Besanna Consumer Agreement

Last Updated: November 1, 2021

This Besanna Consumer Agreement (the “Agreement”) is a legal agreement between you (including your heirs, assigns, and successors) (collectively, “you,” “your”) and Besanna and its affiliates (collectively, “Besanna,” “we,” “our” or “us”) governing your use of Besanna’s consumer web-based application and/or mobile applications (collectively, the “Besanna App”). Please read this Agreement carefully. By clicking on the “I Accept” button, completing the registration process, and/or downloading, and/or using the Besanna App, you represent that (1) you have read, understand, and agree to be bound by this Agreement, (2) you are of legal age to form a binding contract with Besanna, and (3) you have the authority to enter into this Agreement personally or on behalf of the company you have named as the user, and to bind that company to the Agreement. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE BESANNA APP.

PLEASE BE AWARE THAT SECTION 25 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN YOU AND BESANNA TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.

1. Besanna App Registration and Account Activation

The Besanna App allows you to create one (1) universal consumer subscriber (“Besanna Subscribers”) profile that enables you to perform personal health scans and suggest products for wellness. The Besanna App allows non-subscribers to create a profile and have a personal health scan performed and products to be suggested on a limited basis.

The Besanna App also enables you to use a non-subscriber account that was previously created and convert it to a subscriber account, so that you may view your history of purchases, and to renew or purchase additional services.

To make credit or debit card purchases from Besanna, you must complete the registration and open an account within the Besanna App (“Besanna App Account”). You do this by providing your first and last name and email address and associating one (1) valid credit or debit card with that Besanna App Account. You must provide accurate and up-to-date information. You are solely responsible for managing your Besanna App Account. Your Besanna App Account is non-transferrable and may not be sold, combined or otherwise shared with any third party. We reserve the right to suspend or terminate your Besanna App Account if you provide inaccurate, untrue, or incomplete information or if you attempt to use your Besanna App Account to engage in illegal or unethical activities.

2. Accepted Payment Methods

The Besanna App allows you to make payments by those methods accepted by Besanna. Typically, these are card-based methods, including cards bearing the trademarks of Visa Inc., MasterCard International Inc., Discover Inc., and/or American Express Inc. (collectively, the “Networks”). We are not a bank, and do not offer banking services as defined by the United States Department of Treasury. We also do not offer money service business services as defined by the United States Department of Treasury. You can associate with your Besanna App Account any U.S.-issued and most non-U.S. issued credit, debit, pre-paid, or gift cards with a Visa, MasterCard, American Express, or Discover logo. You may not associate Health Savings Account (HSA) cards with your Besanna App Account, even if they have a Visa, MasterCard, American Express, or Discover logo on them.

3. Your Authorization for Purchases Made Through the Besanna App

By associating a payment card with your Besanna App Account, searching for and reserving services in the Besanna App, and agreeing to pay for those services within the Besanna App, you are authorizing a charge to your payment card as necessary to complete the purchase. In the event you are entitled to a reversal, refund, chargeback, or other adjustment associated with a purchase you made through the Besanna App, you also authorize a credit to your payment card to accomplish that transaction.

Purchases you authorize through the Besanna App may also be subject to terms and conditions set forth by the Networks and/or the entities that issue your card. You are responsible for complying with those terms and conditions, and you are responsible for charges and related fees and billing terms imposed by those terms and conditions as well as any fees and/or surcharges imposed by Besanna.

4. Compatible Mobile Devices and Third Party Carriers

Your Besanna App Account permits you to make payments on a compatible mobile device. Devices modified contrary to the manufacturer’s software or hardware guidelines, including but not limited to disabling hardware or software controls-sometimes referred to as “jailbreaking”, are not compatible mobile devices. You acknowledge that the use of a modified device to use the Besanna App is expressly prohibited, constitutes a violation of the terms of this Agreement, and is grounds for termination of your Besanna App Account. Besanna does not warrant that the Besanna App will be compatible with your mobile device or third party carrier.

Your use of the Besanna App may be subject to the terms of your agreements with your mobile device manufacturer and your carrier.

5. App Stores

You acknowledge and agree that the availability of the Besanna App is dependent on the third party from whom you received the Besanna App license, e.g., the Apple App Store or Google Play (“App Store“). You acknowledge that this Agreement is between you and Besanna and not with Apple, Google, or their App Stores. Besanna, not Apple, Google, or their App Stores, is solely responsible for the Besanna App, the content thereof, maintenance, support services, and warranty therefore, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Besanna App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Besanna App. You agree to comply with, and your license to use the Besanna App is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Besanna App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of this Agreement and will have the right to enforce them.

