Béa Fertility Terms of Service

Welcome, and thank you for your interest in StepOne Fertility, Inc. d/b/a Béa Fertility (“Béa,” “we,” or “us”) and our website at https://beafertility.com, along with our related websites, hosted applications, mobile or other downloadable applications, and other services provided by us (collectively, the “Platform”). These Terms of Service are a legally binding contract between you and Béa regarding your use of the Platform.

PLEASE READ THE FOLLOWING TERMS CAREFULLY:

BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE PLATFORM, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING BÉA’S PRIVACY POLICY (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE PLATFORM. YOUR USE OF THE PLATFORM, AND BÉA’S PROVISION OF THE PLATFORM TO YOU, CONSTITUTES AN AGREEMENT BY BÉA AND BY YOU TO BE BOUND BY THESE TERMS.

YOU AGREE TO RECEIVE TEXTS/CALLS FROM OR ON BEHALF OF BÉA AT THE PHONE NUMBER YOU PROVIDE TO US. THESE TEXTS/CALLS WILL INCLUDE OPERATIONAL USE OF THE PLATFORM. YOU UNDERSTAND AND AGREE THAT THESE TEXTS/CALLS MAY BE CONSIDERED TELEMARKETING UNDER APPLICABLE LAW, THEY MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT A CONDITION OF ANY PURCHASE.

ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 16 (Dispute Resolution and Arbitration), you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND BÉA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.

1. Béa Platform Overview. The Platform provides at-home fertility treatment and ovulation tracking services to qualifying users. We may permit you to purchase our proprietary applicator (the “Béa Applicator”) or other fertility-related products (“Products”) through the Platform (each such purchase of Products, an “Order”). The Béa Applicator is cleared by the U.S. Food and Drug Administration (“FDA”) as a medical device, indicated for over-the-counter home use by couples who have been unable to conceive naturally and who have received a diagnosis of low sperm count, sperm immobility or unfavorable vaginal environment. As part of the Platform, you may also be able to receive access to certain coaching services provided by third-party independent contractors engaged by Béa, including medical professionals and fertility coaches (“Coaching Services”). For clarity, while you may access Coaching Services via the Platform, a software technology, the Platform itself does not include Coaching Services or any of the healthcare professionals providing Coaching Services.

1.1 Informational Only. Neither Béa nor the Platform provides any medical advice. The information made available via the Platform is not a substitute for any professional medical advice. All information or content provided on our Platform, including information about our company, product, or other related services, is for general informational purposes only. You should always seek the advice of a qualified healthcare professional with any questions you may have regarding your health. Healthcare professionals should exercise their own professional judgment when using any content on our Platform. While we attempt to keep all the information on the Platform up-to-date, information can change quickly, and the information and content that you find on our Platform should not be considered error-free or as a comprehensive source of all information on a particular topic. We do not warrant that any information or content provided on our Platform is accurate, complete or useful to you. Any reliance you place on such information is strictly at your own risk. We assume no responsibility for any consequences relating directly or indirectly to any action or inaction you may take based upon the information and materials on our Platform.

1.2 No Doctor-Patient Relationship. Use of our Platform does not create a doctor-patient relationship. No information contained on the Platform is intended to be used for medical diagnosis or treatment. You acknowledge and agree that none of the information or content provided on the Platform has the ability to diagnose, prescribe, or perform any tasks that constitute the practice of medicine.

1.3 Use by Patients and Consumers. IN THE CASE OF A HEALTH EMERGENCY, SEEK IMMEDIATE ASSISTANCE FROM A HEALTHCARE PROFESSIONAL. YOU SHOULD NEVER DELAY OBTAINING MEDICAL ADVICE OR DISREGARD ANY MEDICAL ADVICE BECAUSE OF SOMETHING YOU HAVE OR HAVE NOT READ ON OUR PLATFORM. If you are a patient or a healthcare consumer, you should not use any information found on our Platform to replace your relationship with your healthcare professional, and you should not rely on any such information as professional medical advice. If you have any questions regarding your health or a medical condition, including whether a product or service is appropriate for you or the result of using any product described on our Platform, you should always seek the advice of your physician or other qualified healthcare professional.

1.4 Product and Service Information. Features and specifications of any products or services described on our Platform are subject to change at any time without notice. Your use of any of the products or services described on our Platform is subject to additional disclaimers and terms and conditions that accompany each product.

