To the extent permitted by applicable law, 4D reserves the right to refuse, modify, suspend or terminate any of its services in its sole discretion in whole or in part.
Terms of Service
BEFORE SUBSCRIBING TO 4D HEALTHWARE’S SERVICES, PLEASE READ OUR TERMS CAREFULLY. YOU WILL NEED TO INDICATE YOUR AGREEMENT TO THESE TO TERMS TO BECOME A 4D SUBSCRIBER.
By clicking below, I am acknowledging that I have read and understood and agree to the Terms of Service, consent pursuant to all applicable federal and state laws related to the disclosure of personal health information provided to 4D (to the extent I have provided personal health information to 4D), agree to keep all information provided to 4D current and up to date, and agree to the payment terms as contained in the Terms of Service.
1. Services. The 4D Healthware (4D) website, www.4dhealthware.com, allows you to upload information from various devices that track fitness metrics and biometric statistics that can then to be viewed and analyzed using 4D’s proprietary software. This Subscriber Agreement covers the services 4D provides using its proprietary software, including collecting and storing the information you provide to us and giving you a summary view of that information; 4D also makes available information that may generally be helpful to you in considering medical and fitness advice you receive or may want to seek from healthcare professionals, and facilitates healthcare providers’ ability to monitor patients’ progress and medial statistics (“Services”). The Services do not include providing, and are not a replacement for, medical advice, and should not be used to diagnose or determine treatment for any condition without the advice of a doctor. Always check with a doctor before beginning a fitness regimen and discuss with your doctor any information that you receive from 4D that may suggest certain changes in your routines or healthcare before making any changes. 4D is the owner of all information and data uploaded to its website or accessed through the use of the Services.
2. Your 4D Account. Before you can use the Services, you will need to create an account with 4D and make payment (see below). You will be asked to create a password that will allow you to control access to your information and 4D strongly recommends that you periodically reset your password and that you not disclose it to others. You agree that the only information you provide to 4D and upload through our website will be your information. Your 4D subscription is personal to you and cannot be transferred to any other person. You should not allow others to use the devices with information being uploaded to 4D as that could result in inaccurate information being provided to you and/or your healthcare professionals. You acknowledge and agree that 4D has no control over the services provided to or withheld from you based on the information uploaded to 4D and/or analyzed or aggregated by it.
3. Supported Devices. The devices that 4D supports are listed on our website, www.4dhealthware.com (“Supported Devices”). The list of Supported Devices is subject to change without notice and the decision concerning devices that may be added or Supported Devices that no longer supported is solely within 4D’s discretion. The subscription fee allows you to upload information from as many Supported Devices as you want. 4D does not refund any Subscription Fees when Supported Devices are discontinued.
4. User Information. Federal and state laws place certain limitations on the ways in which your personal information can be used and disclosed without permission. By becoming a subscriber and/or providing information to 4D, you expressly consent to the information you provide to 4D and any information 4D collects from you or which is related to you (both as provided by you and as aggregated and analyzed by 4D) being:
• disclosed to the healthcare professionals that you allow to access your information,
• aggregated, consolidated and analyzed by 4D in a form which does not include your identity, and as aggregated and analyzed, being distributed to third parties.
• disclosed as otherwise allowed under all federal and state laws that require such consent.
5. Service Limitations. The Services may not always be available due to communications failures, device incompatibility or unavailability, system maintenance or Internet service disruptions. 4D is not responsible for (i) lost or corrupted data, (ii) errors, inaccuracies or omissions in the data, (iii) use of or reliance on the information you provide, or which we have on record, or any other information accessed by, provided or available to any person or entity accessing or attempting to access information collected or stored by 4D, (iv) errors, delays, inaccuracies, or omissions in the processing or transmission of data, or (v) any unauthorized access to a subscriber’s information, even if we have been advised of the possibility of damages resulting from any of these occurrences.
6. Payment. Our subscription fees are shown on the 4D website. 4D reserves the right to increase or decrease its fees at any time or to add services that require the payment of an additional fee(s). Once you have paid a subscription fee for a certain period, no increase will be effective until the end of the subscription period for which you have paid, except for additional services that you may want to that become available after the start of your subscription or renewal period. If 4D lowers its subscription rates, you will not be entitled to the lower rate if your subscription started or was renewed prior to the date on which the rates were reduced. You can cancel your subscription at any time, but no portion of the subscription fee will be refunded.
