Terms of Service
Welcome! 9amHealth is the website and online and/or mobile service operated by 9amHealth Inc. (“Company,” “we,” or “us”). This terms of service is a document that (the “Agreement”) explains the terms by which you may use our online and/or mobile services, our website, and software provided on or in connection with the foregoing, including (i) a tool for access to and interaction with physicians and other health care providers for communication, consultations, assessments and treatment by such health care organizations and their providers (“Visit Service”); (ii) a tool for accessing and interacting with health coaches and educators for communication and consultations (“Coaching Service”); (iii) certain clinical assessment tools and personalized recommendation services (“Assessments”); and (iv) administrative support in connection with scheduling and payment for third-party health care provider, pharmacy and laboratory services (all of the foregoing, collectively, the “Service”). This Agreement applies to all visitors, users, and others who access the Service (“Users”). This Agreement also hereby incorporates by this reference any additional terms and conditions posted by Company through the Service or otherwise made available to you by Company.
We may, in our discretion, modify or update this Agreement from time to time, by posting such changes through the Service or making the changes available through any other reasonable means. Please check back to determine if this Agreement has been changed—the date on which this Agreement was last updated is indicated above. Your continued access to or use of the Service after any such change constitutes your acceptance of the change. No such change will apply retroactively to any dispute that arose before we posted or otherwise made the change available. If you do not agree to any such change, you must stop using the Service.
THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION AND JURY TRIAL WAIVER PROVISION THAT, AS FURTHER SET FORTH BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. AGREEING TO ARBITRATION IS AN IMPORTANT DECISION WHICH YOU SHOULD CAREFULLY CONSIDER.
IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR LOCAL EMERGENCY PHONE NUMBER OR YOUR HEALTHCARE PROVIDER IMMEDIATELY.
BY ACCESSING OR USING THE SERVICE, OR OTHERWISE INDICATING YOUR ASSENT, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT, AND AFFIRMING THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT. BY ACCEPTING THIS AGREEMENT YOU ARE ALSO AGREEING TO RECEIVE COMMUNICATIONS ELECTRONICALLY, AS FURTHER DESCRIBED BELOW.
1. Our Service
As part of the Service, Company provides the Coaching Service and Assessments to help people to make informed health decisions. Additionally, through the use of the Visit Service, the Company enables direct interaction with physicians and other health care providers through sharing of personal health information or through virtual consultation with such physicians or health care providers. The Visit Service is provided through health care providers affiliated with the Company. The Company itself is not a provider of medical advice or a health care provider.
This is a contract between you and Company. You may use the Service only if you can form a binding contract with Company, and only in compliance with this Agreement and all applicable local, state, national, and foreign laws, rules and regulations. Any use or access to the Service by anyone under the age of legal majority in the applicable jurisdiction is prohibited. You may only use the Service if Company has made the Service available in your country; any other use is prohibited. You must not use the Service if you were previously removed from the Service by Company. In addition to the forgoing, you represent and warrant that you are not a resident of (and will not use the Service in) a country that the U.S. government has embargoed for use of the Service, and that you are not named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations.
Any use of the Service by a User that is not eligible under and according to these Terms of Service is prohibited, and we have no responsibility or liability for any such prohibited use.
1.2. Medical Advice through the Visit Service
Do not use the Visit Service for emergency medical needs. If you experience a medical emergency, call your local emergency phone number immediately.
Company does not provide any physicians’ or other healthcare providers’ (collectively, “Providers”) services itself. All of the Providers are independent of Company and are using the Visit Service to communicate with you. Any information or advice received from a Provider comes from the Provider, and not from Company. The Providers, and not Company, are responsible for the quality and appropriateness of any care that they render to you. While Company may facilitate your selection of and communications with Providers, Company does not provide medical services or medical advice, and any doctor-patient relationship is only between you and the applicable Provider. Reliance on any information provided through the Service, or by other members of the Service, is solely at your own risk. Company does not undertake any responsibility in relation to the quality of the medical advice or the manner in which it is provided by doctors or medical organizations.
Neither Company nor any third party is liable for any professional or other advice you obtain from a Provider via the Visit Service, or for any information obtained through the Service. You acknowledge your reliance on any Providers, or information provided by the Visit Service, is solely at your own risk and you assume full responsibility for all risk associated therewith. You hereby certify that you are physically located in the state you have entered as your current location for the Visit Service. You acknowledge that your ability to access and use the Visit Service is conditioned upon the truthfulness of this certification, and that the Providers you access through the Visit Service are relying upon this certification in order to interact with you. In the event that your certification is inaccurate, you agree to indemnify Company and the Providers you interact with from any resulting damages, costs, or claims.
