-related features of the Service; disable or circumvent features that prevent or limit use, printing or copying of any content; or reverse engineer or otherwise attempt to discover the source code, trade secrets or know-how comprising or underlying any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
10.6 interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal
information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected
to or used to provide the Service;
10.7 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Service account
without permission, or providing false information to Fruit street;
10.8 sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6 (Ownership; Proprietary Rights)) or any right
or ability to view, access, or use any Materials; or
10.9 attempt to do any of the acts described in this Section 10 (Prohibited Conduct) or assist or permit any person in engaging in any of the acts described in this Section 10 (Prohibited Conduct).
11. Intellectual Property Rights Protection
11.1 Respect of Third Party Rights. Fruit Street respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Service.
11.2 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about any material on the Service, you may contact our Designated Agent at the following address:
Fruit Street Health, Public Benefit Corp
Attn: Legal Department (IP Notification)
5601 Bridge Street, Fort Worth, TX, 76112
Email: ip-infringement@fruitstreet.com
11.3 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 written “Notification of Claimed Infringement” to
the Designated Agent identified above containing the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
(b) a description of the copyrighted work or other intellectual property right that you claim has been infringed;
(c) a description of the material that you claim is infringing and where it is located on the Service;
(d) your address, telephone number, and email address;
(e) a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright or other intellectual property right owner, its agent, or the law; and
(f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or other intellectual property right owner or authorized to act on the copyright or intellectual property owner’s behalf.
Your Notification of Claimed Infringement may be shared by Fruit Street with the user alleged to have infringed a right you own or control as well as with the operators of publicly available databases that track notifications of claimed infringement, and you consent to Fruit Street making such disclosures. You should consult with your own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
11.4 Repeat Infringers. Fruit Street’s policy is to: (a) remove or disable access to material that Fruit Street believes in good faith, upon notice from an intellectual property rights owner or authorized agent, is infringing the intellectual property rights of a third party by being made available through the
Service; and (b) in appropriate circumstances, to terminate the accounts of and block access to the Service by any user who repeatedly or egregiously infringes other people’s copyright or other intellectual property rights. Fruit Street will terminate the accounts of users that are determined by Fruit Street to be repeat infringers. Fruit Street reserves the right, however, to suspend or terminate accounts of users in our sole discretion.
11.5 Counter Notification. If you receive a notification from Fruit Street 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 Fruit Street with what is called a “Counter Notification.” To be effective, a
Counter Notification must be in writing, provided to Fruit Street’s Designated Agent through one of the methods identified in Section 11.2 (DMCA Notification), and include substantially the following information:
(a) your physical or electronic signature;
(b) 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;
(c) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(d) your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are residing outside of the United States, then for any judicial district in which Fruit Street may be found, and that you will accept service of process from the person who provided notification under Section 11.2 (DMCA Notification) above or an agent of that person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
11.6 Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Fruit Street in response to a Notification of Claimed
Infringement, then Fruit Street will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Fruit Street will replace the removed User Content or cease disabling access to it in 10 business days, and Fruit Street will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Fruit Street’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 Fruit Street’s system or network.
11.7 False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny person who
knowingly materially misrepresents under [Section 512 of the Copyright Act. (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Fruit Street] 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.” Fruit Street reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
12. Modification of Terms.
We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept modified Terms in order to continue to access or use the Service. If you do not agree to the modified Terms, then you should remove your User Content (if applicable) and discontinue your access to and use of the Service. Except as expressly permitted in this Section 12 (Modification of Terms), these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
13. Term, Termination, and Modification
13.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 13.2 (Termination).
13.2 Termination. If you violate any provision of these Terms, then your authorization to access or use the Service and these Terms automatically
terminate. In addition, Fruit Street may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to
the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination. You may terminate your account and these Terms at any time by contacting customer service at start@fruitstreetclinic.com.