1.5 Coaching Services Provided by Independent Contractors. Neither Béa nor the Platform provides any medical services. The Platform may include access to one or more professional medical organizations or medical groups, which are independent third-party medical providers or healthcare professionals (“Providers”) who provide Coaching Services. Accessing the Platform or using the Béa Applicator alone does not create any patient-provider relationship. THE PLATFORM IS NOT RESPONSIBLE OR LIABLE FOR ANY MEDICAL ADVICE, COURSE OF TREATMENT, DIAGNOSIS OR ANY OTHER INFORMATION, SERVICES OR PRODUCTS THAT YOU MAY OBTAIN THROUGH THE PROVIDERS.

1.6 Independent Medical Judgment of Providers. The Platform and Béa are not licensed to practice medicine and do not provide any healthcare services, including Coaching Services. You understand and agree that Béa and its Platform are not responsible for Coaching Services provided by a Provider, including any personal injury or property damage. Béa does not exercise control over the means, methods or manner by which any medical professional exercises professional judgment in the provision of their professional healthcare services. Similarly, we are not responsible for the quality or appropriateness of the care any Provider renders to you during any Coaching Services, including any personal injury or property damage. These third-party Providers are solely responsible and liability for their professional services.

2. Eligibility

2.1 General. You must be at least 18 years old to use the Platform. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Platform; and (c) your registration and your use of the Platform is in compliance with any and all applicable laws and regulations.

2.2 Initial Consultation. Prior to receiving access to the Platform or being able to Order a Product, you may need to undergo an initial consultation with a Provider provided by Béa to determine your eligibility for the Platform. If the medical professional determines that you are ineligible, then you will not be able to Order any Product or purchase any Coaching Services.

2.3 Data Sharing With Your Treating Physician. If your primary care physician or other treating physician recommended use of the Béa Applicator or the Platform, we may send your treating physician data about your use of the Platform, including User Content (defined below) on a quarterly or similar basis, subject to our Privacy Policy.

3. Accounts and Registration. To access most features of the Platform, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at support@beafertility.com.

4. General Payment Terms. Certain features of the Platform may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. Unless otherwise specifically provided for in these Terms, all fees are in U.S. Dollars and are non-refundable, except as required by law.

4.1 Price. Béa reserves the right to determine pricing for the Platform. Béa will make reasonable efforts to keep pricing information published on the Platform up to date. We encourage you to check our pricing page periodically for current pricing information. Béa may change the fees for any feature of the Platform, including for Coaching Services, or any other additional fees or charges, if Béa gives you advance notice of changes before they apply. Béa, at its sole discretion, may make promotional offers with different features and different pricing to any of Béa’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.

4.2 Ordering Products. After your initial consultation, you may place an Order on the Platform by clicking on the Product you wish to purchase and then following the prompts. You may check and correct any input errors in your Order up until the point at which you submit your Order to us. After placing an Order, you will receive an acknowledgment from us that we have received your Order and give you an Order reference number (“Order Confirmation”). We will use commercially reasonable efforts to ensure that your Order will be fulfilled by the delivery date set out in the Order Confirmation. Your Order will be sent to the delivery address specified by you in the Order. Deliveries made to your door or mailbox and may require your signature. Any Products purchased by you will ship FOB (Incoterms 2020). Title to the Products will pass to you on delivery, provided that you have made full payment of all amounts due for the Products, including any delivery charges.

4.3 Coaching Services. Coaching Services may be offered by Providers you may connect via the Platform and will be for the duration and on the terms as set forth by us. You may only purchase additional Coaching Services if you have been deemed eligible during your initial consultation and have placed an Order for a Product. We may make available additional Coaching Services in our sole discretion. All Coaching Services are conducted by third-party Providers, and not Béa.

4.4 Authorization. You authorize Béa to charge all sums for the orders that you make and any level of Platform you select as described in these Terms or published by Béa, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, then Béa may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.

4.5 Delinquent Accounts. Béa may suspend or terminate access to the Platform, including fee-based portions of the Platform, for any account for which any amount is due but unpaid. In addition to the amount due for the Platform, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees. If your payment method is no longer valid at the time a fee is due, then Béa reserves the right to delete your account and any information or User Content (defined below) associated with your account without any liability to you.

5. Licenses

5.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Béa grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile or other downloadable application associated with the Platform (whether installed by you or pre-installed on your mobile device by the device manufacturer or a wireless telephone provider) on a mobile device that you own or control; and (b) access and use the Platform.

5.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Platform; (b) make modifications to the Platform; or (c) interfere with or circumvent any feature of the Platform, including any security or access control mechanism. If you are prohibited under applicable law from using the Platform, then you may not use it.

5.3 Feedback. We respect and appreciate the thoughts and comments from our users. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Platform (“Feedback”), then you hereby grant Béa an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Platform and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.

