Believe Her a dba of Dr. Shalon’s MAP (“Believe Her“, “we“, “us” or “our”) offers certain peer connection services (the “Believe Her Services”) to physical and mental health professionals (each a “Professional“) for the benefit of those Professional’s patients (each a “Patient“) and/or our users (each a “User“). Professionals, Patients, and Users are collectively called app users (each a “App User“).
Description of Service: Believe Her offers an internet-based service that enables App Users to access a mobile based communication platform to facilitate mental health wellness. The app may be used to send private, group, commercial messages, or email (“Messages“) between App Users and us. Believe Her provides App Users with tools with which to deliver such Messages, and as well provides for their delivery to App Users in a variety of ways – for example, through in-app Messages and push notification services (“Notificaitons“). The Believe Her Services may include, without limitation: Messages, App User profiles, App User ratings, Notifications, emergency alert mechanisms, text communication, video communication, prizes and products, and email. A more detailed explanation of the Believe Her Services can be found at Believe Her’s website, at https://believeherapp.com.
General Restrictions on Use: App User will at all times send Messages only as prescribed by Believe Her or within the legal extend of the law. App User may not use the Believe Her Service to promote any products or services that it does not offer and sell directly to App Users. App User may not change the privacy policies established by Believe Her for App Users. Where as allowed, Professionals may sign up with us to sell or promote their services to App Users.
App User must comply with a host of federal and state laws in using the Believe Her Service, and App User accepts and assumes sole and exclusive responsibility to comply with these laws. In this regard, Believe Her strongly encourages App User to refer to the following non-exclusive list of laws and resources to help combat possible legal violations relating to its use of the Believe Her Service in the US (Please check with your local laws outside of the US for further local restrictions, laws, and permissible communications):
App User should carefully review the laws listed above, and is responsible for compliance with such laws. Similarly, Believe Her encourages Professional to review the laws of the state or states in which it operates or to which it sends Messages via the Believe Her Service, and is responsible for compliance with such laws.
Believe Her has also adopted its own restrictions applicable to the use of the Believe Her Services. These restrictions in many cases track the requirements of applicable law, and are discussed below. App User’s failure to follow these restrictions, for example by creating and sending Messages in a manner contrary to these restrictions, will not be tolerated by Believe Her, and is done at App User’s own risk. App User is also advised that its adherence to these restrictions will not assure that App User will be compliant with all federal and state laws applicable to it.
Developing Message Content: App User acknowledges and agrees that Believe Her is not a publisher of the content contained in App User’s Messages. App User understands that all information, data, text, software, music, sound, photographs, graphics, audio, video, messages or other materials (“Content“), whether publicly posted or privately transmitted by App Users, is the sole responsibility of App User. This means that App User, and not Believe Her, is entirely responsible for all Content that App User uploads, posts, transmits or otherwise makes available via the Believe Her Service. Believe Her does not control the Content posted via the Believe Her Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will Believe Her be liable (including, without limitation, to any App User) for any Content, including, but not limited to, any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the Believe Her Service.
The following is a non-exclusive list of Content (and related products and services) that Believe Her prohibits (“Prohibited Content“):
Restrictions on Use: Each App User agrees not to use any User Services for any reason related to any Prohibited Content or otherwise prohibited by law.
User Messages: App User agrees that Believe Her may send messages to the App User regarding the User Services either via the User Profile or by email to an email address expressly provided by the App User to Believe Her. Every email sent by Believe Her Service will be automatically appended with an opt-out link that will allow App User to remove such App User’s email address from Believe Her’s contact list, and a notice of App User’s right to opt-out. App User may opt-out of receiving massages from Believe Her via the App User’s User Profile by calling or emailing Believe Her and requesting that Believe Her discontinue the use of such App User’s User Profile.
Taxes: Professional will be responsible for all taxes that arise in any jurisdiction, including value added, consumption, sales, use, gross receipts, excise, access, bypass, franchise or other taxes, fees, duties, charges or surcharges imposed on or incident to the provision, sale or use of the Believe Her Services. The foregoing excludes any tax based upon Believe Her’s net income.
Believe Her does not claim ownership of any content or data that App User designs, submits or makes available for use or inclusion in connection with the Believe Her Services (including but not limited to any Content related to the Believe Her Services). However, with respect to all feedback, comments, likenesses, data and other content that App User supplies to Believe Her, including but not limited to App User’s name, logo, trademark, service marks or copyrights, App User grants to Believe Her a perpetual, worldwide, unlimited, royalty-free and non-exclusive license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such content in connection with the Believe Her Services and elsewhere for the purpose for which such content was submitted or made available, and also for the purpose of promoting the Believe Her Services.
All of App User’s right, title and interest in and to any ideas, feedback, drawings, and/or content App User generates that lead directly or indirectly to improvements in the Believe Her Services, new products introduced by Believe Her, or new business lines (and all proprietary rights with respect thereto), are hereby assigned by App User to Believe Her. App User also hereby waives any moral rights App User may have in and to the foregoing.
Member Account and Password: To access the Believe Her Services, each App User must use a validated email address and password or by a third party login service (“Login Service“). Each App User will: (i) keep the password or Login Service confidential; (ii) not allow any other entity or person to use the user name or password, or gain access to Believe Her’s database; (iii) be liable for all action taken by any App User of their login methods for their App User login and (iv) promptly notify Believe Her if App User believes their user account has been used inappropriately or the confidentiality of the information made available through such use has been compromised.
The use of the user name or password does not grant App User ownership of such user name or password, which is retained by Believe Her. Believe Her may temporarily or indefinitely revoke a App User’s account, privileges, or access at any time for any or no reason and without liability to App User, as applicable.
