LAST MODIFIED: JUNE 06, 2023
Click here for our Terms of Service in Spanish.
These Terms of Service (this “Agreement”) are a legal agreement between you (“User,” “you,” or “yours”) and K Health Inc., the K Health Affiliates, and the K Health Subsidiaries (collectively, “Company,” “we,” “our,” or “us”) and govern your access to and use of the Service (as defined below).
The following definitions apply to this Agreement. Additional defined terms are indicated throughout.
“Applicable Laws” means all state and federal laws and regulations that apply to the Service.
“Assessments” means the Symptom Checker and clinical assessment tools available on the Virtual Visit Service.
“K Health Affiliates” means K Health’s affiliated professional corporations.
“K Health Subsidiaries” means K Health’s subsidiary entities, including, but not limited to its pharmacy.
“Provider” means physicians and other health care providers, employed or contracted by K Health’s affiliated professional corporations.
“Service” means our Virtual Visit Service, Symptom Checker, Assessments, and other functionality provided by us, including integration of medical records, connection to our affiliated pharmacy or other third-party pharmacy services, connection to other third party services (e.g. laboratory services) administrative and customer support, scheduling and payment, integration of your medical record information into the Service, and other services that we may add from time to time on our platform applications.
“Symptom Checker” means our artificial intelligence-enabled symptom checker.
“Virtual Visit Service” means our online interfaces, clinical services, and properties (including, our mobile services, websites, software) that allow you to interact with physicians and other health care providers for communication, consultations, assessments, and treatment.
“Sponsor Organization” means you or your partner, spouse, or parent/guardian’s employer, university, or health plan.
For clarity, if a Sponsor Organization is paying for your access to and use of the Service, and has a separate written agreement with Company that concerns making the Service available to you, that written agreement, and not this Agreement, governs and controls the contractual relationship between Company and the Sponsor Organization, but this Agreement governs and controls the contractual relationship between Company and you.
BY ACCESSING OR USING THE SERVICE, OR OTHERWISE INDICATING YOUR ASSENT BY CLICKING I ACCEPT, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT, AND AFFIRMING that you are at least 18 years of age to enter into this Agreement. You acknowledge and agree that you have reviewed and accept the terms of this Agreement and you must not use the Service if you do not agree with the terms of this Agreement.
Updates to this Agreement. 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, by clicking accept to new terms you are agreeing to be bound by the updated version of this Agreement. 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. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
K HEALTH, INC. IS NOT A PROVIDER OF CLINICAL ADVICE. BEFORE YOU TAKE ANY ACTION THAT MAY AFFECT YOUR HEALTH OR SAFETY, OR THE HEALTH OR SAFETY OF OTHERS, PLEASE CONSULT WITH A MEDICAL PROFESSIONAL. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR LOCAL EMERGENCY PHONE NUMBER OR YOUR HEALTH CARE PROVIDER IMMEDIATELY. IF YOU ARE THINKING ABOUT SUICIDE, OR IF YOU ARE CONSIDERING TAKING ACTIONS THAT MAY CAUSE HARM TO YOU OR TO OTHERS, OR IF YOU FEEL THAT YOU OR ANY OTHER PERSON MAY BE IN ANY DANGER, OR IF YOU HAVE ANY MEDICAL EMERGENCIES, CALL 911 IMMEDIATELY AND NOTIFY ANY RELEVANT AUTHORITIES. THE SUICIDE HOTLINE IS 988 OR 800-273-8255 IF FACED WITH AN IMMEDIATE OR EMERGENT CRISIS. THERE ALSO MAY BE OTHER NATIONAL, REGIONAL, AND STATE RESOURCES AVAILABLE TO YOU.
PLEASE DO NOT USE OUR VIRTUAL VISIT SERVICE WHILE DRIVING; THE SERVICE REQUIRES YOU TO BE ENGAGED IN A TEXT CONVERSATION WITH A PROVIDER DURING THE VIRTUAL VIST SERVICE.
BY ACCEPTING THIS AGREEMENT, YOU ARE ALSO AGREEING TO RECEIVE COMMUNICATIONS ELECTRONICALLY, AS FURTHER DESCRIBED BELOW.
