TERMS OF SERVICE AND USE

Effective Date: May 21, 2024

Welcome, and thanks for your interest in Hera Fertility! Hera offers a simple and effective way to test sperm, determine potential issues, and provide personalized opportunities to improve fertility. We are honored to provide a seamless sample collection process, actionable data, personalized insights, and comprehensive coaching and telehealth services to support you on your fertility journey.

These terms of service and the Hera Fertility Data Privacy Policy found at https://herafertility.com/data-privacy-policy (collectively: “The Agreement” or “Agreement”) is a binding agreement between you (“End User” or “you”) and Hera Fertility Inc. (“Company”, “Hera”, “we”, or “us”).

This Agreement governs your use of the Hera YO Sperm Test mobile application (the “Application”, “Hera App”) in connection with the Hera YO Sperm Test Kit (the “Kit”), as well as Hera's coaching and telehealth services.

When used as intended, a user is provided a mobile app (“The App”) with a Kit and detailed instructions (the “Test Kit Instructions”) to conduct a home sperm quality test, analyze a semen sample (the “Sample”), and provide a report on a person’s Motile Sperm Concentration (“MSC”), fertility score (“YO SCORE”) as well as a live video of the user’s sperm cells (collectively, the “Results”). Additionally, users can access personalized coaching and telehealth services for further support and guidance.

BY INSTALLING OR USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT; (B) CONFIRM AND REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.

Hera may, in its sole discretion, modify or revise these Terms of Service and policies at any time, and you agree to be bound by such modifications or revisions. Nothing in these Terms of Service shall be deemed to confer any third-party rights or benefits. Although we may attempt to notify you when major changes are made to The Agreement, you should periodically review the most up-to-date version posted on the website: www.herafertility.com.

THE APPLICATION AND SERVICES.
(a) This agreement is meant to cover the use of the App, the Kit, and Hera’s coaching and telehealth services (collectively, “The Service”). It applies to all users of the App, the Kit, and the services provided by Hera.

(b) Insofar as The Service uses, now or in the future, third parties that are not owned or controlled by Hera, you confirm that you are aware and agree that Hera has no control over, and assumes no responsibility for the quality, content, privacy policies, or practices of any third parties. By using the Service, you expressly relieve Hera from any and all liability arising from your use of any third-party services.

(c) YOU ACKNOWLEDGE AND AGREE THAT YOU WILL FOLLOW THE TEST KIT INSTRUCTIONS AND USE IT AS INTENDED, INCLUDING ITS EXPRESS WARNINGS REGARDING THE BIOLOGICAL HAZARDS ASSOCIATED WITH COLLECTING, HANDLING, AND DISPOSING OF THE SAMPLE, WHICH INCLUDE, BUT ARE NOT LIMITED TO, THE POTENTIAL TRANSMISSION OF SEXUALLY TRANSMITTED DISEASES. The Application and the Kit are meant to be used together. You agree that you will not use the application without the Kit or with any Kit other than a Kit purchased from the Company’s website www.herafertility.com or other authorized dealers.

(d) YOU AGREE TO INDEMNIFY AND DEFEND COMPANY FROM ANY AND ALL THIRD-PARTY CLAIMS ARISING OUT OR CONNECTED WITH YOUR FAILURE TO FOLLOW THE TEST KIT INSTRUCTIONS OR FAILURE TO USE A KIT PROVIDED BY HERA, AND HOLD COMPANY HARMLESS FROM ANY AND ALL DAMAGES, COSTS, EXPENSES (INCLUDING ATTORNEYS’ FEES), AND LIABILITIES THAT MAY RESULT THEREFROM.

HERA ACCOUNT AND LICENSE TO USE THE SERVICE
(a) Subject to the terms of this Agreement, Hera grants you a limited, non-exclusive, and non-transferable license to download, install and use the Application for your personal, non-commercial use on a single mobile or personal computer device owned or otherwise controlled by you (“Mobile Device”) as long as the Application is being used alongside a Kit purchased from Hera as described hereinabove.

(b) In order to access some features of the Service, including coaching and telehealth services, you may need to create a Hera Account on the App and/or the Hera website. You may never use another’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Hera immediately of any breach of security or unauthorized use of your account.

(c) Although Hera will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Hera or others due to such unauthorized use.

(d) If we disable your account, you will not create another one without our permission.

(e) If you select a username or similar identifier for your account, we reserve the right to remove or reclaim it if we believe it is appropriate (such as when a trademark owner complains about a username that does not closely relate to a user’s actual name).