6. Ownership; Proprietary Rights. The Platform is owned and operated by Béa and its affiliates. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Platform provided by Béa (“Materials”) are protected by intellectual property and other laws. All Materials included in the Platform are the property of Béa or its third-party licensors. Except as expressly authorized by Béa, you may not make use of the Materials. There are no implied licenses in these Terms and Béa reserves all rights to the Materials not granted expressly in these Terms.

7. Third-Party Terms

7.1 Third-Party Platforms and Linked Websites. Béa may provide tools through the Platform that enable you to export information, including User Content, to third-party services, including Coaching Services. By using one of these tools, you hereby authorize that Béa to transfer that information to the applicable third-party service. Third-party services are not under Béa’s control, and, to the fullest extent permitted by law, Béa is not responsible for any third-party service’s use of your exported information. The Platform may also contain links to third-party websites. Linked websites are not under Béa’s control, and Béa is not responsible for their content. Please be sure to review the terms of use and privacy policy of any third-party services before you share any User Content or information with such third-party services. Once sharing occurs, Béa will have no control over the information that has been shared.

7.2 Third-Party Medical Providers. Béa engages Providers as third-party medical professionals to certain services on the Platform, including the Coaching Services. In order to receive access to any of these services, you may need to agree to third-party terms before receiving access. The Coaching Services are between you and the Provider, and not Béa. Any disputes arising during Coaching Services will be between you and the Provider. While we may, in our discretion, help facilitate resolution of disputes, we have no control over the quality of medical care offered by a Provider. While we may provide pricing and guidance for Coaching Services on our Platform, such information is solely informational. We do not have control over the quality, timing, legality, failure to provide, or any aspect whatsoever of any services provided by Providers during Coaching Services. Béa AND THE PLATFORM ARE NOT MEDICAL PROVIDERS. YOU AGREE THAT WE WILL NOT BE A PARTY TO OR HAVE ANY RESPONSIBILITY OR LIABILITY FOR, ARISING OUT OF, RELATING TO, ASSOCIATED WITH OR RESULTING FROM ANY DISPUTES BETWEEN YOU AND ANY THIRD PARTY WITH RESPECT TO THE COACHING SERVICES.

7.3 Third-Party Software. The Platform may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Platform is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.

8. User Content

8.1 User Content Generally. Certain features of the Platform may permit users to submit, upload, publish, broadcast, or otherwise transmit (“Post”) content to the Platform, including messages, reviews, photos, video or audio (including sound or voice recordings embodied in the video or audio), images, folders, data, text, and any other works of authorship or other works (“User Content”). You retain any copyright and other proprietary rights that you may hold in the User Content that you Post to the Platform, subject to the licenses granted in these Terms.

8.2 Limited License Grant to Béa. By Posting User Content to or via the Platform, you grant Béa a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to host, store, transfer, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and distribute your User Content, including to share User Content with your primary care physician upon request.

8.3 You Must Have Rights to the Content You Post; User Content Representations and Warranties. You must not Post User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content. Béa disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Platform. By providing User Content via the Platform, you affirm, represent, and warrant to us that:
(a) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Béa and users of the Platform to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Béa, the Platform, and these Terms;
(b) your User Content, and the Posting or other use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Béa to violate any law or regulation; and
(c) your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.

8.4 User Content Disclaimer. We are under no obligation to edit or control User Content that you Post and will not be in any way responsible or liable for User Content. Béa may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Béa with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Béa does not permit infringing activities on the Platform.

8.5 Monitoring Content. Béa does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Platform by its users. You acknowledge and agree that Béa reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Platform for operational and other purposes. If at any time Béa chooses to monitor the content, then Béa still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy (defined below). Béa may block, filter, mute, remove or disable access to any User Content uploaded to or transmitted through the Platform without any liability to the user who Posted such User Content to the Platform or to any other users of the Platform.

9. Communications

9.1 Text Messaging and Video Calls. You agree that Béa and those acting on our behalf may video call and send you text (SMS) messages at the phone number you provide us. These calls and messages may include operational calls or messages about your use of the Platform, including the Coaching Services, as well as marketing texts. Text messages may be sent using an automatic telephone dialing system. Your agreement to receive marketing calls and texts is not a condition of any purchase on or use of the Platform.

Standard data and message rates may apply whenever you send or receive such calls or messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF MARKETING TEXT MESSAGES FROM BÉA, YOU CAN EMAIL SUPPORT@BEAFERTILITY.COM OR TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. IF YOU WISH TO OPT OUT OF ALL CALLS AND TEXT MESSAGES FROM BÉA, YOU CAN EMAIL SUPPORT@BEAFERTILITY.COM OR TEXT THE WORD “STOPALL” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE PLATFORM. You may continue to receive text messages for a short period while we process your request, including a message confirming the receipt of your opt-out request.