6. Restrictions on Use

By using the Besanna App, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a “Minor“), that you are using the Besanna App with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the Besanna App and agree to this Agreement. If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to this Agreement and to fully indemnify and hold harmless Besanna if the Minor breaches any of the terms of this Agreement. If you are not at least 13 years old, you may not use the Besanna App at any time or in any manner or submit any information to the Besanna App or Besanna.

The Besanna App and your Besanna App Account may only be used in a country or territory where current Besanna Subscribers exist and the laws of that country or territory permit its use. You may not export the Besanna App directly or indirectly, and you acknowledge that the Besanna App may be subject to export restrictions imposed by U.S. law, including U.S. Export Administration Regulations (15 C.F.R. Chapter VII).

By creating a Besanna App Account, you also confirm that you will not make payments in connection with the following businesses or business activities: (1) any illegal activity, (2) credit counseling or repair agencies, (3) credit protection or identity theft protection services, (4) direct marketing or subscription offers or services, (5) infomercial sales, (6) internet/mail order/telephone order pharmacies or pharmacy referral services (where fulfillment of medication is performed with an internet or telephone consultation, absent a physical visit with a physician including re-importation of pharmaceuticals from foreign countries), (7) inbound or outbound telemarketers, (8) prepaid phone cards or phone services, (9) rebate based businesses, (10) upsell merchants, (11) bill payment services, (12) betting, including lottery tickets, casino gaming chips, off-track betting, and wagers at races, (13) financial institutions offering manual or automated cash disbursements, (14) financial institutions offering merchandise and services, (15) sales of money orders or foreign currency by non-financial institutions, (16) wire transfer money orders, (17) high-risk merchants, including telemarketing merchants, (18) service station merchants, (19) automated fuel dispensers, (20) adult entertainment oriented products or services (in any medium, e.g., internet, telephone or printed material), (21) internet/mail order/telephone order firearm or weapon sales, (22) internet/mail order/telephone order cigarette or tobacco sales, (23) drug paraphernalia, (24) hate products, (25) escort services, and/or (26) bankruptcy attorneys.

7. Texting Features Consent

Besanna may, from time to time, offer text message programs, including one-time texts and subscription text services, where Besanna texts you for alerts, promotions and other purposes (“SMS Texting Services”). For more information on these services, please visit SMS Texting Terms and Conditions.

To the extent you use any feature of the Besanna App that enables you to send text message to device holders and you elect to use the feature, you acknowledge that Besanna only provides a platform for you to send text messages through the Besanna App and has no responsibility or liability for any such text messages or related message content. Your responsibilities as set forth in this Agreement will remain your sole responsibility and liability even if Besanna offers advice or guidance regarding the text messages you transmit.

8. Unauthorized or Illegal Transactions

We may decide not to process a transaction if we believe that the transaction is in violation of any Besanna agreement or exposes you, other Besanna users, our partners, or Besanna to harm. Harm includes fraud and other criminal acts. If we reasonably suspect that your Besanna App Account has been used for any unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your Besanna App Account, and/or any of your transactions with law enforcement.

9. Your Privacy

Our privacy policy governs how we collect and use personal information that is submitted through our apps and services. Upon agreeing to be bound by this Agreement you confirm that you have read, understood and accepted Besanna’s Privacy Policy located at besanna.com/privacy.

10. Customer Service Disclaimer

You understand and agree that Besanna is solely responsible for the goods and services that you purchase through the Besanna App. Besanna is responsible for customer service related to those goods and services, including the nature, content and quality of the service, and cancellation, return and refund policies, adjustments, rebates, functionality and warranty, technical support, and issues concerning the Besanna App. The Networks authorized to collect payment, and not Besanna, are responsible for customer service related to your payment card.

11. Disclosures and Notices

You acknowledge and agree that Besanna may provide disclosures and other notices required by law and other information about your Besanna App Account to you electronically by posting them on the Besanna App or by emailing the email address listed in your Besanna App Account. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. You are responsible for providing Besanna with your most current e-mail address. In the event that the last e-mail address you provided to Besanna is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, Besanna’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.

12. User Content

In connection with registering for a Besanna App Account, you may provide reviews, feedback and other content regarding Besanna products and services. This content may include photos, name, alias, likeness, appearance, form or other materials or information uploaded to the Besanna App (“User Content”). You agree that you will not upload User Content to the Besanna App unless you have created that content yourself or you have permission from the copyright owner to do so.