13.3 Effect of Termination. Upon termination of these Terms:
(a) your license rights will terminate and you must immediately cease all access to and use of the Service;
(b) you will no longer be authorized to access your account or the Service;
(c) you must pay Fruit Street any unpaid amount that was due prior to termination;
(d) all payment obligations accrued prior to termination will survive; and (e) the following Sections, and all defined terms required to interpret those Sections, will survive: 1.4 and 1.5 (Overview), 5.2 (License Restrictions), 5.3 (Feedback), 6 (Ownership; Proprietary Rights), 8.2 (Licensed Granted to Fruit Street), 10 (Prohibited Conduct), 13.3 (Effect of Termination), 14 (Indemnity), 15 (Disclaimers; No Warranties by Fruit Street), 16 (Limitation of Liability), 17 (Dispute Resolution and Arbitration), and 18 (Miscellaneous). You are solely responsible for retaining copies of any User Content you Post to the Service since upon termination of your account, you may lose access rights to any User Content you Posted to the Service. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Service using a different name, email address or other
forms of account verification.
13.4 Modification of the Service. Fruit Street reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or
discontinuing certain features of the Service), temporarily or permanently, without notice to you. Fruit Street will have no liability for any change to the
Service, including any paid-for functionalities of the Service, or any suspension or termination of your access to or use of the Service. You should retain copies
of any User Content you Post to the Service so that you have permanent copies in the event the Service is modified in such a way that you lose access to User
Content you Posted to the Service.
14. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Fruit Street, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Fruit Street Entities”)
from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of
or connected with: (1) your unauthorized use of, or misuse of, the Service; (2) your violation of any portion of these Terms, any representation, warranty, or
agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right
or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue between you and any third party. We reserve the right, at our own
expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification
obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
15. Disclaimers;
No Warranties by Fruit Street
15.1 THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, AND ALL BENEFICIARY ENGAGEMENT INCENTIVES, ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. FRUIT STREET DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE, ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, AND ALL BENEFICIARY ENGAGEMENT INCENTIVES, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. FRUIT STREET DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, OR ANY BENEFICIARY ENGAGEMENT INCENTIVES, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND FRUIT STREET DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
15.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR FRUIT STREET ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE OR THE BENEFICIARY ENGAGEMENT INCENTIVES WILL CREATE ANY WARRANTY REGARDING ANY OF THE FRUIT STREET ENTITIES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE BENEFICIARY ENGAGEMENT INCENTIVES, SERVICE OR YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AND THE BENEFICIARY ENGAGEMENT INCENTIVES AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE OR THE BENEFICIARY ENGAGEMENT INCENTIVES) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
15.3 WITHOUT LIMITING ANY OTHER TERMS IN THIS SECTION 15 OR ELSEWHERE IN THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT FRUIT STREET IS NOT A HEALTHCARE PROVIDER AND DOES NOT OFFER MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, PLEASE CALL 911 OR SEEK IMMEDIATE CARE FROM A LICENSED HEALTHCARE PROFESSIONAL. OUR SERVICES ARE NOT INTENDED TO REPLACE PROFESSIONAL MEDICAL ADVICE OR EMERGENCY CARE. ALWAYS CONSULT WITH YOUR PHYSICIAN OR A QUALIFIED HEALTHCARE PROVIDER FOR MEDICAL CONCERNS.
15.4 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 15 (DISCLAIMERS; NO WARRANTIES BY FRUIT STREET) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Fruit Street does not disclaim any warranty or other right that Fruit Street is prohibited from disclaiming under applicable law.
16. Limitation of Liability
16.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE FRUIT STREET ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO THESE TERMS (INCLUDING YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, ANY BENEFICIARY ENGAGEMENT INCENTIVES, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY FRUIT STREET ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
16.2 EXCEPT AS PROVIDED IN SECTIONS 17.5 (COMMENCING ARBITRATION) AND 17.7 (ARBITRATION RELIEF) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE FRUIT STREET ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS (INCLUDING ANY USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR RELATING TO ANY BENEFICIARY ENGAGEMENT INCENTIVES), WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO FRUIT STREET FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US$100.