(f) The Content on the Service, and the trademarks, service marks, and logos (“Marks”) on the Service, are owned by or licensed to Hera, subject to copyright and other intellectual property rights under the law.

(g) Content is provided to you AS IS. You may access Content for your information and personal use solely as intended through the provided functionality of the Service and as permitted under these Terms of Service. You shall not download any Content unless you see a “download” or similar link displayed by Hera on the Service for that Content. You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of Hera or the respective licensors of the Content. Hera and its licensors reserve all rights not expressly granted in and to the Service and the Content.

(h) Users and non-users who interact with the Service outside the United States consent to having their personal data transferred to and processed in the United States. Users located in a country embargoed by the United States, or who are on the U.S. Treasury Department’s list of Specially Designated Nationals, will not engage in commercial activities on the Service (such as advertising or payments). You will not use the Service if you are prohibited from receiving products, services, or software originating from the United States.

(i) Hera reserves the right to discontinue any aspect of the Service at any time.

RESTRICTIONS ON YOUR USE OF THE SERVICE AND HERA ACCOUNTS.
You shall not:

(a) Copy the Application, any parts of the Hera website, any content thereof, or any telehealth and coaching materials;

(b) Distribute any contents you have accessed via the Service in any medium any part of the Service or the Content without Hera’s prior written authorization except as permitted by the App flow, options, or instructions.

(c) Modify, translate, adapt, alter or create derivative works or improvements, whether or not patentable, of the Application;

(d) Try to access or access the Service through any technology or means other than a browser or mobile phone.

(e) Use the Service in any way other than as intended.

(f) Allow others to use your account or the Service.

(g) Use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that accesses the Service in a manner that sends more request messages to the Hera servers in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser. Hera reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Service, nor to use the communication systems provided by the Service (e.g., comments, email) for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Service.

(h) If you download or use Hera software, such as an app or a browser plugin, you agree that from time to time, the software may download and install upgrades, updates and additional features from Hera in order to improve, enhance, and further develop the software. You will not modify, create derivative works of, decompile, or otherwise attempt to extract source code from Hera, unless Hera gives you express written permission.

(i) Break any law in your use of the service.

(j) Reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Application or any part thereof; and

(k) Remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Application, including any copy thereof.

(l) Try to circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content therein.

(m) Use Hera’s copyrights or Trademarks or any confusingly similar marks, except as expressly permitted by our published policies or with our prior written permission.

Last updated: May 21, 2024

This Privacy Policy describes how Hera Fertility (the "Site", "we", "us", or "our") collects, uses, and discloses your personal information when you visit, use our services, or make a purchase from herafertility.co (the "Site") or otherwise communicate with us (collectively, the "Services"). For purposes of this Privacy Policy, "you" and "your" means you as the user of the Services, whether you are a customer, website visitor, or another individual whose information we have collected pursuant to this Privacy Policy.

Please read this Privacy Policy carefully. By using and accessing any of the Services, you agree to the collection, use, and disclosure of your information as described in this Privacy Policy. If you do not agree to this Privacy Policy, please do not use or access any of the Services.

We may update this Privacy Policy from time to time, including to reflect changes to our practices or for other operational, legal, or regulatory reasons. We will post the revised Privacy Policy on the Site, update the "Last updated" date and take any other steps required by applicable law.

To provide the Services, we collect and have collected over the past 12 months personal information about you from a variety of sources, as set out below. The information that we collect and use varies depending on how you interact with us.

In addition to the specific uses set out below, we may use information we collect about you to communicate with you, provide the Services, comply with any applicable legal obligations, enforce any applicable terms of service, and to protect or defend the Services, our rights, and the rights of our users or others.

The types of personal information we obtain about you depends on how you interact with our Site and use our Services. When we use the term "personal information", we are referring to information that identifies, relates to, describes or can be associated with you. The following sections describe the categories and specific types of personal information we collect.

Information that you directly submit to us through our Services may include:

• Basic contact details including your name, address, phone number, email.
  
• Order information including your name, billing address, shipping address, payment confirmation, email address, phone number.
  
• Account information including your username, password, security questions.
  
• Shopping information including the items you view, put in your cart or add to your wishlist.
  
• Customer support information including the information you choose to include in communications with us, for example, when sending a message through the Services.
  

Some features of the Services may require you to directly provide us with certain information about yourself. You may elect not to provide this information, but doing so may prevent you from using or accessing these features.

We also automatically collect certain information about your interaction with the Services ("Usage Data"). To do this, we may use cookies, pixels and similar technologies ("Cookies"). Usage Data may include information about how you access and use our Site and your account, including device information, browser information, information about your network connection, your IP address and other information regarding your interaction with the Services.

Finally, we may obtain information about you from third parties, including from vendors and service providers who may collect information on our behalf, such as:

• Companies who support our Site and Services, such as Shopify.
  
• Our payment processors, who collect payment information (e.g., bank account, credit or debit card information, billing address) to process your payment in order to fulfill your orders and provide you with products or services you have requested, in order to perform our contract with you.
  
• When you visit our Site, open or click on emails we send you, or interact with our Services or advertisements, we, or third parties we work with, may automatically collect certain information using online tracking technologies such as pixels, web beacons, software developer kits, third-party libraries, and cookies.
  

Any information we obtain from third parties will be treated in accordance with this Privacy Policy. We are not responsible or liable for the accuracy of the information provided to us by third parties and are not responsible for any third party's policies or practices. For more information, see the section below, Third Party Websites and Links.

• Providing Products and Services. We use your personal information to provide you with the Services in order to perform our contract with you, including to process your payments, fulfill your orders, to send notifications to you related to you account, purchases, returns, exchanges or other transactions, to create, maintain and otherwise manage your account, to arrange for shipping, facilitate any returns and exchanges and to enable you to post reviews.
  
• Marketing and Advertising. We use your personal information for marketing and promotional purposes, such as to send marketing, advertising and promotional communications by email, text message or postal mail, and to show you advertisements for products or services. This may include using your personal information to better tailor the Services and advertising on our Site and other websites.
  
• Security and Fraud Prevention. We use your personal information to detect, investigate or take action regarding possible fraudulent, illegal or malicious activity. If you choose to use the Services and register an account, you are responsible for keeping your account credentials safe. We highly recommend that you do not share your username, password, or other access details with anyone else. If you believe your account has been compromised, please contact us immediately.
  
• Communicating with you. We use your personal information to provide you with customer support and improve our Services. This is in our legitimate interests in order to be responsive to you, to provide effective services to you, and to maintain our business relationship with you.
  

Like many websites, we use Cookies on our Site. For specific information about the Cookies that we use related to powering our store with Shopify, see https://www.shopify.com/legal/cookies. We use Cookies to power and improve our Site and our Services (including to remember your actions and preferences), to run analytics and better understand user interaction with the Services (in our legitimate interests to administer, improve and optimize the Services). We may also permit third parties and services providers to use Cookies on our Site to better tailor the services, products and advertising on our Site and other websites.

Most browsers automatically accept Cookies by default, but you can choose to set your browser to remove or reject Cookies through your browser controls. Please keep in mind that removing or blocking Cookies can negatively impact your user experience and may cause some of the Services, including certain features and general functionality, to work incorrectly or no longer be available. Additionally, blocking Cookies may not completely prevent how we share information with third parties such as our advertising partners.

In certain circumstances, we may disclose your personal information to third parties for legitimate purposes subject to this Privacy Policy. Such circumstances may include:

• With vendors or other third parties who perform services on our behalf (e.g., IT management, payment processing, data analytics, customer support, cloud storage, fulfillment and shipping).
  
• With business and marketing partners, including Shopify, to provide services and advertise to you. Our business and marketing partners will use your information in accordance with their own privacy notices.
  
• When you direct, request us or otherwise consent to our disclosure of certain information to third parties, such as to ship you products or through your use of social media widgets or login integrations, with your consent.
  
• With our affiliates or otherwise within our corporate group, in our legitimate interests to run a successful business.
  
• In connection with a business transaction such as a merger or bankruptcy, to comply with any applicable legal obligations (including to respond to subpoenas, search warrants and similar requests), to enforce any applicable terms of service, and to protect or defend the Services, our rights, and the rights of our users or others.
  

We have, in the past 12 months disclosed the following categories of personal information and sensitive personal information (denoted by *) about users for the purposes set out above in "How we Collect and Use your Personal Information" and "How we Disclose Personal Information":

• Identifiers such as basic contact details and certain order and account information
  
• Commercial information such as order information, shopping information and customer support information
  
• Internet or other similar network activity, such as Usage Data
  

• Vendors and third parties who perform services on our behalf (such as Internet service providers, payment processors, fulfillment partners, customer support partners and data analytics providers)
  
• Business and marketing partners
  
• Affiliates
  

We do not use or disclose sensitive personal information for the purposes of inferring characteristics about you.

The Services may enable you to post product reviews and other user-generated content. If you choose to submit user generated content to any public area of the Services, this content will be public and accessible by anyone.

We do not control who will have access to the information that you choose to make available to others, and cannot ensure that parties who have access to such information will respect your privacy or keep it secure. We are not responsible for the privacy or security of any information that you make publicly available, or for the accuracy, use or misuse of any information that you disclose or receive from third parties.

Our Site may provide links to websites or other online platforms operated by third parties. If you follow links to sites not affiliated or controlled by us, you should review their privacy and security policies and other terms and conditions. We do not guarantee and are not responsible for the privacy or security of such sites, including the accuracy, completeness, or reliability of information found on these sites. Information you provide on public or semi-public venues, including information you share on third-party social networking platforms may also be viewable by other users of the Services and/or users of those third-party platforms without limitation as to its use by us or by a third party. Our inclusion of such links does not, by itself, imply any endorsement of the content on such platforms or of their owners or operators, except as disclosed on the Services.

The Services are not intended to be used by children, and we do not knowingly collect any personal information about children. If you are the parent or guardian of a child who has provided us with their personal information, you may contact us using the contact details set out below to request that it be deleted.

As of the Effective Date of this Privacy Policy, we do not have actual knowledge that we “share” or “sell” (as those terms are defined in applicable law) personal information of individuals under 16 years of age.

Please be aware that no security measures are perfect or impenetrable, and we cannot guarantee “perfect security.” In addition, any information you send to us may not be secure while in transit. We recommend that you do not use unsecure channels to communicate sensitive or confidential information to us.

How long we retain your personal information depends on different factors, such as whether we need the information to maintain your account, to provide the Services, comply with legal obligations, resolve disputes or enforce other applicable contracts and policies.

Depending on where you live, you may have some or all of the rights listed below in relation to your personal information. However, these rights are not absolute, may apply only in certain circumstances and, in certain cases, we may decline your request as permitted by law.

• Right to Access / Know. You may have a right to request access to personal information that we hold about you, including details relating to the ways in which we use and share your information.
  
• Right to Delete. You may have a right to request that we delete personal information we maintain about you.
  
• Right to Correct. You may have a right to request that we correct inaccurate personal information we maintain about you.
  
• Right of Portability. You may have a right to receive a copy of the personal information we hold about you and to request that we transfer it to a third party, in certain circumstances and with certain exceptions.

• Restriction of Processing: You may have the right to ask us to stop or restrict our processing of personal information.
  
• Withdrawal of Consent: Where we rely on consent to process your personal information, you may have the right to withdraw this consent.
  
• Appeal: You may have a right to appeal our decision if we decline to process your request. You can do so by replying directly to our denial.
  
• Managing Communication Preferences: We may send you promotional emails, and you may opt out of receiving these at any time by using the unsubscribe option displayed in our emails to you. If you opt out, we may still send you non-promotional emails, such as those about your account or orders that you have made.
  

You may exercise any of these rights where indicated on our Site or by contacting us using the contact details provided below.

We will not discriminate against you for exercising any of these rights. We may need to collect information from you to verify your identity, such as your email address or account information, before providing a substantive response to the request. In accordance with applicable laws, You may designate an authorized agent to make requests on your behalf to exercise your rights. Before accepting such a request from an agent, we will require that the agent provide proof you have authorized them to act on your behalf, and we may need you to verify your identity directly with us. We will respond to your request in a timely manner as required under applicable law.

If you have complaints about how we process your personal information, please contact us using the contact details provided below. If you are not satisfied with our response to your complaint, depending on where you live you may have the right to appeal our decision by contacting us using the contact details set out below, or lodge your complaint with your local data protection authority.

Please note that we may transfer, store and process your personal information outside the country you live in, including the United States. Your personal information is also processed by staff and third party service providers and partners in these countries.

If we transfer your personal information out of Europe, we will rely on recognized transfer mechanisms like the European Commission's Standard Contractual Clauses, or any equivalent contracts issued by the relevant competent authority of the UK, as relevant, unless the data transfer is to a country that has been determined to provide an adequate level of protection.

Should you have any questions about our privacy practices or this Privacy Policy, or if you would like to exercise any of the rights available to you, please call (888) 850-0919 or email us at [email protected] or contact us at 2093a Philadelphia Pike suite 332, Claymont DE 19703, United States.