For any User Content that you upload to the Besanna App, you grant us and our subsidiaries, affiliates, and successors a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, fully-paid, transferable, and sub-licensable right and license to use, license, reproduce, modify, adapt, publish, translate, prepare derivative works of, distribute, derive revenue or other remuneration from, and communicate to the public, perform, and display that User Content (in whole or in part) throughout the world in any media in order to provide and promote the Besanna App and Besanna’s business. You retain all rights in your User Content, subject to the rights granted to Besanna in this Agreement. You may modify or remove your User Content via your Besanna App Account or by terminating your Besanna App Account. For User Content containing audio and/or video recordings or livestreams, you hereby waive all rights and release and discharge Besanna from all manner of actions, causes of action, debts, accounts, contracts, claims and demands whatsoever, including defamation, invasion of right to privacy, publicity or personality or any similar matter, arising out of or relating to the use and exploitation of such User Content or your name, alias, likeness, appearance and form.

You agree not to upload to the Besanna App or otherwise post, transmit, distribute, or disseminate through the Besanna App any content that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches any duty toward or rights of any person or entity, including rights of publicity or privacy; (d) contains corrupted data or any other harmful, disruptive, or destructive files; (e) advertises products or services competitive with Besanna’s or its partners’ products and services, as determined by Besanna in its sole discretion; or (f) in Besanna’s sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Besanna App, or which may expose Besanna, its affiliates, or users to harm or liability of any nature.

You acknowledge that Besanna has no obligation to pre-screen, edit, or monitor any User Content, although Besanna reserves the right in its sole discretion to refuse, remove, screen, edit or disable any User Content at any time and for any reason without notice. You understand that by using the Besanna App, you may be exposed to User Content that is offensive, indecent, or objectionable. We take no responsibility and assume no liability for any User Content, including any loss or damage to any of your User Content.

We expect users to respect the intellectual property of others. Please contact us at hello@besanna.com to notify us of copyright or trademark violations.

13. Intellectual Property Policy

Besanna respects the intellectual property rights of others and will investigate and respond to notices of alleged infringement that are properly submitted via email (or such other ways as specified by Besanna), as may be updated by Besanna from time to time. Any data or information submitted to the Besanna App is subject to these Terms.

14. Your Right to Terminate

You may terminate this Agreement at any time by closing your Besanna App Account and ceasing to use the Besanna App.

15. Our Right to Suspend or Terminate

We may terminate this Agreement and close your Besanna App Account for any reason or no reason (with or without notice) at any time, including (but not limited to), if you (a) have violated the terms of this Agreement or any other agreement you have with Besanna or Besanna’s policies, (b) pose an unacceptable credit or fraud risk to us, and/or (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct on the Besanna App.

16. Effect of Termination

If your Besanna App Account is terminated for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the Besanna App, (c) that the license provided under this Agreement shall end, (d) that we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers, and (e) that Besanna shall not be liable to you or any third party for termination of access to the Besanna App, or for deletion of your information or account data.

We will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Besanna App, or in connection with any termination or suspension of the Besanna App. Any termination of this Agreement does not relieve you of any obligations to pay any fees or costs accrued prior to the termination and any other amounts owed by you as provided in this Agreement.

17. License Grant to You

Subject to your compliance with this Agreement, Besanna hereby grants you a personal, limited, non-exclusive, revocable, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Besanna App on a single mobile device that you own or control and to run such copy of the Besanna App. You will not: (a) modify, copy or create any derivative works based on the Besanna App; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Besanna App available to any third party; (c) reverse engineer or decompile any portion of the Besanna App; (d) access or use (or allow a third party to access or use) the Besanna App for competitive analysis or to build any competing products or services; (e) copy any features, functions, integrations, interfaces or graphics of the Besanna App; or (f) otherwise use or exploit the Besanna App in any manner not expressly permitted by this Agreement. Furthermore, with respect to any app accessed through or downloaded from the App Store, you will comply with the applicable App Store’s terms and policies. You will be entitled to download updates to the Besanna App, subject to any additional terms made known to you at that time, when Besanna makes these updates available. You may be required to accept updates to the Besanna App in order to continue to use the Besanna App.