16.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 (LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
17. Dispute Resolution and Arbitration
17.1 Generally. Except as described in Section 17.2 (Exceptions) and 17.3 (Opt-Out), you and Fruit Street agree that every dispute arising in connection with
these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or
jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability
of this binding arbitration agreement will be resolved by the arbitrator.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND FRUIT STREET ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
17.2 Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to:
(a) bring an individual action in small claims court;
(b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available;
(c) seek injunctive relief in a court of law in aid of arbitration; or
(d) to file suit in a court of law to address an intellectual property infringement claim.
17.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 17 (Dispute Resolution and Arbitration) within 30 days after the date that you agree to these Terms by sending a letter to Fruit Street Health, Public Benefit Corp, Attention: Legal Department – Arbitration Opt-Out, at 5601 Bridge Street, Fort Worth, TX, 76112, that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Fruit Street receives your Opt-Out Notice, this Section 17 (Dispute Resolution and Arbitration) will be void and any action arising out of these Terms will be resolved as set forth in Section 18.2 (Governing Law). The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
17.4 Arbitrator. This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the American
Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and
filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting Fruit Street.
17.5 Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or
by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Fruit Street’s address for Notice is 5601 Bridge Street, Fort Worth, TX, 76112. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Fruit Street may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, Fruit Street will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if the Company has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and the other party may seek reimbursement for any fees paid to AAA.
17.6 Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your residence unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents
submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish)
of your residence. During the arbitration, the amount of any settlement offer made by you or Fruit Street must not be disclosed to the arbitrator until after
the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a
reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
17.7 Arbitration Relief. Except as provided in Section 17.8 (No Class Actions), the arbitrator can award any relief that would be available if the claims had been
brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Fruit Street before an arbitrator was selected, Fruit Street will pay to you the higher of: (a)the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s
award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator's award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction
that shall not be bound by the arbitrator's application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
17.8 No Class Actions. YOU AND FRUIT STREET 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 Fruit Street 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.
17.9 Modifications to this Arbitration Provision. If Fruit Street makes any substantive change to this arbitration provision, you may reject the change by
sending us written notice within 30 days of the change to Fruit Street’s address for Notice of Arbitration, in which case your account with Fruit Street will be
immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
17.10 Enforceability. If Section 17.8 (No Class Actions) or the entirety of this Section 17 (Dispute Resolution and Arbitration) is found to be unenforceable, or if Fruit Street receives an Opt-Out Notice from you, then the entirety of this Section 17 (Dispute Resolution and Arbitration) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 18.2 (Governing Law) will govern any action arising out of or related to these Terms.
18. Miscellaneous
18.1 General Terms. These Terms, including the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the
entire and exclusive understanding and agreement between you and Fruit Street regarding your access to or use of the Service. You may not assign or
transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign
these Terms and all rights granted under these Terms, including with respect to your User Content, at any time without notice or consent. The failure to require
performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of
these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in
these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, then the unenforceable part will be given
effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
18.2 Governing Law. These Terms are governed by the laws of the State of Texas without regard to conflict of law principles. You and Fruit Street submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Tarrant County, Texas, for resolution of any lawsuit or court
proceeding permitted under these Terms.
18.3 Privacy Policy. Please read the Fruit Street Privacy Policy [https://www.fruitstreet.com/privacy-policy] (the “Privacy Policy”) carefully
for information relating to our collection, use, storage, and disclosure of your personal information. The Fruit Street Privacy Policy is incorporated by this
reference into, and made a part of, these Terms.
18.4 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
18.5 Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
18.6 Contact Information. The Service is offered by Fruit Street Health, Public Benefit Corp, located at 5601 Bridge Street, Fort Worth, TX, 76112. You may
contact us by sending correspondence to that address or by emailing us at start@fruitstreetclinic.com.
18.7 Notice to California Residents. If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint
Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information
regarding use of the Service.
18.8 No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
18.9 International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or
available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is
prohibited.
19. Notice Regarding Apple.
This Section 19 (Notice Regarding Apple) only applies to the extent you are using our mobile application on an iOS device.
You acknowledge that these Terms are between you and Fruit Street only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (1) product liability claims; (2) any claim that the Service fails to
conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for
the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third
party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right)
to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