TABLE OF CONTENTS
- Our Service
- 1.1. Eligibility
- 1.2. No Clinical Advice
- 1.3. Clinical Advice through the Service
- 1.4. Risks of Telehealth Services
- 1.5. Prescription Policy, Pharmacy Information
- 1.6. Prescription Auto-Refill Policy
- 1.7. Not an Insurance Product
- 1.8. Users
- 1.9. Additional Users
- 1.10. Changes to the Service
- 1.11. Promotions
- 1.12. Service Location
- License Grant
- License Restrictions
- Intellectual Property; Reservation of Rights
- User Content
- Text Messaging
- Third Party Materials
- Paid Services
- Payments, Refunds, Shipping and Fulfillment, and Cancellation
- Disclaimer of Warranty
- Limitation of Liability
- Governing Law, Arbitration, and Class Action/Jury Trial Waiver
- Additional Terms for Mobile Applications
- Consent to Electronic Communications
- Third-Party Terms
1. Our Service
As part of the Service, Company provides Assessments to help people to make informed health decisions. Additionally, through the use of the Virtual Visit Service, 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, and also enables the use of our affiliated pharmacy or other third-party pharmacy services. The Virtual Visit Service is provided through health care providers affiliated with Company. Company is not a provider of clinical advice or a health care provider.
We may support different languages, such as Spanish, in certain Assessments, but in certain circumstances the Virtual Visit Service may be available only in English and if your primary language is not English, you may be prevented from using the Virtual Visit Service. If you are receiving services through a Sponsorship Organization, please contact your Sponsorship Organization for further assistance with additional languages.
You may use the Service only in compliance with this Agreement and all Applicable Laws. Except as expressly provided in Section 1.9 below, 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. You also agree that you must not use the Service to seek care for an issue or injury arising from a workers’ compensation claim.
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. No Clinical Advice
ALL OF THE MATERIAL PROVIDED THROUGH THE SERVICE (except when receiving clinical services from a Provider through the Virtual Visit Service), INCLUDING TEXT, GRAPHICS, PHOTOGRAPHS, IMAGES, MESSAGES, ARTICLES, POSTS, SIMULATED VIRTUAL CONVERSATIONS, FORUM POSTINGS, AND ANY OTHER MATERIALS, ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT A SUBSTITUTE FOR PROFESSIONAL CLINICAL ADVICE OR TREATMENT (TOGETHER, “MATERIALS”). EVEN WHEN ASSESSMENTS ARE BASED ON CLINICAL PROTOCOLS, SUCH ASSESSMENTS DO NOT CONSTITUTE CLINICAL CARE, ADVICE OR DIAGNOSIS. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING YOUR HEALTH. NEVER DISREGARD PROFESSIONAL CLINICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF ANY INFORMATION PROVIDED TO YOU THROUGH THE SERVICE. ADDITIONALLY, 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 911 (988 FOR MENTAL HEALTH EMERGENCY) OR YOUR LOCAL EMERGENCY PHONE NUMBER IMMEDIATELY. The Assessments and any other Materials provided through the Service 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 healthcare professional. The Assessment and Materials are provided for informational purposes only and should not be constructed as specific instructions for individual users or as a substitute for clinical advice, diagnosis, or treatment. Unless specifically prescribed or ordered to you by one of our Providers, Company does not recommend or endorse any specific medication, tests, clinicians, products, procedures, opinions, or other information that may be mentioned through the Service. Reliance on any information provided through the Service, or by other members of the Service, is solely at your own risk. K Health, Inc. and the K Health Subsidiaries do not undertake any responsibility in relation to the quality of the clinical advice or the manner in which it is provided by Providers employed or contracted with an K Health Affiliate. We recommend that you use reasonable discretion, and if you do not feel good or if you do not receive feedback within a reasonable time, we recommend that you contact your clinician directly.
1.3. Clinical Advice through the Service
Do not use the Service if you are driving a motor vehicle. Do not use the Service for emergency medical needs. If you experience a medical emergency, call your local emergency phone number immediately.
Company and the K Health Subsidiaries do not provide any clinical services nor recommend or endorse any specific Providers, tests, medications, products, or procedures. You acknowledge that the Providers that render clinical care to you through the Virtual Visit Service are engaged by K Health Affiliates and, in connection with such affiliation, such K Health Affiliates or Providers may have a financial interest in K Health, Inc. and K Health Subsidiaries. Any information or advice received from a Provider comes from the Provider, and not from K Health, Inc. While K Health Inc. may facilitate your selection of and communication with Providers, K Health, Inc. and the K Health Subsidiaries do not provide clinical services or clinical advice, and any Provider-patient relationship is only between you and the applicable Provider. You understand that Providers cannot treat all conditions using the Virtual Visit Service.