9.2 Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when you are not in the app. You can turn off notifications by visiting your mobile device’s “settings” page.

9.3 Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.

10. Prohibited Conduct. BY USING THE PLATFORM, YOU AGREE NOT TO:

10.1 use the Platform for any illegal purpose or in violation of any local, state, national, or international law;

10.2 violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;

10.3 access, search, or otherwise use any portion of the Platform through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Béa;

10.4 interfere with security-related features of the Platform, including by: (i) disabling or circumventing features that prevent or limit use, printing or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Platform except to the extent that the activity is expressly permitted by applicable law;

10.5 interfere with the operation of the Platform or any user’s enjoyment of the Platform, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Platform; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Platform;

10.6 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Platform account without permission;

10.7 sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6 (Ownership; Proprietary Rights)) or any right or ability to view, access, or use any Materials; or

10.8 attempt to do any of the acts described in this Section 10 (Prohibited Conduct) or assist or permit any person in engaging in any of the acts described in this Section 10 (Prohibited Conduct).

11. Modification of Terms. We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept modified Terms in order to continue to use the Platform. If you do not agree to the modified Terms, then you should remove your User Content and discontinue your use of the Platform. Except as expressly permitted in this Section 11 (Modification of Terms), these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.

12. Term, Termination, and Modification of the Platform

12.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Platform, and ending when terminated as described in Section 12.2 (Termination).

12.2 Termination. If you violate any provision of these Terms, then your authorization to access the Platform and these Terms automatically terminate. In addition, Béa may, at its sole discretion, terminate these Terms or your account on the Platform, or suspend or terminate your access to the Platform, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination. You may terminate your account and these Terms at any time by using the methods identified on the Platform or by contacting customer service at support@beafertility.com.

12.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Platform; (b) you will no longer be authorized to access your account or the Platform; (c) you must pay Béa any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.3 (Feedback), 6 (Ownership; Proprietary Rights), 12.3 (Effect of Termination), 13 (Indemnity), 14 (Disclaimers; No Warranties by Béa), 15 (Limitation of Liability), 16 (Dispute Resolution and Arbitration), and 17 (Miscellaneous) will survive. You are solely responsible for retaining copies of any User Content you Post to the Platform since upon termination of your account, you may lose access rights to any User Content you Posted to the Platform. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Platform using a different name, email address or other forms of account verification.

12.4 Modification of the Platform. Béa reserves the right to modify or discontinue all or any portion of the Platform at any time (including by limiting or discontinuing certain features of the Platform), temporarily or permanently, without notice to you. Béa will have no liability for any change to the Platform, including any paid-for functionalities of the Platform, or any suspension or termination of your access to or use of the Platform. You should retain copies of any User Content you Post to the Platform so that you have permanent copies in the event the Platform is modified in such a way that you lose access to User Content you Posted to the Platform.

13. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Platform, and you will defend and indemnify Béa, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Béa Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Platform; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.

14. Disclaimers; No Warranties by Béa

14.1 THE PLATFORM, THE PRODUCTS, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE PLATFORM ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. BÉA DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE PLATFORM, THE PRODUCTS, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE PLATFORM, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. BÉA DOES NOT WARRANT THAT THE PLATFORM OR ANY PORTION OF THE PLATFORM, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE PLATFORM, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND BÉA DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

14.2 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE PLATFORM, THE PRODUCTS, THE COACHING SERVICES, OR BÉA ENTITIES NOR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE PLATFORM WILL CREATE ANY WARRANTY REGARDING ANY OF THE BÉA ENTITIES OR THE PLATFORM THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE PLATFORM AND YOUR DEALING WITH ANY OTHER PLATFORM USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE PLATFORM AND ANY PRODUCTS, MATERIALS, OR CONTENT RECEIVED THROUGH ANY PORTION OF THE PLATFORM AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE PLATFORM) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.

14.3 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 14 (DISCLAIMERS; NO WARRANTIES BY BÉA) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Béa does not disclaim any warranty or other right that Béa is prohibited from disclaiming under applicable law.

15. Limitation of Liability

15.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE BÉA ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE PLATFORM OR ANY MATERIALS OR CONTENT ON THE PLATFORM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY BÉA ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

15.2 EXCEPT AS PROVIDED IN SECTIONS 16.5 (COMMENCING ARBITRATION) AND 16.7 (ARBITRATION RELIEF) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE BÉA ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE PLATFORM OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO BÉA FOR ACCESS TO AND USE OF THE PLATFORM IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (B) US$100.