You can pay by credit card or PayPal. By authorizing 4D to charge your credit card, you are authorizing 4D to continue to charge your credit card (or a replacement card, if the credit-issuing entity informs 4D that a replacement card has been issued) for the initial subscription fee and any renewals. If you do not wish to renew your subscription, please contact 4D by phone at ____________ or by email __________, at least five business days prior to the date your subscription would renew. If you do not advise us that you want to cancel your subscription or not renew it, your subscription will automatically be renewed at 4D’s then-applicable fees.
7. Your Feedback. Any feedback, suggestions and ideas (“Feedback”) that you provide to 4D through any media, including suggestions and ideas regarding the Services and/or the 4D website, will belong to 4D and may be used by 4D without any compensation owed to you or any third party.
8. Liability Release. 4D MAKES NO REPRESENTATIONS OR WARRANTIES THAT YOUR OR ANY SUBSCRIBERS’ INFORMATION WILL BE ACCESSIBLE AT ALL TIMES, WILL BE SECURE OR THAT THE INFORMATION A YOU OR ANY OTHER SUBSCRIBER POSTS TO AND/OR WHICH IS ACCESSIBLE THROUGH OR TRANSMITTED BY 4D (WHETHER STORED ON A SERVER RUN BY 4D OR ANOTHER SERVICE PROVIDER) WILL BE AVAILABLE, SECURE OR UNCORRUPTED. 4D WILL HAVE NO LIABILITY FOR ANY PRODUCTS OR SERVICES OR NONPROVISION OF PRODUCTS OR SERVICES PROVIDED TO OR WITHHELD FROM YOU AS A RESULT OF USING THE 4D WEBSITE, PRODUCTS OR SERVICES OR BEING A 4D SUBSCRIBER.
4D is not responsible for any nonsubscription or nonrenewal of your subscription due the denial of any charge to your credit, debit or charge card, PayPal or bank account or other account, or if it does not have accurate payment information as of the date your subscription or any renewal expires.
9. Disclaimer of Warranty. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, 4D EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, 4D MAKES NO WARRANTIES THAT: (I) THE PRODUCTS OR SERVICES WILL MEET A SUBSCRIBER’S REQUIREMENTS; (II) THE PRODUCTS OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCTS OR SERVICES WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY SERVICES, PRODUCTS OR INFORMATION PURCHASED, PROVIDED OR OBTAINED BY YOU OR ON YOUR BEHALF THROUGH 4D OR THE PRODUCTS OR SERVICES IT OFFERS OR PROVIDES WILL MEET YOUR EXPECTATIONS; AND/OR (V) ANY ERRORS IN THE PRODUCTS OR SERVICES WILL BE CORRECTED. THE USE OF THE PRODUCTS OR SERVICES IS AT YOUR OWN DISCRETION AND RISK. THE SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY. 4D DOES NOT WARRANT ANY THIRD PARTY SERVICES OR PRODUCTS.
10. Limitation of Liability. 4D WILL HAVE NO LIABILITY FOR ANY INJURY OR DAMAGES RELATED TO YOUR USE OR NONUSE OF THE SERVICES OR INFOMRAITON AVAILABLE THROUGH THE WEBSTIE OR OTHERWISE PROVIDED BY 4D, OR FOR ANY ADVICE OR TREATMENT OR LACK OF TREATMENT RECEIED.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL 4D BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, INDIRECT OR SIMILAR DAMAGES, INCLUDING ANY DAMAGES RELATED TO ADVICE OR TREATMENT RECEIED OR LACK OF TREATMENET NOT RECEIED, ANY PRODUCTS OR SERVICES OR NONPROVISION OF PRODUCTS OR SERVICES PROVIDED TO OR WITHHELD FROM YOU, THE USE OR MISUSE OF YOUR INFORMATION, LOST WAGES OR OTHER ECONOMIC LOSS, OR DAMAGE TO PROPERTY ARISING OUT OF THE PROVISION OR NONPROVISION OF SERVICES OR PRODUCTS, EVEN IF 4D HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE FOLLOWING LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
IN NO CASE SHALL 4D’S LIABILITY ARISING OUT OF, RELATING TO OR IN ANY WAY CONNECTED WITH YOUR SUBSCRIPTION, THE RENEWAL OR NONRENEWAL THEREOF, OR YOUR USE OR NONUSE OF THE 4D PRODUCTS, SERVICES, WEBSITE, OR THE USE OF OR INABILITY TO ACCESS OR USE THE INFORMATION PROVIDED TO 4D EXCEED THE GREATER OF THE PRICE YOU PAID TO 4D FOR THE SERVICES IN THE TWELVE MONTHS PRIOR TO THE DATE ON WHICH YOU ADVISED 4D OF YOUR CLAIM OR ONE HUNDRED DOLLARS (U.S. $100.00). THIS LIMITATION WILL NOT APPLY TO A SUBSCRIBER’S NONPAYMENT OF AMOUNTS OWED TO 4D. THE LIMITATIONS OF LIABILITY CONTAINED HEREIN WILL APPLY TO ALL LIABILITY FOR ANY CLAIMS ASSERTED THAT ARISES OUT OF THE SAME FACTS OR OCCURRENCE.