18. Restrictions on Use

You may use the Besanna App only to the extent that you obey all laws, rules, and regulations applicable to your use of the Besanna App. While we want you to enjoy the Besanna App, you may not, nor may you permit any third party to do any of the following: (i) access or monitor any material or information on any Besanna system using any manual process or robot, spider, scraper, or other automated means; (ii) copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material or information from Besanna; (iii) permit any third party to use or benefit from the Besanna App via a rental, lease, timesharing, service bureau or other arrangement; (iv) transfer any rights granted to you under this Agreement; (v) violate the restrictions in any robot exclusion headers on the Besanna App or any Besanna service or product, work around, bypass, or circumvent any of the technical limitations of the Besanna App, use any tool to enable features or functionalities that are otherwise disabled in the Besanna App, or decompile, disassemble or otherwise reverse engineer the Besanna App; (vi) perform or attempt to perform any actions that would interfere with the proper working of the Besanna App, prevent access to or use of the Besanna App by other users, or impose an unreasonable or disproportionately large load on our infrastructure; or (vii) otherwise use the Besanna App except as expressly permitted herein.

19. Ownership

The Besanna App is licensed and not sold. Besanna reserves all rights not expressly granted to you in this Agreement. The Besanna App is protected by copyright, trade secret and other intellectual property laws. Besanna owns the title, copyright and other worldwide intellectual property rights in the Besanna App and all copies of the Besanna App. This Agreement does not grant you any rights to Besanna’s trademarks or service marks.

20. Feedback

You may choose to or we may invite you to submit comments or ideas about the Besanna App, including without limitation about how to improve the Besanna App or our other products (“Feedback“). You represent and warrant that you have all rights necessary to submit Feedback. By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited, and without restriction, that it will not place Besanna under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Besanna does not waive any rights to use similar or related ideas previously known to Besanna or developed by its employees, or obtained from sources other than you. Besanna has no obligation to review any Feedback nor to keep any Feedback confidential, and Besanna may use and redistribute Feedback for any purpose, without restriction and free of any obligation to acknowledge or compensate you.

21. Indemnification

You agree to release, indemnify, defend, and hold harmless Besanna and its affiliates and their respective employees, officers, agents, directors, representatives, contractors, licensors, suppliers and service providers (collectively, the “Besanna Parties”) from and against any and all third-party claims asserted against and of them, and all related costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of or relating to: (a) any actual or alleged breach by you of this Agreement; (b) your access to or use of the Besanna App; or (c) any actual or alleged violation by you of the intellectual property, privacy or other rights of third party. This provision does not require you to indemnify any of the Besanna Parties to the extent that a claim arises from any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Besanna App.

Notwithstanding the foregoing paragraph, if you are a resident of New Jersey, you only agree to release, defend, indemnify, and hold harmless the Besanna Parties from and against any and all third-party claims asserted against and of them, and all related costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of or relating to any actual or alleged breach by you of this Agreement.

Besanna reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Besanna in asserting any available defense and doing so will not otherwise excuse your indemnity obligations.

22. Representation and Warranties

You represent and warrant to us that: (a) you are at least eighteen (18) years of age (or as otherwise provided in Section 6 above); (b) you are eligible to register and use the Besanna App and have the right, power, and ability to enter into and perform under this Agreement; (c) the name identified by you when you registered is your name or business name; (d) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you and/or your business, including any applicable tax laws and regulations; (e) you will not use the Besanna App, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Besanna App; and (f) your use of the Besanna App will be in compliance with this Agreement.

23. Disclaimer of Warranties and Conditions

YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE BESANNA APP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND YOUR USE OF THE BESANNA APP IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE BESANNA APP IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BESANNA OR THROUGH THE BESANNA APP WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, BESANNA, ITS PROCESSORS, ITS PROVIDERS, ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) DO NOT WARRANT THAT ANY CONTENT OR INFORMATION PROVIDED THROUGH THE BESANNA APP, INCLUDING, WITHOUT LIMITATION, ANY BUSINESS LISTINGS, OR RATINGS, REVIEWS OR METRICS FOUND ON, USED ON, OR MADE AVAILABLE THROUGH THE BESANNA APP, IS ACCURATE, RELIABLE OR CORRECT; THAT THE BESANNA APP WILL MEET YOUR REQUIREMENTS; THAT THE BESANNA APP WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE BESANNA APP IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE AND AGREE THAT BESANNA IS NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE BESANNA APP’S INOPERABILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES, OR FROM YOUR RELIANCE ON THE QUALITY, ACCURACY, OR RELIABILITY OF ANY CONTENT DOWNLOADED OR OTHERWISE MADE AVAILABLE THROUGH USE OF THE BESANNA APP, INCLUDING, WITHOUT LIMITATION, ANY BUSINESS LISTINGS, RATINGS, REVIEWS OR METRICS FOUND ON, USED ON, OR MADE AVAILABLE THROUGH THE BESANNA APP. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE BESANNA APP, OR THE CONTENT OR SERVICES MADE AVAILABLE THROUGH THE BESANNA APP SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE BESANNA APP.