Fees: Believe Her may charge a fee to any App User for use of the Believe Her Services. If such a fee is charged, it will be explained in a separate application or agreement between Believe Her and App User. App User may not share a Believe Her account between or among other App User.
Termination/Cancellation: App User may cancel its subscription to the Believe Her Services or the User Services, as applicable, at any time by emailing or calling Believe Her. Believe Her may terminate, disable, restrict, suspend or cancel any App User’s access to the Believe Her Services, in each case at any time with or without cause, and with or without notice. Believe Her shall have no liability to any App User or third party because of such action. Notwithstanding the cancellation by App User of its subscription to the Believe Her Services, or the termination, disabling, restriction or suspension of App User’s access thereto (collectively, a “Termination“), App User shall remain liable and responsible for satisfying all financial and other obligations arising from its participation (including the payment of any and all applicable fees, charges and other amounts) that may have accrued prior to the effective date of the Termination (including, without limitation, to Believe Her and any App User). App User shall cease using materials, properties and portals provided by Believe Her after Termination.
Limitation of Liability and Indemnification: Each App User agrees that Believe Her, and its business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents, will benefit from, and be protected by, the following limitation of liability and warranty provisions:
(a) APP USER, AS APPLICABLE, AGREES AND ACKNOWLEDGES THAT BELIEVE HER SHALL HAVE NO LIABILITY, EITHER IN TORT, CONTRACT OR IN COMBINATION THEREOF, FOR CLAIMS ARISING IN CONNECTION WITH THE BELIEVE HER SERVICES OR APP USER SERVICES, EXCEPT IN THE CASE OF GROSS OR WILLFUL MISCONDUCT ON THE PART OF BELIEVE HER. ANY SUCH CLAIMS ARE SUBJECT TO LIMITATIONS SET FORTH BELOW AND IN NO EVENT SHALL BELIEVE HER BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INDIRECT OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, REVENUES OR LOST BUSINESS OPPORTUNITIES.
(b) THE LIABILITY, IF ANY, OF BELIEVE HER, WHETHER TO ANY TYPE OF APP USER OR TO ANY OTHER PARTY, WHATEVER THE BASIS OF LIABILITY, SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF FEES PAID BY APP USER TO BELIEVE HER DURING THE MONTH IN WHICH THE ACTION OR OMISSION GIVING RISE TO THE LIABILITY OCCURRED. IN NO EVENT WILL THE LIABILITY OF BELIEVE HER IN CONNECTION WITH THE BELIEVE HER SERVICE OR APP USER SERVICES EXCEED $500.
Furthermore, App User understands and acknowledges that not every Message sent by the Believe Her Services will be received by the intended audience, and that Believe Her is not responsible for the delivery of data, or any other problems that may occur. Believe Her will use reasonable efforts to ensure that the Believe Her Services are available on a 24/7 basis. However, there will be occasions when the Believe Her Services will be interrupted for maintenance, upgrades and repairs, or because of failure of telecommunications that are beyond Believe Her’s control. Believe Her shall not be liable to App User for any modification, suspension or discontinuance of the Believe Her Services.
Due to the open nature of Internet communications, no data transmission over the Internet can be guaranteed to be secure, and thus Believe Her cannot guarantee that communications between any App Users, on the one hand, and Believe Her, on the other, will be free from unauthorized access by third parties.
Jury Waiver: IN THE EVENT ANY CONTROVERSY OR CLAIM BETWEEN BELIEVE HER AND APP USER SHALL ARISE IN ANY JUDICIAL OR LEGAL PROCEEDING, EACH SUCH PARTY KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVES ITS RESPECTIVE RIGHT TO TRIAL BY JURY OF SUCH CONTROVERSY OR CLAIM.
App User Dispute Notification: App User is responsible for the timely reconciliation of all issues related to the Believe Her Services. App User will promptly examine all statements relating to App User’s account and immediately notify Believe Her in writing of any errors. App User’s written notice must include: (i) App User name; (ii) the dollar amount of the asserted error; (iii) a description of the asserted error. This written notice must be received by Believe Her within thirty (30) days after App User received the periodic statement containing the asserted error.
c/o TchTnk LLC
2112 W. Arapahoe Dr
Littleton, Colorado 80120
Publicity: App User agrees that Believe Her may issue a press release or similar public announcement referencing App User as a customer of Believe Her. App User also grants to Believe Her a limited license to use App User’s and its affiliates’ names, logos, trademarks, service marks or copyrights in any advertising, promotional or instructional materials for Believe Her or its affiliates’ services.
The restrictions on disclosure in this section will not apply to Confidential Information: (i) for which there is documentary evidence that: (A) the other party knew it before it was disclosed; (B) the other party developed it without use of the Confidential Information; (C) it is publicly known; or, (D) it was obtained from a third-party, who disclosed it without breaching its confidentiality obligations; (ii) for which disclosure is required by law (provided that if a disclosure is required by law, the disclosing party will give Believe Her prompt written notice of such requirement, permitting Believe Her to seek a protective order or take such action it deems necessary, and provided further that in such case the disclosing party will only disclose the limited Confidential Information expressly required to be disclosed).
For the avoidance of doubt, at all times, all Confidential Information is the sole property of Believe Her, even if its disclosure is authorized under this section, and all other restrictions in these Believe Her Terms and Conditions will continue to apply to such Confidential Information.
Non-Disparagement: App User agrees not to disparage Believe Her or its respective vendors, and promises to refrain from engaging, directly or indirectly, in any action, communication or conduct negligently, recklessly or intentionally undertaken to damage the name or reputation of Believe Her or its respective vendors or App Users.