Bennie Health, Inc. (“Bennie,” “we,” “us,” “our”) provides its services (described below) to you through its website at http://bennie.com, its mobile applications and related services (collectively, such services, including any new features and applications, the “Service”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Service user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Service or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
Service Description: The Service is designed to allow you to access information about your employee benefits provided by your employer that has engaged Bennie as its benefits provider. You can make changes to your benefits, update personal information, and contact third parties with questions about your benefits through the Service.
Medical Advice Disclaimer: Any information made available through the Service is not intended or implied to be a substitute for professional medical advice, diagnosis or treatment. All content, including text, graphics, images and information, contained on or available through the Service is for general information purposes only. Bennie makes no representation and assumes no responsibility for the accuracy of information contained on or available through the Service, and such information is subject to change without notice. You are encouraged to confirm any information obtained from or through the Service with other sources, and review all information regarding any medical condition or treatment with your physician. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY SEEKING MEDICAL TREATMENT BECAUSE OF SOMETHING YOU HAVE READ ON OR ACCESSED THROUGH THE SERVICE.
Bennie is not authorized to provide medical services or advice requiring any type of professional medical licensure. Bennie does not recommend, endorse or make any representation about the efficacy, appropriateness or suitability of any specific tests, products, procedures, treatments, Service, opinions, health care providers or other information that may be contained on or available through the Service. Bennie IS NOT RESPONSIBLE NOR LIABLE FOR ANY ADVICE, COURSE OF TREATMENT, DIAGNOSIS OR ANY OTHER THIRD PARTY INFORMATION, SITE OR PRODUCTS THAT YOU OBTAIN THROUGH THE SERVICE.
If you think you or someone using the Service may have a medical emergency, call a doctor, your local emergency number, or 911 immediately.
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Bennie of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Bennie will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to Service: Bennie reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Bennie will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
General Practices Regarding Use and Storage: You acknowledge that Bennie may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Bennie’s servers on your behalf. You agree that Bennie has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Bennie reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Bennie reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Mobile Services: The Service includes certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Bennie account information to ensure that your messages are not sent to the person that acquires your old number.
When you use the Service or send e-mails to us, you are communicating with us electronically and you consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Service. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
By using the Service, you acknowledge and agree that Bennie may send e-mails relating to your account. You can opt out of your subscription to Bennie’s e-mail services at any time by logging in to the Service and changing your notification preferences. You can also unsubscribe to special promotional e-mails at any time by clicking on the unsubscribe link in any of our e-mail communications under opt-in preferences.
By using the Service and opting to receive emails, text messages, and electronic communications, you acknowledge and agree that Bennie will be transmitting certain protected health information (“PHI”) as that term is defined under HIPAA, electronically. You acknowledge and agree that while Bennie takes commercially reasonable steps to protect the privacy and security of PHI, no system is completely secure. You may choose not to receive emails or text messages by unsubscribing.
You acknowledge and agree that you are solely responsible for providing Bennie with accurate contact information, including your mobile device number and email address, where we may send communications containing PHI. Bennie is not responsible for user errors and omissions.
Insurance Related Content: As part of the Service, Bennie may provide you with summary information about the insurance plans offered by your employer or available to you individually via third-parties, and your enrollment status in these plans. The information displayed on Bennie is summarized and is not intended to replace the insurance policy documents issued by each insurer, nor the enrollment records maintained by each insurer. If there is ever any discrepancy between the insurance plan or policy information displayed on Bennie, and the insurance plan or policy information detailed in the insurance carrier’s plan documents, the insurance carrier’s plan documents or records will govern. Bennie is not an insurer and does not issue insurance policies or pay claims.
Health Related Content: Any health-related information, data, software, photographs, graphics, videos, text, images, typefaces, sounds and other material residing on the Service describes general principles of health care that should not be construed as specific instructions for individual patients. It is not intended as a substitute for a consultation between patients and their health care provider, and should not be used to diagnose or treat a health problem without consulting a qualified health care provider. It is for reference only and should not be used to determine treatment for specific medical conditions—only a health care provider can do that. You understand and agree that in no event will Bennie be liable for any decision made or action taken in reliance on the information contained on, or accessible through, the Service. Reliance on any information provided by, or otherwise appearing on, the Service is solely at your own risk.
Medical Network Disclaimer: As part of the Service, Bennie may provide you with third party information about healthcare provider and facility network participation with your health plan (for example, providing information about which doctors or facilities participate with the health plan offered by your employer). Bennie makes no guarantee about the accuracy of this network information, the accuracy of claims processing by your health insurer, or the accuracy of billing by your healthcare provider. A healthcare provider or facility’s network contract is between the provider/facility and the insurer alone, and may change without notice. It is always recommended that you consult your healthcare provider to confirm network status before receiving any medical services.
Medical Advice Disclaimer: AS FURTHER SPECIFIED HEREIN, YOU ACKNOWLEDGE AND AGREE THAT BENNIE DOES NOT PROVIDE ANY MEDICAL DIAGNOSIS OR TREATMENT SERVICES OR ADVICE AND DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, GUARANTEES OR ENDORSEMENTS REGARDING ANY MEDICAL INFORMATION THAT YOU MAY OBTAIN THROUGH THE SERVICE. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY SEEKING MEDICAL TREATMENT BECAUSE OF SOMETHING YOU HAVE READ ON OR ACCESSED THROUGH THE SERVICE. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL A DOCTOR, YOUR LOCAL EMERGENCY NUMBER, OR 911 IMMEDIATELY.
NO HEALTH CARE PROVIDER/ PATIENT RELATIONSHIP IS CREATED BETWEEN BENNIE AND AN INDIVIDUAL WHEN AN INDIVIDUAL USE THE SERVICE. BENNIE IS NEITHER RESPONSIBLE NOR LIABLE FOR ANY ADVICE, COURSE OF TREATMENT, DIAGNOSIS OR ANY OTHER THIRD PARTY INFORMATION, SITE, PRODUCT, OR SERVICE THAT IS PURCHASED OR ACCESSED THROUGH THE SERVICE.
User Conduct: You agree to use the Service only as directed and approved in support of the Service. Bennie reserves the right to investigate and take appropriate legal action against anyone who, in Bennie’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:
Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content
US Use Only; Governing Law: This Service is hosted in the United States and are intended only for users located in the United States. Bennie makes no representation that the materials are appropriate or available for use outside the United States. If you access our Service from outside the United States, you will be responsible for compliance with all local laws. You agree to comply with all laws and regulations applicable to your use of our Service. Note also that information submitted by you to us may be transmitted to and shared with third parties located in other countries, in order to provide Service to you.
Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use.
Bennie offers Software applications that may be made available through the Apple App Store, the Google Play Store or other distribution channels (“Distribution Channels”). If you obtain such Software through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. These Terms of Service are between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third party products and services in connection with your use of our Service, you agree to comply with all applicable terms of any agreement for such third party products and services.
With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
Bennie Health, Inc.
200 Broadway, 3rd FL
New York, NY 10038
Bennie and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Bennie, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Bennie from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith are the property of Bennie, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Bennie.
The Bennie name and logos are trademarks and service marks of Bennie (collectively the “Bennie Trademarks”). Other business, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Bennie. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Bennie Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Bennie Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will Bennie be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for 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 such content. You acknowledge that Bennie does not pre-screen content, but that Bennie and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Bennie and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Bennie, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content
User Content Transmitted Through the Service: With respect to the content, data, information or other materials you upload through the Service or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content you hereby grant and will grant Bennie and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service in any form, medium or technology now known or later developed.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to Bennie are non-confidential and Bennie will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you
You acknowledge and agree that Bennie may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Bennie, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
To provide and process the Service to you, Bennie shares your personally identifiable information with our authorized service providers that perform certain services or functions on our behalf. Bennie may be required by law to disclose information you have provided in using the Service. Bennie may also disclose information where someone poses a threat to Bennie’s interests (such as user fraud) or whose activities could bring harm to others. In addition, it may be necessary in the reasonable opinion of officials of Bennie that certain information be provided to third parties, such as law enforcement authorities or governing bodies for a particular health care provider. In the event that Bennie receives a court order to disclose information on the Service about you or your activities on the Service, you agree that such information may be disclosed.
You may request that we update or change the information you provided to us or to receive a copy of the information we have stored by emailing us at Support@Bennie.com or by updating the information in your profile. We will make every reasonable effort to honor your wishes, or provide you with an explanation of why we cannot make the changes requested. We may request proof of identity before updating any information.
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Bennie has no control over such sites and resources and Bennie is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Bennie will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Bennie is not liable for any loss or claim that you may have against any such third party.
In addition, Bennie is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with these third parties. As such, Bennie is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third parties. Bennie enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
You agree to release, indemnify and hold Bennie and its affiliates and their officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: “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.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine. IN NO EVENT WILL YOU HAVE ANY OBLIGATION TO INDEMNIFY ANY INDEMNITEE FOR ANY LOSS, LIABILITY OR EXPENSE ARISING FROM ANY NEGLIGENT, GROSSLY NEGLIGENT, RECKLESS, WILLFUL, FRAUDULENT OR INTENTIONAL CONDUCT COMMITTED BY SUCH INDEMNITEE. ANY OBLIGATION TO INDEMNIFY AN INDEMNITEE FOR ANY LOSS, LIABILITY OR EXPENSE ARISING FROM ANY NEGLIGENT, GROSSLY NEGLIGENT, RECKLESS, WILLFUL, FRAUDULENT OR INTENTIONAL CONDUCT COMMITTED BY ANY INDEMNITEE IS NOT ENFORCEABLE AGAINST ANY USER OF THE SERVICE FROM NEW JERSEY.
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BENNIE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
BENNIE MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT BENNIE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BENNIE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL BENNIE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID BENNIE IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
a. Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Bennie, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Service, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Bennie are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
b. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND BENNIE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND BENNIE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
c. Pre-Arbitration Dispute Resolution
Bennie is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at Support@Bennie.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Bennie should be sent to 200 Broadway, 3rd Floor, New York, NY 10038 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Bennie and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Bennie may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Bennie or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Bennie is entitled.
d. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Bennie and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Bennie agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e. Costs of Arbitration Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Bennie will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Bennie will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Bennie will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
f. Confidentiality All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
g. Severability If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.
h. Future Changes to Arbitration Agreement Notwithstanding any provision in this Terms of Service to the contrary, Bennie agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Service, you may reject any such change by sending Bennie written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
You agree that Bennie, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Bennie believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Bennie may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Bennie may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Bennie will not be liable to you or any third party for any termination of your access to the Service.
These Terms of Service constitute the entire agreement between you and Bennie and govern your use of the Service, superseding any prior agreements between you and Bennie with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service will be governed by the laws of the State of New York without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Bennie agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within New York County, New York. The failure of Bennie to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of Bennie, but Bennie may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Bennie Health, Inc., [200 Broadway, 3rd Floor, New York, NY 10038]
Please contact us at Support@bennie.com to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.