ALL OF THE MATERIAL PROVIDED THROUGH THE SERVICE (EXCEPT AS PROVIDED BY A PROVIDER, AS DEFINED BELOW, THROUGH THE VISIT SERVICE), SUCH AS TEXT, GRAPHICS, PHOTOGRAPHS, IMAGES, MESSAGES, FORUM POSTINGS, AND ANY OTHER MATERIALS, IN CONNECTION WITH THE COACHING SERVICE OR OTHERWISE, ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE OR TREATMENT. EVEN WHEN THE COACHING SERVICE OR ASSESSMENTS ARE BASED ON CLINICAL PROTOCOLS, SUCH COACHING SERVICE AND ASSESSMENTS DO NOT CONSTITUTE MEDICAL CARE, ADVICE OR DIAGNOSIS. IN CASES WHERE PROVIDERS ARE NOT PROVIDING MEDICAL ADVICE THROUGH THE VISIT SERVICE, PLEASE SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER FOR ANY QUESTIONS YOU MAY HAVE REGARDING YOUR HEALTH. COMPANY DOES NOT PROMISE ANY PARTICULAR RESULTS WITH REGARDS TO YOUR HEALTH IN CONNECTION WITH YOUR USE OF THE SERVICE. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR YOUR LOCAL EMERGENCY PHONE NUMBER IMMEDIATELY. The Coaching Service or Assessments may include reference to certain pharmaceuticals. These pharmaceuticals may not be available in all jurisdictions, and in some jurisdictions they may require a prescription or advice regarding the local brand name from an authorized health care professional. We recommend that you use reasonable discretion, and if you do not feel well or if you do not receive feedback within a reasonable time, we recommend that you contact your doctor directly.
1.3. Risks of Telehealth Services
By using the Service, you acknowledge the potential risks associated with telehealth services, including, but not limited to:
- Providers consulting with you through the Service may not have the benefit of information that would be obtained by examining you in person and observing your physical condition. Information transmitted may not be sufficient (e.g. poor resolution of images) to allow for appropriate medical or health care decision making by the Provider;
- Delays in evaluation or treatment could occur due to failures of electronic equipment;
- A lack of access to your medical records may result in adverse drug interactions or allergic reactions or judgment errors;
- Providers utilizing the Service may be limited by state law in prescribing certain medications to you without first conducting an in-person physical examination;
- Although the electronic systems we use incorporate network and software security protocols to protect the privacy and security of health information, those protocols could fail, and there could be a breach of privacy of your health information. Unfortunately, the transmission of information via the Internet is not completely secure. Although we take commercially reasonable steps designed to protect your personal information, we cannot guarantee the security of your personal information transmitted to, or through, our Service. Any transmission of personal information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures employed by the Service.
By using the Service, you acknowledge these limitations, and agree to assume the risk of these limitations. Further, you agree that: (i) any diagnosis you may receive from a Provider is limited and, in some cases, provisional; (ii) the health care services are not intended, in all cases, to replace a full medical evaluation or an in-person visit with a health care provider; (iii) a Provider acting through the Service may not have important information that is usually obtained through a “hands-on” physical examination; and (iv) the absence of a physical examination may affect the Provider’s ability to diagnose any potential condition, disease or injury. Providers reserve the right to deny treatment if they believe a patient may be better served by an in-person health care provider, or for any other reason according to their professional judgment. Company encourages you to provide all relevant information and discuss any and all diagnosis and treatment options with Providers.
1.4. Prescription Policy
Neither Company nor the Providers endorse any specific medication, pharmacy or pharmacologic product. If a Provider prescribes a medication, the Provider may limit supply based upon state regulations, and may only prescribe a medication as determined in their own discretion and professional judgment. COMPANY DOES NOT GUARANTEE THAT ANY PRESCRIPTIONS WILL BE WRITTEN FOR YOU THROUGH THE SERVICE. THE PROVIDERS DO NOT PRESCRIBE DEA CONTROLLED SUBSTANCES, SUCH AS THOSE CONTAINING OPIOIDS OR AMPHETAMINES. PROVIDERS RESERVE THE RIGHT TO DENY CARE FOR ACTUAL OR POTENTIAL MISUSE OF THE SERVICE.
You agree that any prescriptions that you acquire from a Provider will be solely for your personal use. You agree to fully and carefully read all provided product information and labels and to contact a physician or pharmacist if you have any questions regarding the prescription. If you receive a prescription for a medication, you have the option to instruct the applicable Provider to transmit that prescription to the pharmacy of your choice.
1.5. Not an Insurance Product
Neither Company nor the Providers are insurers or are engaged in the business of insurance. Neither this Agreement nor any incorporated terms or conditions are or shall be deemed a contract for insurance. If you desire any type of health or other insurance, you must purchase such insurance separately.
1.6. Limited License
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal, noncommercial use only, to the extent permitted by the features of the Service. Organizations, companies, and/or businesses may not become members and must not use the Service, without express prior written consent from Company. Users with individual commercial interests may not solicit or overtly promote their products or services within the Service. Representatives from life sciences and insurance companies are prohibited from creating accounts or registering for the Service on behalf of their employers, but may use the Service in their personal capacity. You do not have the right to use any content shared within the Service externally. Company reserves all rights not expressly granted herein in the Service and the Company Content (as defined below). Company may terminate this license at any time for any reason or no reason.
Whether you register an account on the Service or use the Service without registering an account, you may access the Service and functionality that we may establish and maintain from time to time and in our sole discretion subject to this Agreement. We may maintain different types of accounts (“User Accounts”) for different types of Users. To access certain features or areas of the Service, you may be required to provide personal and/or demographic information as part of a registration or log-in process. We may reject, or require that you change, any username, password, or other information that you provide to us in registering. By connecting to the Service through a third-party service (such as a social media platform), you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You may never use another Users’ User Account without permission. When creating your User Account, you must provide accurate and complete information, and you must keep this information up to date (this includes your contact information, so that we can reliably contact you). You are solely responsible for the activity that occurs on your User Account, and if you are required to provide a password for your User Account, you must keep it secure. You must notify Company immediately of any breach of security or unauthorized use of your User Account. Company will not be liable for any losses caused by any unauthorized use of your User Account.
By providing Company your email address and other contact information, you consent to our using such contact information to send you Service-related notices by email, or any other contact form you may provide us with (including your phone number for calls or text messages) and you agree to receive such notices. Company is not responsible or liable for any loss, injury, or claim of any kind resulting from your failure to receive or read these communications, or from your failure to comply with any treatment recommendations contained in these communications.
1.8. Changes to the Service
We may, without notice and liability, change the Service, stop providing the Service or certain features of the Service, to you or to Users generally, or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if, in our sole determination, you violate any provision of this Agreement, or for no reason.
1.10. Service Location
The Service is controlled and operated from facilities in the United States. Company makes no representations that the Service is appropriate or available for use in jurisdictions other than the jurisdictions where the Company has made the Service available. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
2. General Disclaimers
This Agreement is for ongoing care under the Membership Plan, as defined below, rendered by the applicable provider entity (“Provider Entity”), and does NOT constitute a medical insurance agreement or health insurance. It does not meet any individual health benefit plan mandate that may be required by federal law. The Service provided under this Agreement is limited to only those specified in this Agreement.
You represent and warrant that you do NOT have an emergent medical problem at this time. In the event of a medical emergency, you must call 911 first.
If the applicable Provider Entity makes an outside referral, you must contact your own insurance provider to obtain coverage. You must contact your health plan to understand the benefits and limitations of any insurance plan you may have, and any overlap between the Provider Entity’s services and such health insurance plan coverage. You acknowledge that the Provider Entity will not file or fight any third-party insurance claims on your behalf.
3. User Content
Some areas of the Service allow Users to submit, post, display, provide, or otherwise make available content such as profile information, comments, questions, and other content or information (any such materials a User submits, posts, displays, provides, or otherwise makes available on the Service is referred to as “User Content”).
WE CLAIM NO OWNERSHIP RIGHTS OVER USER CONTENT CREATED BY YOU. THE USER CONTENT YOU CREATE REMAINS YOURS. However, you understand that if portions of the Service allow other Users to view, edit, share, and/or otherwise interact with your User Content, by providing or sharing User Content through the Service, you agree to allow others to view, edit, share, and/or interact with your User Content in accordance with your settings and this Agreement. Company has no control over and is not responsible for any use or misuse (including any distribution) by any third party of User Content.
By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Company a royalty-free, fully paid-up, sublicensable (through multiple tiers), transferable, perpetual, irrevocable, non-exclusive, worldwide license, without additional consideration to you or any third party, to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, perform and display (publicly or otherwise), adapt, analyze, exploit, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for any purpose (including promotional and marketing purposes). You also hereby grant each User of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under this Agreement. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONALLY IDENTIFIABLE OR OTHER INFORMATION PUBLICLY AVAILABLE THROUGH THE SERVICE, YOU DO SO AT YOUR OWN RISK.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals, and extensions thereof, under the laws of any state, country, territory, or other jurisdiction.
In connection with your User Content, you affirm, represent, and warrant the following:
- You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you and Company from any liability that may arise in relation to such use.
- You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
- Your User Content and Company’s use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
- Company may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
- To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
- If the Service permits interaction with other Users, you are solely responsible for such interactions. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Company shall have no liability for your interactions with other Users, or for any User’s action or inaction.
- Company takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts, sends, or otherwise makes available through the Service. You shall be solely responsible for your User Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Company shall not be liable for any damages you allege to incur as a result of or relating to any User Content. We may (but have no obligation to) monitor, evaluate, alter, or remove User Content before or after it appears on the Service, or analyze your access to or use of the Service, for any or no reason.
4. Acceptable Use
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, disclosing, or exploiting any part of the Service in any medium, including by any automated or non-automated “scraping”; (ii) using any automated system, including “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Company servers than a human can reasonably produce in the same period of time by using a conventional online web browser (except that Company grants the operators of public search engines revocable permission to use spiders to copy publically available materials from Company’s website for the sole purpose of, and solely to the extent necessary for, creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) systematically downloading or storing Service content; (iv) transmitting spam, chain letters, or other unsolicited email; (v) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from, the servers running the Service; (vi) taking any action that imposes, or may impose in our sole discretion, an unreasonable or disproportionately large load on our infrastructure; (vii) uploading invalid data, viruses, worms, or other software agents through the Service; (viii) collecting or harvesting any personally identifiable information, including account names, from the Service; (ix) using the Service for any commercial solicitation purposes; (x) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, or hiding or attempting to hide your identity; (xi) interfering with the proper working of the Service; (xii) reverse engineering, decompiling, or disassembling any part of the Service, except where such restriction is explicitly prohibited by applicable law; (xiii) restricting or inhibiting any other person from using the Service; (xiv) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xv) bypassing the measures we may use to prevent or restrict access to the Service, including features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, fraudulent, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, pornographic, or otherwise objectionable; (vi) contains any information or content that is illegal (including the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current; or (ix) violates any school or other applicable policy, including those related to cheating or ethics. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including any Intellectual Property Rights or rights of privacy.