You acknowledge that you have not entered into this Subscriber Agreement in reliance upon any warranty or representation of any kind by 4D or on behalf of 4D. You agree that 4D has no liability for any errors, omissions or inaccuracies in any information that you provide or that is accessed through 4D.
11. Dispute Resolution.
MANDATORY ARBITRATION: Any dispute or claim (“Claim”) arising out of or relating to this Subscriber Agreement, the products or services provided or to be provided by 4D, including the Services, or the relationship of the parties, will be resolved through binding arbitration administered by the American Arbitration Association (“AAA”), under the AAA Consumer Rules in effect at the time a demand for arbitration is filed with the AAA (“AAA Rules”). Copies of the AAA Rules and forms are available at www.adr.org, or by calling 1-800-778-7879. The Claim shall be heard by one arbitrator whose decision shall be final, binding, and non-appealable. Judgment upon the award may be entered and enforced in any court having jurisdiction. This Subscriber Agreement involves products and services in interstate commerce and shall be governed by the Federal Arbitration Act. The arbitrator, and not any federal, state, or local court or other tribunal, shall have exclusive authority to resolve any dispute relating to the interpretation of this Subscriber Agreement, any alleged unconscionability, arbitrability, enforceability, or formation of this Subscriber Agreement including any claim that all or any part of the Agreement is void or voidable. Neither party shall bring any action against the other except as provided herein, or to enforce this clause or of the arbitrator’s award. Notwithstanding the foregoing, (i) the arbitrator will have no authority in relation to considering the validity of the clause entitled “Class Action Waiver”, including but not limited to its unconscionability or voidability, (ii) 4D may join you as a party in any suit brought be someone else that relates to your being, or having been, a subscriber or having used the 4D website, and (iii) 4D may assert any claims it may have against you in any suit which you or a third party bring that involves the subject matter of this Subscriber Agreement or 4D’s services or products, including the Services. In ruling, the arbitrator will apply, and rule consistent with, applicable law and will have no authority to award damages that the parties have agreed are limited as to amount, disclaimed, excluded or not otherwise recoverable under this Subscriber Agreement.
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”). The parties expressly waive any ability to maintain any Class Action in any forum, including but not limited to, in arbitration. The arbitrator shall 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 this Subscriber Agreement. 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 THEY WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE THEIR CASE AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, THEY UNDERSTAND AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY, THROUGH ARBITRATION.
The terms of your use and subscription to 4D will be governed by the laws of the State of Illinois without regard to or application of conflicts of law rules or principles. This is the entire agreement between you and 4D relating to the Services and your use of the 4D website, and: (i) supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter; and (ii) prevails over any conflicting or additional terms of any quote, order, acknowledgment, or similar communications between the parties. If any part of these Terms of Service is determined to be invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the remaining provisions of these Terms of Service will remain in full force and effect. These terms may be changed by posting such changed terms on the 4D website; no other notice of changed terms is required, so please check for changes to these terms. Any notice that 4D gives to you may be sent to the email address for you that 4D has on record. The disclaimers of warranties and damages and limitations on liability and dispute resolution, including mandatory arbitration and class action waiver, set forth above shall survive termination of your subscription or use of any of the 4D Services. If you have any questions concerning these Terms of Service, or if you want to contact 4D for any reason, please write to: