LAST MODIFIED: FEBRUARY 28TH, 2020
Click here for our Terms of Service in Spanish.
Please read this Agreement carefully to ensure that you understand each provision.
ARBITRATION NOTICE: This agreement contains a mandatory individual arbitration and class action/jury trial waiver provision that 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.
YOU SHOULD BE AWARE THAT COMPANY IS NOT A PROVIDER OF MEDICAL ADVICE. BEFORE YOU TAKE ANY ACTION THAT MAY AFFECT YOUR HEALTH OR SAFETY OR THE HEALTH OR SAFETY OF YOUR FAMILY, PLEASE CONSULT WITH A PROFESSIONAL. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR LOCAL EMERGENCY PHONE NUMBER OR YOUR HEALTHCARE PROVIDER IMMEDIATELY.
1. Our Service
Company provides a Service that empowers people to make informed health decisions (the “Symptom Checker”). Additionally, through the use of the Virtual 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 Virtual 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.
We support different languages, such as Spanish, in the Symptom Checker but the Virtual Visit Service is only available in English. If your primary language is other than English you will be prevented from using the Virtual Visit Service.
This is a contract between you and Company. You must read and agree to these terms before using or accessing any of the Company Services. If you do not agree to any of these terms, you may not use the Service. 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 international laws, rules and regulations. Any use or access to the Service by anyone under the age of 18 is strictly prohibited and in violation of this Agreement. You may only use the Service if Company has made the Service available in your country; any other use is prohibited.The Service is not available to any Users 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 such 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 is at the own risk of such User.
1.2 No Medical Advice through the Symptom Checker
ALL OF THE MATERIAL PROVIDED THROUGH THE SYMPTOM CHECKER PORTION OF THE PLATFORM, SUCH AS TEXT, GRAPHICS, PHOTOGRAPHS, IMAGES, MESSAGES, FORUM POSTINGS, AND ANY OTHER MATERIALS, ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE OR TREATMENT. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING YOUR HEALTH. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF ANY INFORMATION PROVIDED THROUGH THE PLATFORM. ADDITIONALLY, COMPANY DOES NOT PROMISE ANY PARTICULAR RESULTS WITH REGARDS TO YOUR HEALTH IN CONNECTION WITH YOUR USE OF THE PLATFORM. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR YOUR LOCAL EMERGENCY PHONE NUMBER IMMEDIATELY. The Symptom Checker portion of the Platform 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. The Company does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned through the Service. Reliance on any information provided on the Service, or by other members on the Platform is solely at your own risk. The Company does not undertake any responsibility in relation to the quality of the medical advice or the manner in which is it provided by doctors or medical organizations that receive your personal information through our Platform. We recommend that you use reasonable discretion and if you do not feel well or in the event you do not receive feedback within a reasonable time, we recommended that you contact your doctor directly.
1.3 Medical Advice through the Virtual Visit Service
Do not use the Virtual 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 using the Virtual Visit Service to communicate with you. Any information or advice received from a Provider comes from the Provider, and not from Company. Your interactions with the Providers via the Virtual Visit Service are not intended to take the place of your relationship(s) with your regular health care practitioner(s).
Company will not be liable for any professional advice you obtain from a Provider via the Virtual Visit Service. You acknowledge your reliance on any Providers or information provided by the Virtual Visit Services 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 Virtual Visit Service. You acknowledge that your ability to access and use the Virtual Visit Service is conditioned upon the truthfulness of this certification and that the Providers you access through the Virtual 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.
1.4 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 and as permitted by the features of the Service. Organizations, companies, and/or businesses may not become members and should not use the Site or the Service without express 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. All content shared within the Site is not for external use. 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. By connecting to Company with 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.
You may control 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, including any notices required by law, in lieu of communication by postal mail. Such notices may be provided to you 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. We may also use your email address or phone number to send you other messages, such as changes to features of the Service and special offers, such as the opportunity to participate in clinical trials. If you do not want to receive such notifications, you may opt-out or change your preferences in your settings page. Opting out may prevent you from receiving notification including notices regarding updates, improvements, or offers. You will not be able to opt-out from receiving service and payment connected notifications from the Company.
1.6 Changes to the Service
We may, without prior notice, 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. Upon termination of your access to the Service for any reason, you shall continue to be bound by the terms of this Agreement as applicable.
1.7 Interactions with Other Users
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.
1.8 Service Location
The Service is controlled and operated from facilities in the United States and Israel. Company makes no representations that the Service is appropriate or available for use jurisdictions other than the jurisdictions where the Company has made the Services 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 and/or Israel.
2. 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 CREAT 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 the right (but not the obligation) in its sole discretion and without an obligation to provide reasoning, to remove any User Content that is shared via the Service.
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, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, 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 use in connection with the Service and Company’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. 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.
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 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.
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 over 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.
3. Acceptable Use
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “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 on-line 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 Site 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) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation 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, 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, without limitation, 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 without limitation any Intellectual Property Rights (as defined below) or rights of privacy. Company reserves the right, but is not obligated, to reject and/or remove any User Content that Company believes, in its sole discretion, violates any of these provisions. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
4. Our Proprietary Rights
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, 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 strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you 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.
5. Text Messaging
By agreeing to use the Service, you agree to receive certain Company notification or information via push notification or SMS text message. You may incur additional charges from your wireless provider for these services and that you are solely responsible for any such charges. These notifications or text messages may contain information about the symptoms and other health information you have provided to Company and to Providers who participate with K Health. You can opt-out of receiving such notifications.
Company uses commercially reasonable physical, managerial, and technical 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. In the event that any information under our control is compromised as a result of a breach of security, or lost due to a technical failure, we will take reasonable steps to investigate the situation and, where appropriate, notify those individuals whose information may have been compromised and take other steps, in accordance with any applicable laws and regulations.
8. Third-Party Links and Information
9. Paid Services
9.1 The use of certain Services may be subject to payment of particular fees, as determined by the Company in its sole discretion (“Paid Services” and “Fee(s)”, respectively). We will provide notice of such Fees then in effect in relation to such Paid Services. If you wish to receive or use such Paid Services, you are required to pay all applicable Fees in advance.
Company reserves the right to change its Fees at any time, upon notice to you if such change may affect your existing subscriptions.
9.2 All Fees shall be deemed to be in U.S. Dollars, except as specifically stated otherwise in writing by Company. To the extent permitted by law (and unless specified otherwise by Company in writing), all Fees are exclusive of all taxes (including value added tax, sales tax, goods and services tax, etc.), levies or duties imposed by taxing authorities (“Taxes”), and you shall be responsible for payment of all applicable Taxes relating to your use of the Services, or to any payments or purchases made by you. If Company is obligated to collect or pay Taxes for the Fees payable by you, and whether or not such Taxes were added and collected from you for previous transactions, such Taxes may be added to the payment of any outstanding Fees and will be reflected in the Invoice for such transaction. We recommend that you verify the existence of any additional fees you may be charged by third parties in connection with the purchase of Paid Services or in connection with the renewal thereof (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.
9.3 Third Party Services. In connection to the use of certain Services such as a Virtual Visit, you may elect to receive other services by third parties, such as lab tests and specialists’ visits. 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. The Company is not responsible for any fees or costs incurred for any services provided to you by third parties, or for the quality of such external services
9.4 Health Savings Account: If you choose to pay for Paid Services using a Health Savings Account (“HSA”), you acknowledge and agree that we do not have the obligation to verify your HSA 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. Check with your benefits administrator to ensure eligibility for payment for any Paid Services using an HSA.
9.5 Use of Stripe. Payment for Remote Care Service is made via Stripe, Inc., a payment processing services provider. Your use of Stripe is subject to additional terms and services, which you should review.
9.6 As part of registering or submitting information to receive Paid Services, you also 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.
9.7 If the credit card you supplied to us for the Paid Services is declined, we will not provide you the service, and you may be required to supply a new form of payment to receive our services.
If the credit card you supplied to us for the Paid Services is declined for payment for your Membership, we may try to charge your card a few more times within the following 3 business days, following which the Membership will not be activated.
9.9 Payments are nonrefundable, and there are no refunds for partially used Membership periods, unless otherwise stated in the terms of applicable Membership plan. Please make sure you have read and understood the list of requirements in order to be treated through the Virtual Visit Service to avoid payment for a service that cannot be provided to you The company may provide promos, discounts of partial refunds at its sole and absolute discretion and on a case-by-case bases.
9.10 General. When creating a subscription to certain services such as the Virtual Visits, you will have access to such services during the membership period (“Membership”). Your Membership will renew automatically according to its applicable billing cycle until terminated. We will charge your membership fee automatically at the beginning of each billing cycle, unless you cancel your Membership before the end your Membership billing cycle, or prior to the end of your free trial (when applicable).
9.11 We may offer several membership plans with various membership fees and billing cycles. Your membership fee and length of billing cycle will depend on our offerings and your choice when you register as a member.
9.12 Free Trial. Your membership may start with a free trial period and you will be charged at the end of the free trial period, unless you cancel your free trial prior to the end of such free trial period. The duration of the free trial period may differ amongst users and will be specified during your Membership registration process.
9.13 Membership Cancellation. You may cancel your Membership at any time by writing to firstname.lastname@example.org, and you will continue to have access to the Service through the end of the applicable billing cycle. To avoid payment, make sure you cancel 3 days prior to the end of the billing cycle or the free trial period. When you cancel your Membership, your account will be closed automatically at the end of the billing cycle.
You agree to defend, indemnify and hold harmless Company and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, 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 without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation 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 without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
11. No Warranty
The Service is provided on an “as is” and “as available” basis. Use of the Service is at your own risk. To the maximum extent permitted by applicable law, the Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. 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.
12. Limitation of Liability
To the maximum extent permitted by applicable law, in no event shall Company, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, 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 hacking, tampering or other unauthorized access or use of the Service or your account or the information contained therein.
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) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our service; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from the Service; (v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our service by any third party; (vi) 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; and/or (vii) User Content or the defamatory, offensive, or illegal conduct of any third party. In no event shall Company, its affiliates, agents, directors, employees, suppliers, or licensors 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 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, even if Company has been advised of the possibility of such damage.
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
13. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
13.1 Governing Law. You agree that: (i) the Service shall be deemed solely based in New York; 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 New York. This Agreement shall be governed by the internal substantive laws of the State of New York, 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 New York, New York 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 a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that New York, New York 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.
13.2 Arbitration. 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, New York, 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.
13.3 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.
14. Additional Terms for Mobile Applications
14.1 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 Company 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.
14.2 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. 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.
14.3 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.
15.1 Assignment. 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.
15.2 Notification Procedures and Changes to the Agreement. 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, or through posting of such notice on our website, 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. 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. Company may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to the Agreement. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the Service.
15.3 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. 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 the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
15.4 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.
15.5 The terms governing Paid Services and Membership in this Agreement do not apply to Sydney Care/Sydney Health users.
15.6 Contact. Please contact us at firstname.lastname@example.org with any questions regarding this Agreement.