If the Service permits interaction with other Users, you are solely responsible for such interactions. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Company shall have no liability for your interactions with other Users, or for any User’s action or inaction.
5. Our Proprietary Rights
Except for your User Content, the Service and all materials therein or transferred thereby, including software, images, text, graphics, illustrations, logos, trademarks, service marks, photographs, audio, videos, music, and User Content belonging to other Users (the “Company Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Company and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Company Content. Use of the Company Content for any purpose not expressly permitted by this Agreement is prohibited.
You may choose to, or we may invite you to, submit comments or ideas about the Service, including about how to improve the Service or our products (“Ideas”). By submitting any Idea, such Idea will be deemed User Content, and you hereby agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Company under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submitted Ideas, Company does not waive any rights to use similar or related ideas previously known to Company, or developed by its employees, or obtained from sources other than you.
6. Consent to Receive Calls and Text Messages
By providing your mobile number you hereby affirmatively consent to be contacted by or on behalf of Company and all contracted PC groups at the mobile number you have provided with calls and text messages (including prerecorded and/or by automatic telephone dialing systems)You may incur additional charges from your wireless provider for these services, and you are solely responsible for any receive such notifications, you may opt-out by texting the word STOP. We may confirm your opt out by text message. If you subscribe to multiple types of text messages from us, we may unsubscribe you from the service that most recently sent you a message and/or respond to your STOP message by texting you a request to identify services you wish to stop. You acknowledge that opting out of text messages may impact your ability to use certain features of the Service.
By using the Service, you hereby request and authorize Postmeds, Inc. (d/b/a Truepill), and OpenLoop Healthcare Partners California, PC, a professional corporation, and its affiliates (together, the “Provider Group”) to use and/or disclose the protected health information described below to Company. You understand that by using the Service, you hereby authorize the release of your entire health record held by Provider Group, which includes all protected health information submitted by me or about me in connection with the health care services provided to me by Provider Group (the “Health Information”). You understand that the purpose of this authorization is to authorize Company to use the Health Information to provide me with services that are ancillary to the health care services you receive from Provider Group in addition to allowing Company to conduct additional research and development of its healthcare data and technology products. You understand that you have the right to revoke this authorization, in writing, at any time by sending notice to 9amHealth Inc, 914 N. Coast Highway, Suite A, Encinitas, CA 92024, or by email to firstname.lastname@example.org. The revocation will be effective immediately upon the Provider Group’s receipt of your written notice, except that the revocation will not affect any uses or disclosures that were already made by Provider Group to Company prior to receipt of the written notice of revocation. You further understand that if the person or entity that receives my Health Information is not required to comply with the applicable privacy regulations, then the Health Information described above may be re-disclosed by the recipient and is no longer protected by the HIPAA privacy rule. You are providing this authorization voluntarily.
Company seeks to use commercially reasonable safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
Company will have no liability for errors, unreliable operation, or other issues resulting from use of the Service on or in connection with “rooted” or “jail broken” devices, or use on any mobile device that is not in conformance with the manufacturer’s and operating system provider’s original specifications, including use of modified versions of the operating system (collectively, “Modified Devices”). Any use of the Service on Modified Devices is at your sole and exclusive risk and liability.
9. Third Party Materials
The Service may contain links to third-party information, products, services or other materials that are not owned or controlled by Company (such materials, “Third Party Materials”). Company does not endorse or assume any responsibility for any Third Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness, or safety of Third Party Materials, or any Intellectual Property Rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading, or deceptive.
In connection with the use of certain services such as a Virtual Visit, you may elect to receive other services by third parties, such as lab tests, specialists’ visits, electronic health record management services and medical prescription fulfillment services. For clarity, such third party services are deemed “Third Party Materials.” We recommend that you verify the fees of such services and whether they are covered by your insurance plan. Further, in some instances, your health insurance plan may not pay for referrals from a doctor outside your insurance network or through a telemedicine visit. You can verify the coverage of your plan by contacting your insurance provider directly. Company is not responsible for any fees or costs incurred for Third Party Materials, or for the quality of Third Party Materials.
YOUR USE OF THIRD PARTY MATERIALS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY MATERIALS).
10. Paid Services
The Service may make available listings, descriptions and images of goods and services, including those available for one-time payment and also as Membership Plans, as defined below (collectively, “Paid Services”), or related coupons or discounts. Paid Services may be made available by Company or by third parties, and may be made available for any purpose, including general information purposes. The availability through the Service of any listing, description or image of a Paid Service does not imply our endorsement of the Paid Service or affiliation with the provider of the Paid Service. We make no representations as to the completeness, accuracy, reliability, validity, or timeliness of such listings, descriptions, or images (including any features, specifications and prices contained therein). Such information and the availability of any Paid Service (including the validity of any coupon or discount) are subject to change at any time without notice.
The fees for the Paid Services are as set forth by the Company, and Company reserves the right to change such fees from time to time. Company reserves the right to require payment in advance for any Paid Service.
It is your responsibility to ascertain and obey all applicable local, state, federal, and foreign laws (including minimum age requirements) regarding the purchase, possession and use of any Paid Service.
10.2. Membership Plans
Certain features, content, functionalities and other aspects of the Service may be available through one or more programs for users with valid memberships (each such membership program, a “Membership Plan”). The duration of the membership period for each Membership Plan (the “Membership Term”), the applicable fees for each Membership Plan (the “Membership Fee”), and other related payment terms (e.g., due dates) are described during checkout process and are subject to change by Company from time to time. The Company is not an insurance company. The Membership Plan is not a health insurance policy and does not meet any individual health mandate that may be required by federal law. Your Visit Service Provider will not file any claims against any insurance policy or plan for reimbursement for any services you receive pursuant to your Membership Plan. If you have an insurance policy, your insurance may include, at no additional charge, some of the services that you receive under the Membership Plan. The Membership Plan may enable you to access the Visit Service and/or the Coaching Service, as described in your Membership Fee. The Membership Plan does not cover (i) any ancillary services, with the exception of the Coaching Service, (ii) any services provided by any party other than through the Visit Service or the Coaching Service, (iii) hospital services, emergency room visits or urgent care facility visits, (iv) appointments with other providers or specialists, (v) radiology, (vi) lab tests by outside companies except for lab tests you may select in the checkout process, or (vii) any services not expressly listed as included in your applicable Membership Plan (collectively, the “Excluded Services”). You acknowledge that neither Company nor your Visit Service Provider is responsible for any medical bills incurred for any Excluded Services, even if your Visit Service Provider has referred you for such services. If your Visit Service Provider makes an outside referral, you should contact your insurance provider to check your coverage for such referred service. You acknowledge that you are enrolling in the Membership Plan voluntarily. Each Membership Plan is non-transferable. Each Membership Plan must be associated only with a single individual over the age of legal majority in the applicable jurisdiction. Your Membership Plan may start with a free trial period, in the Company’s discretion. You will be charged the applicable Membership Fee for the initial paid Membership Term at the end of the free trial period, unless you cancel your free trial before the end of the free trial period. The duration of the free trial period may differ for different users, and, if you receive a free trial, the duration will be specified by the Company during your Membership Plan registration process. After an initial Membership Term, each applicable Membership Plan will automatically renew for subsequent renewal periods of the same duration as the initial Membership Term, unless you cancel your applicable Membership Plan by notifying us at least seventy-two (72) hours before the applicable renewal date that you wish to cancel your Membership Plan or do not wish to automatically renew your Membership Plan, as discussed further below. You understand and agree that your Membership Plan(s) will automatically continue for additional periods, unless you cancel or do not renew in accordance with this Agreement, and you authorize Company (without notice to you, unless required by applicable law) to collect and charge the then-applicable Membership Fee(s) and any applicable taxes, for each such renewal, using any payment card that Company has on file for you. You agree to provide Company with alternate payment card information if the payment card Company has on file for you is no longer valid, or if you choose to use a different payment card. If you participate in a Membership Plan, you are responsible for payment of the applicable Membership Fee and all applicable taxes. All purchases for a Membership Plan are final. Except as otherwise required by applicable law, any paid Membership Fees (or payable Membership Fees for the remainder of an existing Membership Term) are non-cancellable and non-refundable. If you decide to cancel your participation in a Membership Plan, it means that your participation will automatically end at the end of your then-current Membership Term. For example, if you cancel in the middle of a monthly Membership Term, your participation will continue until the end of that Membership Term. For instructions on how to cancel your participation in a Membership Plan, please contact us at email@example.com. You must contact our support team at least 72 hours before the end of the applicable Membership Term or free trial period. Company reserves the right, in its discretion, to exclude any individual(s) from any Membership Plan or to terminate participation in any Membership Plan, for any reason, including abuse of the Membership Plan, failure to comply with this Agreement, or fraud, misrepresentation or other conduct detrimental to the interests of Company. Any such exclusion or termination may affect eligibility for further participation in any Membership Plan. Membership Plans may be subject to additional or different terms, conditions or policies, as made available and updated by Company from time to time. In the event of any conflict between any such terms, conditions or policies, and this Agreement, such terms, conditions or policies will control with respect to the applicable Membership Plan.
11. Payments, Refunds, Shipping and Fulfillment, and Cancellation
All fees are in U.S. Dollars, except as stated otherwise in writing by Company. All fees are exclusive of all applicable taxes (including value added tax, sales tax, goods and services tax, etc.), and you shall be responsible for payment of all applicable taxes. We recommend that you verify the existence and amount of any additional fees you may be charged by third parties in connection with any transaction (such as international transaction fees, currency exchange fees or fees due to banks or credit card companies). Company is not responsible for any such additional fees or costs.
As part of registering or submitting information to receive Paid Services, you authorize Company (either directly or through its affiliates, subsidiaries or other third parties) to request and collect payment (or otherwise charge, refund or take any other billing actions) from our payment provider or your designated banking account, and to make any inquiries Company or its affiliates may consider necessary to validate your designated payment account or financial information, in order to ensure prompt payment, including for the purpose of receiving updated payment details from your payment, credit card or banking account provider (e.g., updated expiry date or card number as may be provided to us by your credit card company). YOU ACKNOWLEDGE AND AGREE THAT WE MAY SUBMIT CHARGES WITHOUT FURTHER AUTHORIZATION FROM YOU UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. YOU ALSO REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT TO USE ANY CREDIT CARD THAT YOU SUBMIT IN CONNECTION WITH A TRANSACTION.
If the credit card you supplied to us is declined, you may be required to supply a new form of payment. Please note, however, that if a credit card you supplied to us is declined, we may first try to charge your card a few more times. Payments will be subject to Company’s payment policies.
You understand and agree that you are responsible for all fees due to third-party health care, pharmacy, laboratory and other services, including any fees charged by health care organization(s), provider(s) or third party contractors.
Federal and state health care programs, such as Medicare and Medicaid, do not pay for the Paid Services, even for some health care services and products that you or your health care provider may reasonably believe that you need. If you are a beneficiary of a federal or state health care program, you remain responsible to pay for these services and products. By using the Service, you acknowledge and agree that: (i) you will pay directly for any medical services and products provided to you, and (ii) neither Company nor any Provider or other Company-affiliated provider will bill any federal or state health care program for such medical services or products.
If you choose to pay for Paid Services using a Health Savings Account (“HSA”) or Flexible Spending Account (“FSA”), you acknowledge and agree that we do not have the obligation to verify your HSA or FSA status and/or eligibility and we cannot and do not guarantee that any Paid Services will be determined to be eligible for reimbursement through your HSA or FSA. Check with your benefits administrator to ensure eligibility for payment for any Paid Services using an HSA or FSA.
Payments are nonrefundable, and there are no refunds for partially used Membership Term periods. Please make sure you have read and understood the list of requirements in order to be treated through the Visit Service to avoid payment for a service that cannot be provided to you.
11.2. Fulfillment and Shipping
Any shipments will be shipped to an address designated by you, if applicable, so long as such address is complete and complies with any applicable shipping restrictions. All transactions are made pursuant to a fulfillment and shipping contract and, as a result, risk of loss and title pass to you upon delivery to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments.
Company reserves the right, including without prior notice, to limit the available quantity of or discontinue making available any Service (including any Paid Service), to impose conditions on the honoring of any coupon, discount or similar promotion, to bar any user from making any transaction, and to refuse to provide any user with any Service (including any Paid Service). You agree to pay all charges incurred by you or on your behalf through the Service, at the prices in effect when such charges are incurred, including all shipping and handling charges. In addition, you are responsible for any taxes applicable to your transactions. While it is our practice to confirm orders by email, the receipt of an email order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service. You may cancel a subscription at any time up to seventy-two (72) hours before the applicable renewal processing date of your subscription through the Service, by emailing firstname.lastname@example.org directly requesting a cancellation, or by calling (202) 932-9958 to cancel.
You agree to defend, indemnify and hold harmless Company and the Affiliated Entities (as defined below), and their respective successors and assigns, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any content that is submitted via your User Account, including misleading, false, or inaccurate information; (vi) your negligence or willful misconduct; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
13. Disclaimer of Warranty
THE SERVICE IS PROVIDED ON AN “AS IS,” “WHERE AVAILABLE” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICE (INCLUDING ANY PAID SERVICE) AND THIRD PARTY MATERIALS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, QUIET ENJOYMENT, NON-INFRINGEMENT AND TITLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, COMPANY, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
FURTHER, COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under this Agreement will not apply to the extent prohibited by applicable law. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH COMPANY AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS, AND SERVICE PROVIDERS (COLLECTIVELY, THE “AFFILIATED ENTITIES”), AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
14. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF USE, LOSS OF DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICE. UNDER NO CIRCUMSTANCES WILL COMPANY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM COMPUTER FAILURE OR MALFUNCTION, HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. ADDITIONALLY, UNDER NO CIRCUMSTANCES WILL COMPANY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM CANCELLED OR OTHERWISE UNFULFILLED APPOINTMENTS OR MEDICAL MALPRACTICE, FRAUD OR NEGLIGENCE OF PROVIDERS UTILIZED THROUGH THE SERVICE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR INFORMATION; (II) ACTS OR OMISSIONS BY ANY PROVIDER; (III) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (IV) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (V) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (VI) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; (VII) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; (VIII) USER CONTENT, OR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY; AND/OR (IX) YOUR USE OF OR INABILITY TO USE THE SERVICE OR ANY THIRD PARTY MATERIALS. IN NO EVENT SHALL THE COMPANY OR ANY AFFILIATED ENTITY BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO COMPANY HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE, OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH COMPANY AND THE AFFILIATED ENTITIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under this Agreement will not apply to the extent prohibited by applicable law. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO 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 OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
Company will not be deemed in breach of this Agreement due to any event or occurrence beyond Company’s control, including, without limitation, acts of God, terrorism, war, invasion, disease, epidemic, failures of any public networks, electrical shortages, earthquakes or floods, civil disorder, strikes, fire or other disaster.
No action arising under or in connection with this Agreement, regardless of the form, may be brought by you more than one (1) year after the cause of action arose; actions brought thereafter are forever barred.
This Agreement is effective until terminated. Company may terminate or suspend your use of the Service at any time and without prior notice, for any or no reason, including if Company believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension, your right to use the Service will immediately cease, and Company may, without liability to you or any third party, immediately deactivate or delete your user name, password, and account, and all associated materials, without any obligation to provide any further access to such materials. Sections 1.1 (Eligibility) through 1.5 (Not an Insurance Product), 1.7 (Users) through 1.10 (Service Location), 2 (General Disclaimers) through 9 (Third Party Materials), and 12 (Indemnity) through 19 (General) shall survive any expiration or termination of this Agreement.
16. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
16.1. Governing Law
You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of California, without respect to its conflict of laws principles. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in San Diego, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our data security, Intellectual Property Rights or other proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that San Diego, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
Read this section carefully because it requires each of us to arbitrate our disputes and limits the manner in which you can seek relief from Company. For any dispute with Company, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. IN THE UNLIKELY EVENT THAT COMPANY HAS NOT BEEN ABLE TO RESOLVE A DISPUTE IT HAS WITH YOU AFTER SIXTY (60) DAYS, WE EACH AGREE TO RESOLVE ANY CLAIM, DISPUTE, OR CONTROVERSY (EXCLUDING ANY CLAIMS FOR INJUNCTIVE OR OTHER EQUITABLE RELIEF AS PROVIDED BELOW) ARISING OUT OF OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, OR THE BREACH OR ALLEGED BREACH THEREOF (COLLECTIVELY, “CLAIMS”), BY BINDING ARBITRATION BY JAMS. ADDITIONALLY, WE EACH AGREE TO USE THE OPTIONAL EXPEDITED ARBITRATION PROCEDURES THEN IN EFFECT FOR JAMS, EXCEPT AS PROVIDED BELOW. CONTACT INFORMATION AND A DESCRIPTION OF JAMS’ ARBITRATION PROCESS MAY BE FOUND AT WWW.JAMSADR.COM. THE ARBITRATION WILL BE CONDUCTED IN NEW YORK COUNTY, NEW YORK STATE, UNLESS YOU AND COMPANY AGREE OTHERWISE. JAMS MAY REQUIRE YOU TO PAY A FEE FOR THE INITIATION OF YOUR CASE, UNLESS YOU APPLY FOR AND SUCCESSFULLY OBTAIN A FEE WAIVER FROM JAMS. THE AWARD RENDERED BY THE ARBITRATOR MAY INCLUDE YOUR COSTS OF ARBITRATION, YOUR REASONABLE ATTORNEY’S FEES, AND YOUR REASONABLE COSTS FOR EXPERT AND OTHER WITNESSES. YOU MAY SUE IN A SMALL CLAIMS COURT OF COMPETENT JURISDICTION WITHOUT FIRST ENGAGING IN ARBITRATION, BUT THIS DOES NOT RELIEVE YOU OF YOUR OBLIGATION TO ENGAGE IN THE ARBITRATION PROCESS DESCRIBED IN THIS SECTION. ANY JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION. THIS SECTION SHALL NOT BE INTERPRETED AS PREVENTING COMPANY FROM SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM THE COURTS AS NECESSARY TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF OUR DATA SECURITY, INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS. YOU AGREE THAT THIS ARBITRATION PROVISION WILL SURVIVE THE TERMINATION OF YOUR RELATIONSHIP WITH COMPANY.
16.3. Class Action/Jury Trial Waiver
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDINGS OF ANY KIND.
17. Additional Terms for Mobile Applications
17.1. Mobile Applications
We may make available software to access the Service via a mobile device (“Mobile Applications”). To use any Mobile Applications, you must have a mobile device that is compatible with the Mobile Applications. Company does not warrant that the Mobile Applications will be compatible with your mobile device. You may use mobile data in connection with the Mobile Applications and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. Company hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for one User Account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Applications, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Applications to any third party or use the Mobile Applications to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Applications; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Applications, features that prevent or restrict use or copying of any content accessible through the Mobile Applications, or features that enforce limitations on use of the Mobile Applications; or (v) delete the copyright and other proprietary rights notices on the Mobile Applications. You acknowledge that Company may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of the Mobile Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Applications is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof, and Company or its third-party partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Company reserves all rights not expressly granted under this Agreement. If the Mobile Applications is being acquired on behalf of the United States Government, then the following provision applies. The Mobile Applications will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms of Service and is prohibited except to the extent expressly permitted by these Terms of Service. The Mobile Applications originates in the United States, and is subject to United States export laws and regulations. The Mobile Applications may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Applications may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Applications and the Service.
17.2. Mobile Applications from Apple App Store
The following applies to any Mobile Applications you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and Company, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Company as provider of the software. Any inquiries or complaints relating to the use of the Apple-Sourced Software, including those pertaining to intellectual property rights, must be directed to Company in accordance with the “Contact” section below. The license you have been granted herein is limited to a non-transferable license to use the Apple-Sourced Software on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Service, except that the Apple-Sourced Software may also be accessed and used by other accounts associated with you via Apple’s Family Sharing or volume purchasing programs. In addition, you must comply with the terms of any third-party agreement applicable to you when using the Apple-Source Software, such as your wireless data service agreement. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Company as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
17.3. Mobile Applications from Google Play Store
The following applies to any Mobile Applications you acquire from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that the Agreement is between you and Company only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) Company, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to Company’s Google-Sourced Software.
18. Consent to Electronic Communications
By accessing or using the Service, you are consenting for Company, the Providers (as defined below), and its and their affiliates, agents, representatives, suppliers and service providers to send to you electronic communications about the Service.
You consent to receive communications relating to the Service in electronic form. The communications covered by your consent may include, but are not limited to: (i) any initial disclosure statement or agreement governing your access to or use of the Service, including this Agreement; (ii) any disclosure statement or agreement required by federal, state, provincial, territorial or local law, including any disclosure or agreement pursuant to the federal Health Insurance Portability and Accountability Act; (iii) any notice, alert or letter regarding your access to or use of the Service, including, but not limited to, notices regarding expiration and renewal of your Membership Plan, changes to your Membership Plan or updates in connection with Assessments or from third-party health care providers, pharmacy and laboratory services; and (iv) any other disclosures, notices or communications in connection with the registration, opening and maintenance of your Membership Plan or User Account. Such electronic communications may include your name and certain information about your use of the Service, including the expiration date of your Membership Plan. Electronic communications may be reviewed by any party, including Company and the Providers, with access to your User Account, the email address you have provided to us for delivering these communications or the hardware or software you use to view your information or your email address.
You may not access or use the Service unless you also provide your consent to receive electronic communications. If you have registered for online services (such as mobile alerts) and you subsequently wish to withdraw your consent to receive future electronic communications, you must unsubscribe from each service you have elected to receive in order to completely withdraw your consent to receive electronic communications. Any withdrawal of your consent to electronic communications will be effective only after there has been a reasonable period of time to process such withdrawal request.
You agree to promptly update your contact information, including your email address, if it changes, by providing such updated information through your online User Account or by email to firstname.lastname@example.org.
In order to access your electronic communications, you must have a computer, mobile device or other device with Internet-browsing capabilities, an Internet connection and a means to print or store notices and information through your browser software. Such technology requirements may change from time to time. Any changes in such requirements that may affect your access to electronic communications related to your access to and use of the Service will be posted on the applicable websites or mobile services. You should periodically check for such posted information.
Upon your request, you may receive a paper copy of any communication that was provided to you electronically. If you would like a paper copy of any such communication, please email email@example.com. There will be no charge for any paper copy.
All communications in either electronic or paper format from us to you will be considered to be in writing. You should print or download a copy of this consent, this Agreement and any other electronic communication that is important to you for your records.
You acknowledge that by clicking on the “I Agree”, “Register”, “Continue,” or any similar button provided in connection with this Agreement, you are indicating your intent to sign up for electronic communications, and that such action shall constitute your signature.
You acknowledge and agree that (1) your consent is being provided in connection with a transaction affecting interstate commerce that is subject to the federal Electronic Signatures in Global and National Commerce Act; and (2) you and Company, the Providers, and its and their affiliates, agents, representatives, suppliers and service providers, intend that the Act apply to the fullest extent possible to validate the ability to conduct business and communicate with you by electronic means.
This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between you and Company. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.” Unless expressly stated in the Agreement to the contrary, nothing herein is intended to confer any rights or remedies on any persons other than you, Company, the Providers, and their affiliates, and nothing in the Agreement is intended to relieve or discharge the obligation or liability of any third persons to you, Company, the Providers or their affiliates, nor shall the Agreement give any third parties any right of subrogation or action over or against you, the Company, the Providers and their affiliates.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. We may assign, transfer, or sublicense any or all of our rights or obligations under this Agreement without restriction.
19.3. Notification Procedures
Company may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, through posting of such notice on our Service, or through any other reasonable means, as determined by Company in our sole discretion. Company reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall 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. Company will not be responsible for any failure to fulfill any obligation due to any cause beyond its control. Company is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us.
19.4. Entire Agreement; Severability
This Agreement, together with any amendments and any additional agreements you may enter into with Company in connection with the Service, shall constitute the entire agreement between you and Company concerning the Service, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Company relating to such subject matter. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of Section 16.3 (Class Action and Jury Waiver), the entire arbitration agreement shall be unenforceable.
19.5 No Waiver
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Company’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
19.6. Copyright Infringement Claims
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Service infringe your copyright, you (or your agent) may send to Company a written notice by mail or e-mail, requesting that Company remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to Company a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See https://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to Paul Geevarghese as follows: By mail to 914 N. Coast Highway 101, Suite A, Encinitas CA 92024; or by email to firstname.lastname@example.org. We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice.
Please contact us at email@example.com with any questions regarding this Agreement. Please note that email communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
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