15.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 (LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

16. Dispute Resolution and Arbitration

16.1 Generally. Except as described in Section 16.2 (Exceptions) and 16.3 (Opt-Out), you and Béa agree that every dispute arising in connection with these Terms, the Platform, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.

YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND BÉA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

16.2 Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.

16.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 16 (Dispute Resolution and Arbitration) within 30 days after the date that you agree to these Terms by sending a letter to StepOne Fertility, Inc. d/b/a Béa Fertility, Attention: Legal Department – Arbitration Opt-Out, 169 Madison Ave. Suite 15723 New York, NY 10016 that specifies: your full legal name, the email address associated with your account on the Platform, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Béa receives your Opt-Out Notice, this Section 16 (Dispute Resolution and Arbitration) will be void and any action arising out of these Terms will be resolved as set forth in Section 17.2 (Governing Law). The remaining provisions of these Terms will not be affected by your Opt-Out Notice.

16.4 Arbitrator. This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the JAMS under the rules applicable to consumer disputes (collectively, “JAMS Rules”) as modified by these Terms. The JAMS Rules and filing forms are available online at www.jamsadr.com, by calling the JAMS at +1-800-352-5267 or by contacting Béa.

16.5 Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Béa’s address for the Notice of Arbitration is: StepOne Fertility, Inc. d/b/a Béa Fertility, 169 Madison Ave. Suite 15723 New York, NY 10016. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Béa may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, Béa will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if Béa has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the JAMS Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS Rules and the other party may seek reimbursement for any fees paid to JAMS.

16.6 Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your residence unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the JAMS Rules in the county (or parish) of your residence. During the arbitration, the amount of any settlement offer made by you or Béa must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.

16.7 Arbitration Relief. Except as provided in Section 16.8 (No Class Actions), the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Béa before an arbitrator was selected, Béa will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator’s award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator’s application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.

16.8 No Class Actions. YOU AND BÉA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Béa agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

16.9 Modifications to this Arbitration Provision. If Béa makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Béa’s address for Notice of Arbitration, in which case your account with Béa will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

16.10 Enforceability. If Section 16.8 (No Class Actions) or the entirety of this Section 16 (Dispute Resolution and Arbitration) is found to be unenforceable, or if Béa receives an Opt-Out Notice from you, then the entirety of this Section 16 (Dispute Resolution and Arbitration) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 17.2 (Governing Law) will govern any action arising out of or related to these Terms.

17. Miscellaneous

17.1 General Terms. These Terms, including the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Béa regarding your use of the Platform. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms and all rights granted under these Terms, including with respect to your User Content, at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

17.2 Governing Law. These Terms are governed by the laws of Delaware without regard to conflict of law principles. You and Béa submit to the personal and exclusive jurisdiction of the state and federal courts of Wilmington County, Delaware for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Platform from our offices in New York, NY, and we make no representation that Materials included in the Platform are appropriate or available for use in other locations.

17.3 Privacy Policy. Please read the Béa Privacy Policy (the “Privacy Policy”) carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Béa Privacy Policy is incorporated by this reference into, and made a part of, these Terms.

17.4 Additional Terms. Your use of the Platform is subject to all additional terms, policies, rules, or guidelines applicable to the Platform or certain features of the Platform that we may post on or link to from the Platform (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.

17.5 Consent to Electronic Communications. By using the Platform, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

17.6 Contact Information. The Platform is offered by StepOne Fertility, Inc. d/b/a Béa Fertility, located at 169 Madison Ave. Suite 15723 New York, NY 10016. You may contact us by sending correspondence to that address or by emailing us at support@beafertility.com.

17.7 Notice to California Residents. If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Platforms of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Platform or to receive further information regarding use of the Platform.

17.8 No Support. We are under no obligation to provide support for the Platform. In instances where we may offer support, the support will be subject to published policies.

17.9 International Use. The Platform is intended for visitors located within the United States. We make no representation that the Platform is appropriate or available for use outside of the United States. Access to the Platform from countries or territories or by individuals where such access is illegal is prohibited.

18. Notice Regarding Apple. This Section 18 (Notice Regarding Apple) only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Béa only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Platform or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Platform. If the Platform fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Platform. Apple is not responsible for addressing any claims by you or any third party relating to the Platform or your possession and/or use of the Platform, including: (1) product liability claims; (2) any claim that the Platform fails to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Platform and/or your possession and use of the Platform infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Platform. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.