BESANNA DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE BESANNA APP OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND BESANNA WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

24. Limitation of Liability and Damages

YOU UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BESANNA, ITS PROCESSORS, ITS SUPPLIERS, OR ITS LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE BESANNA APP. UNDER NO CIRCUMSTANCES WILL BESANNA BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE BESANNA APP, YOUR BESANNA APP ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BESANNA, ITS PROCESSORS, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE BESANNA APP; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE BESANNA APP; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE BESANNA APP BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE BESANNA APP; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL BESANNA, ITS PROCESSORS, AGENTS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING $500.

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF BESANNA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. THIS LIMITATION OF LIABILITY SHALL APPLY FULLY TO NEW JERSEY RESIDENTS.

The Besanna App is controlled and operated from facilities in the United States. Besanna makes no representations that the Besanna App is appropriate or available for use in other locations. Those who access or use the Besanna App from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Besanna App if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Besanna App are solely directed to individuals, companies, or other entities located in the United States.

25. Arbitration Agreement

This Section 25 includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully. You may opt out of the arbitration agreement by following the opt out procedure described below.

Informal Process First

You agree that in the event of any dispute between you and Besanna, you will first contact Besanna and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.

Arbitration Agreement

Besanna’s other services and/or products, including the Services, or relating in any way to the communications between you and Besanna or any other user of the Services, will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to you and Besanna. However, this arbitration agreement does not (a) govern any Claim by Besanna for infringement of its intellectual property or access to the Services that is unauthorized or exceeds authorization granted in these Terms or (b) bar you from making use of applicable small claims court procedures in appropriate cases.

Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration. Instead, the dispute is resolve by a neutral arbitrator. Court review of an arbitration award is limited. Except to the extent the parties agree otherwise, arbitrators can award the same damages and relief that a court can award. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Besanna are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision will survive any termination of these Terms.

If you wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, you must send a letter requesting arbitration and describing your claim to Besanna, LLC, 30 N Gould St, Suite R, Sheridan WY 82801. The arbitration will be administered by the American Arbitration Association (AM) under its rules including, if you are an individual, the AM’s Supplementary Procedures for Consumer-Related Disputes. If you are not an individual or have used the Services on behalf of an entity, the MA’s Supplementary Procedures for Consumer-Related Disputes will not be used. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879.

The number of arbitrators will be one. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The arbitration will be conducted in the English language. Utah law will apply. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

Payment of all filing, administration and arbitrator fees will be governed by the AM’s rules. If you are an individual and have not accessed or used the Services on behalf of an entity, we will reimburse those fees for claims totaling less than $10,000, unless the arbitrator determines the claims are frivolous, and we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence will not apply to the “Class Action Waiver” section below.

If you do not want to arbitrate disputes with Besanna and you are an individual, you may opt out of this arbitration agreement by sending an email to legal@besanna.com within thirty (30) days of the first of the date you access or use the Services.

Class Action Waiver

Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). You expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration.

If this class action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, will be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If for any reason a claim proceeds in court rather than in arbitration, you and Besanna each waive any right to a jury trial.

26. Exclusive Venue

To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Besanna agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Utah.

27. Governing Law

This Agreement any action related thereto will be governed and interpreted by and under the laws of the state of Utah, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

29. Limitation on Time to Initiate a Dispute

Unless otherwise required by law, an action or proceeding by you relating to any dispute must commence within one (1) year after the cause of action accrues. Notwithstanding the foregoing, this statute of limitations shall not apply to residents of New Jersey.

30. Right to Amend

We may, in our sole discretion, change or add to the terms of this Agreement at any time, and change, delete, discontinue, or impose conditions on any feature or aspect of the Besanna App. We will also update the “Last Updated” date at the top of this Agreement. Any use of the Besanna App after our publication of any such changes shall constitute your acceptance of this Agreement as modified. If you do not agree to any changes, you must stop using the Besanna App, and you can terminate your Besanna App Account by emailing hello@besanna.com. It is your obligation to ensure that you read, understand and agree to the latest version of this Agreement.

31. Assignment

This Agreement, and any rights and licenses granted hereunder, may not be transferred, delegated or assigned by you, but may be assigned, transferred or delegated by Besanna without restriction. This Agreement is binding on the parties and their successors and permitted assigns.

32. Third-Party Services and Links

Through the Besanna App, you may be offered and given access to services, products and promotions provided by third parties and not by Besanna (“Third Party Services”). If you decide to access or use these Third Party Services you will be responsible for reviewing and understanding the terms and conditions associated with these services. You agree that Besanna is not responsible for the performance of these services or the acts or omissions of the entities that provide them. The Besanna App may contain links to third-party websites as a convenience to you. The inclusion of any website link does imply an approval, endorsement, or recommendation by Besanna. You agree that you access any such website at your own risk, and that the site is not governed by the terms and conditions contained in this Agreement.

Besanna expressly disclaims any liability for these websites and the acts and omissions of the entities that provide them. Please remember that when you use a link to go from our website to another website, our Privacy Policy is no longer in effect. Your browsing and interaction on any other website, including those that have a link in the Besanna App, is subject to that digital property’s own rules and policies.

33. Questions, Complaints, Claims

If you have any questions, complaints or claims with respect to the Besanna App, please contact us at hello@besanna.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

34. Electronic Communications

The communications between you and Besanna use electronic means, whether you visit the Besanna App or send Besanna emails, or whether Besanna posts notices on the Besanna App or communicates with you via email. For contractual purposes, you (1) consent to receive communications from Besanna in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Besanna provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.

35. Release

You hereby release Besanna and its successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Besanna App, including but not limited to, any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of the Besanna App. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by Besanna or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Besanna App.

36. Consumer Complaints

In accordance with Utah Civil Code, you may report complaints to the Division of Consumer Protection of the Utah Department of Commerce by contacting them in writing at 160 East 300 South, 2nd Floor, P.O. Box 146704, Salt Lake City, UT 84114 or by FAX to 801-530-6001.

37. General Provisions

Except as expressly provided in this Agreement, this Agreement a complete statement of the agreement between you and Besanna, and describes the entire liability of Besanna and its vendors and suppliers (including processors) and your exclusive remedy with respect to your access and use of the Besanna App. Besanna shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. In the event of a conflict between this Agreement and any other Besanna agreement or policy, this Agreement shall prevail on the subject matter of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Besanna. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. The Agreement does not limit any rights that Besanna may have under trade secret, copyright, patent, or other laws. Besanna’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.

38. Survival

In addition to any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement, the following sections of this Agreement survive and remain in effect in accordance with their terms upon the termination of this Agreement: 8, 10-15, 18, 21-33, 35, 36, 38 and 39.

39. The Besanna App Is Not a Substitute for Medical Advice

YOU ACKNOWLEDGE THAT THE BESANNA APP IS NOT A DIAGNOSTIC DEVICE AND THAT THE SERVICES ARE NOT INTENDED FOR USE IN THE DIAGNOSIS, CURE, MITIGATION, TREATMENT OR PREVENTION OF DISEASE OR OTHER CONDITIONS. The Besanna App is provided for informational purposes only and is not intended to replace a physician or other medical provider. We are not a licensed medical care provider and do not claim expertise in diagnosing, examining, or treating medical conditions of any kind, or in determining the effect of any specific nutritional supplement on a medical condition. Consult your doctor for proper prevention, diagnosis, and treatment of any medical condition and DO NOT DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE IN RELIANCE ON THE SERVICES. If you think you may have a medical emergency, call your physician or 911 immediately. If you feel discomfort or pain, immediately stop the activity causing such discomfort or pain. Use of the Besanna App should not replace your good judgment and common sense. Besanna has the right, but not the obligation, to monitor all conduct on and content submitted to the Besanna App.

40. Transfer of account

A Subscriber may transfer the Besanna scanner hardware to a third party under the following terms and conditions: (i) the new subscriber agrees to the then-current Terms of Service as set forth in this document; (ii) the new subscriber meets the qualifications as described in this agreement; (iii) the new subscriber must register with Besanna, including providing initial and ongoing payment arrangements; and, (iv) warranty will transfer to the third-party subscriber only if the transfer occurs within the initial 1-year warranty term after the original sale by Besanna to the initial purchaser and the warranty will be in effect only until the 1-year anniversary of the original sale.