You consent to receive clinical care from the applicable Provider using remote electronic communications, such as interactive chat, audio, and/or video communications, specifically through your use of the Virtual Visit Service, where such clinical care may include diagnosis, consultation, treatment, and transfer of electronic medical records and medical data. Please refer to Risks of Telehealth Services below for more information regarding risks associated with remote electronic communications.
You consent to the following in connection with the Virtual Visit Service:
- Data, chat text, audio, video, and/or digital photos may be recorded;
- Details of your medical information may be discussed with you and the Providers via the Service using electronic technology, including chat, audio, video, and/or graphics technology;
- Virtual examination of you may take place; and
- Medical personnel and non-medical technical personnel may join the visit, virtually, to aid in delivery of medical care to you or for the purpose of improving the Service.
All Applicable Laws apply to your visit using the Virtual Visit Service. All confidentiality protections under Applicable Law apply to information disclosed during your visit.
Your interactions with the Providers via the Virtual Visit Service have limitations and therefore do not take the place of your relationship(s) with your regular in-person healthcare practitioner(s). The type of Provider you may interact with via the Virtual Visit Service is not limited to a Doctor of Medicine (“MD”). Your use of the Virtual Visit Service may occur with a MD, a Doctor of Osteopathic Medicine (“DO”), a Registered Nurse (“RN”), a Physician’s Assistant (“PA”), or Nurse Practitioner (“NP”), or other licensed healthcare or mental health providers. For medical services, you may request to be seen by a licensed MD by indicating so within the chat. You understand and agree that, as part of the Virtual Visit Service, you may not be able to select a specific Provider. Further, you understand and agree that, due to emergencies, scheduling, and other circumstances, Company cannot warrant or otherwise guarantee, and does not warrant or otherwise guarantee, that you will have access to the Providers, including any specific Provider.
Under state and federal law, communications between you and certain Providers are generally privileged and may not be disclosed without your authorization except under specific, limited circumstances. Among these exceptions may be reporting laws that require the Provider to report certain types of conduct to appropriate authorities and sharing communications between Providers as related to your treatment. For more information, please review our Notice of Privacy Practices.
Neither K Health, Inc. or the K Health Subsidiaries is liable for any professional or other advice you obtain from a Provider via the Virtual Visit Service, or for any information obtained through the 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 location for the Virtual Visit Service and, to the extent you connect with a Provider, you will immediately inform the Provider if you changed the state in which you are located in. When receiving Services from a Provider, you may be asked to upload a copy of your identification card (e.g. drivers’ license, state ID) and a self-photograph (“selfie”) for verification purposes, location purposes, and evaluation and treatment purposes. In connection with the Virtual Visit Services, and prior to connecting with a Provider, you may also be requested to provide information about your symptoms, medical conditions and other information deemed relevant to providing you with care.
You acknowledge and certify that your ability to access and use the Virtual Visit Service is conditioned upon the truthfulness of the information you provide, 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 Risks of Telehealth Services
Telehealth services involve the use of electronic communication technologies to enable the transfer of medical/health and other information between you and your Provider who is not in the same location. Telehealth technologies may involve asynchronous communications as well as synchronous communications. Telehealth technologies may also involve the electronic transmission of your medical records, images, personal health information, or other data between you and a health care provider. Among other uses, telehealth may be used for diagnosis, treatment, follow-up, and education. The purpose of this section is to inform you about telehealth. You agree that it is your choice whether or not to use the Service. You understand that at any time, you can change your mind about receiving Service and may seek alternative in-person services. By using the Service, and accepting our Informed Consent Form you are providing your voluntary, informed consent to the use of telehealth in the delivery of health care provided by the Providers. You understand that you have no obligation to use the Virtual Visit Service provided by K Health through the Providers, and that you are voluntarily consenting to use such services. If you would like to have the records relating to your use of the Service through the Virtual Visit Service sent to your primary care provider, you understand that you may need to request such transfer of such records. You may obtain copies of your medical records for the Virtual Visit Service by emailing K Health at [email protected]. K Health will respond to messages as they are received but does not guarantee an immediate response. By using the Virtual Visit Service, you acknowledge the potential risks associated with telehealth services, as described in our Informed Consent Form, 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; there is also the risk of technical failures beyond the control of Company or the Provider, which could lead to delays in evaluation or to information lost due to such technical failures;
- 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; and
- 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. You hereby release and hold harmless K Health from any loss of data or information due to technical failures associated with the Platform.
- There may be other risks to telehealth that are currently not known.
By using the Service, you acknowledge these limitations, understand, and agree to assume the risk of these limitations. Further, you agree that: (i) any diagnosis you may receive 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 health care provider’s ability to diagnose any potential condition, disease, or injury. You acknowledge that it is your duty to inform your Provider of interactions regarding care that you received from other health care providers and to provide accurate and complete information during the Assessment and intake process to ensure your Provider has your full clinical background when making treatment decisions. You understand that the Provider may not have a way of verifying the accuracy of information you provide, and that the Provider will consider the information you provide (including your response to automated questions) to be accurate, true, and complete. 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. You understand that making a request for treatment (by completing a visit and making payment) does not in and of itself create a duty of care or create a provider-patient relationship. You understand that you need to be responsive to ongoing requests for information from your care team, including but not limited to completion of ongoing assessments about your symptoms and side effects during your treatment, and you hereby consent and permit your Provider (or anyone on your Provider’s behalf) to access your prior medical information, including your prescription history and medical record, in order to receive care and remain under the care of your care team. If you are not responsive to these requests for information, you understand that you cannot be considered to be under the care of the prescribing provider or care team. You understand that a variety of alternative methods of medical care may be available to you, and that you may decide to stop using the Services and choose one or more of these alternative modes of care at any time. Company encourages you to provide all relevant information and discuss any and all diagnosis and treatment options with Providers. You should ask questions about anything you do not understand with your Provider.
1.5. Prescription Policy, Pharmacy Information
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 U.S. DRUG ENFORCEMENT ADMINISTRATION 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. In order to provide you with appropriate care, Providers may request, access, and receive your medication history data, including your prescription history from pharmacies that have filled your prescriptions and aggregators of such information, and use this information for your treatment purposes. Providers reserve the right to not treat you in the event you do not consent to the Provider obtaining your prescription history. All prescription medications are provided subject to all warnings, limitations, and restrictions published or provided by the medication’s manufacturer. You agree to fully and carefully read all provided product information and labels, including information regarding dosage, warnings, interactions, and other information prior to using any drug, and that you will contact a clinician or pharmacist if you have any questions regarding the prescription. Company and Providers fully honor patient freedom of choice, and 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. You acknowledge and understand that your use or misuse of prescription medications obtained through the Service may result in undesirable or unexpected consequences. Company does not accept any liability for the consequences arising from the application, use, or misuse of any prescription medications made available through the Service, including any injury or damage to any person or property as a matter of negligence, or otherwise, including your failure to comply with any warning labels attached to the prescription products.
Certain prescriptions may be filled through a mail-order pharmacy, including Company’s pharmacy. If you elect to fill a prescription through a mail-order pharmacy, the prescription product will be shipped to you by the applicable pharmacy, provided such product is available through or mail order service. If you fill a prescription with a pharmacy other than a mail-order pharmacy, Company will send the prescription to your selected pharmacy, and you will be responsible for picking up or otherwise obtaining the prescription product and paying the pharmacy directly for the cost of the prescription product. You are responsible for the costs associated with filling medication.
If you select to use a mail-order pharmacy, you give us consent to send and disclose to the applicable pharmacy all information provided by you, your health care records, and other applicable health care information and personal information (such as your name, location, and demographic information) that is required to provide you the pharmacy services.
1.6. Prescription Auto-Refill Policy
If you receive or choose to receive your prescription by mail order and your prescription includes refills, you will be placed on our automatic refill program, to the extent available, and you consent to be automatically charged and dispensed on a recurring, monthly basis until your refills run out, you otherwise cancel your refills with us, or if otherwise required by Applicable Law. The charge on each automatic refill will be billed to the payment method used to create your subscription or otherwise directed by you. If you withdraw from the automatic refill program after your applicable refill has been dispensed, you will be responsible for the charges associated with such refill and any charges incurred prior to your withdrawal. If you are placed on our automatic refill program, you will receive a notice each time your prescription is being refilled. If you would like to withdraw your prescription from automatic refills, you must contact [email protected], at least 48 hours prior to the scheduled refill. Please see the terms associated with our Paid Services, in Section 9, below. You agree to promptly update us regarding any changes to your shipping address, drug dose, frequency of use, or any other information that might affect your refill regimen.
If, for any reason, we determine that we cannot ship any applicable prescription within fourteen (14) days after our receipt of a properly completed prescription order, we may cancel your prescription order and advise you of such action. These reasons may include, but are not limited to, you do not respond to clarification regarding payment, blood pressure readings, treatment plan adherence, and/or a lack of response from you to additional questions from us. Please see additional Fulfillment and Shipping terms, in Section 10.2, below.
1.7. 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 under any applicable state law. If you do not have health insurance, you may be subject to tax penalties under the Patient Protection and Affordable Care Act for failing to obtain insurance. If you desire any type of health or other insurance, you must purchase such insurance separately. If you have health insurance coverage that is compliant with the Patient Protection and Affordable Care Act, you may already have coverage for certain preventive care benefits at no cost to you.
Except for your use of the Virtual Visit Service through a Sponsor Organization, Company makes no guarantee as to whether your use of the Service may be combined with any third-party insurance or whether, if combined, it can count toward the user’s health insurance deductibles and maximum out of pocket expenses. The fee, if any, earned by Company’s non-professional entities, does not cover the provision of medical care. The fee earned by any Providers shall cover the rendering of medical care by the Providers only, and shall not cover the cost of any diagnostic or other laboratory tests, prescription medications or medical devices, specialty medical care rendered by any third party, or any other referral made by the Provider to another third party.
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 login process. If requested, you also agree to provide contact information for a personal contact and/or a close family member or relation, to your Provider through your User Account, to act as an information source in case of a mental health crisis or other emergency where knowledge of your location is crucial. We may reject, or require that you change, any user name, 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.
1.9. Additional Users
You may have the ability to create profiles within your User Account for individuals who may receive the benefit of certain Services through your User Account (“Additional Users”) to the extent permitted by the functionality of the Service and Company’s policies, for so long as such Additional Users are under the age of majority in the applicable jurisdiction, you are their parent or legal guardian, and the other requirements set forth in this section are met. You hereby agree to the terms and conditions of this Agreement on behalf of each of your Additional Users. You are responsible for ensuring that each of your Additional Users complies with such terms and conditions, and for all of their acts and omissions with respect to the Service or this Agreement.
You represent and warrant that you are the parent or legal guardian of each individual for whom you create a profile within your User Account, or for whom you otherwise access or use the Services; that such individual is over three years of age, and under the age of majority in the applicable jurisdiction, and that you have the right under applicable law to access and use the Service on behalf of such individual, including to send, receive, and have access in connection with the Service to any information relating to such individual; that the minor has not been emancipated due to circumstances such as marriage, military service, or judicial emancipation; that the minor is not under the care of a government agency; that you will be physically present for the duration of any such access or use of the Service on behalf of such individual; and that you will promptly cease such access or use of the Service on behalf of such individual after he or she reaches the applicable age of majority. Upon request by Company from time to time, you will submit any reasonably requested documentation to verify compliance with the foregoing. If, at any time, you are no longer authorized to access the minor’s profile, due to court order or for any other reason, you must notify Company immediately. You acknowledge that Providers may elect to provide care only for children whose parents or legal guardians agree to follow the American Academy of Pediatrics’ recommended vaccine schedule, or catch-up on vaccines according to the Centers of Disease Control and Prevention’s recommended schedule. It is at the discretion of the applicable Provider whether to provide care to infants and children whose parents or guardians refuse routine childhood vaccinations. COMPANY DOES NOT RECOMMEND THAT, AND YOU AGREE TO BE SOLELY RESPONSIBLE IF, YOU OR ANY MINOR FOR WHOM YOU ARE RESPONSIBLE DECIDES TO MEET OFFLINE OR IN PERSON WITH ANY PROVIDER.
1.10. Changes to the Service
We may, without notice and liability, change the Service, stop providing the Service or certain features or programs of the Service, to you or to Users generally, or create usage limits for the Service. Subject to applicable law, 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.
1.12. Service Location
The Service is controlled and operated from facilities in the United States and Israel. The Service is available in the contiguous 48-states. 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 Israel, 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. License Grant
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, revocable, non-transferable, non-sublicensable license to access and use the Service, during the term of this Agreement, solely for your personal, noncommercial use strictly in accordance with the terms of this Agreement and the permitted 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.
3. License Restrictions
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 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 publicly 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; (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; or (xvi) using or accessing the Service in an abusive, excessive, or inappropriate manner as determined in the sole discretion of Company, which may include, but is not limited to (a) initiating or engaging in unjustified, excessive, superfluous, or unsuitable visits; (b) repeatedly terminating or exiting visits before their conclusion; (c) repeated failure to respond to and comply with the Providers’ follow-up and treatment plans; (d) creating a hostile environment, or harassing one or more Providers; or (e) otherwise engaging in inappropriate behavior through the Service.
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.
4. Intellectual Property; Reservation of Rights
Except for your User Content, as between the parties, 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, share or submit comments or ideas about the Service, including about how to improve the Service or our products (“Ideas”). By sharing or 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.
The Service contains proprietary and confidential information that is protected by applicable intellectual property laws. User hereby acknowledges and agrees that all right, title, and interest in the Platform and the Service, and all contents of each of the foregoing, including without limitation all copyrights, database rights, trademarks, trade secrets, and other intellectual property rights of any kind therein or relating thereto, together with the underlying software code, are exclusively owned by Company.
Company, the Company logo, and all custom graphics, page headers, button icons, proprietary product and service names, and trade dress are either trademarks or registered trademarks of Company and/or its licensors in the United States and/or other countries, and may not be used, in whole or in part, without the prior written permission of Company.
Except as expressly stated herein, this Agreement does not grant to User any intellectual property rights in the Platform or the Services, and all rights not expressly granted are reserved by Company and its licensors.
5. 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, reviews on the Apple App Store or Google Play Store and other content or information (other than your medical information that you submit or that we obtain from other sources, any such materials a User submits, posts, displays, provides, or otherwise makes available with respect to 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 do so and you hereby 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.
6. Text Messaging
By providing us with your telephone number you affirmatively consent to receive certain recurring Company notifications or information via push notification or SMS text message or calls (including prerecorded calls), in order to perform and improve upon the Service, and to provide you with information and reminders regarding the Service and any Membership Plan, including your registration, upcoming Service, changes, and updates. You may incur additional charges from your wireless provider for these services, and you are solely responsible for any such charges. These calls, notifications or text messages may contain information about the Services and other health information you have provided to Company and to Providers who participate with K Health. You can opt-out of receiving such calls, notifications for text messages by contacting customer service at [email protected], replying STOP to any such message, and for push notifications, through your device settings. Please see Section 18.7, below, for our contact information. Company and Wireless carriers are not responsible for any undelivered messages. Company will not assess any charges for calls or texts, but standard message charges or other charges from your wireless carrier may apply. You understand that we may send you a text confirming any opt-out by you. You acknowledge that opting out of text messages may impact your ability to use certain features of the Service. However note that access to the Services is not conditioned upon your consent to receive marketing or promotional text messages from Company.
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, warrant, 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.
Third Party Materials are subject to their own intellectual property rights, and may not be reproduced without such Third Party consent. You may not: (i) engage in deceptive, misleading, illegal, and/or unethical practices in connection with the marketing, distribution, and use of Third Party Materials, (ii) make false or misleading representations with regard to any Third Party Materials; (iii) abridge, modify, translate, or create any derivative work based on the Third Party Materials; (iv) distribute the Third Party Materials as a standalone product or private label; (v) modify or edit the Third Party Materials; or (vi) reverse engineer, decompile, disassemble, decipher, re-engineer, or otherwise create or attempt to create or permit, allow, or assist others to determine the codes related to the Third Party Materials.
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.
To the extent we are bound by a limitation of liability, disclaimers, regarding warranties or representations, or other applicable terms through our provision of making available the Third Party Materials, you agree to be bound by the same, to the extent permitted by law. Further, 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, through your purchase or through your Sponsor Organization. Such information and the availability of any Paid Service or third party Paid Service (including the validity of any coupon or discount) are subject to change at any time without notice.
As it pertains to third party Paid Services the availability through the Service of any listing, description, or image of a third party Paid Service does not imply our endorsement of the third party Paid Service or affiliation with the provider of the third party 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).
As for Paid Services offered by the Company, the fees for the Paid Services are as set forth by Company, and Company reserves the right to change such fees from time to time. If you continue to use the Paid Services, including a Membership Plan or auto-refill prescriptions through our affiliated pharmacy, then you consent to any increase in price to the Paid Services, unless you cancel your Paid Service, as set forth below. Company reserves the right to require payment in advance for any Paid Service. You understand and agree that your Paid Service will automatically continue for additional periods set forth in the terms of such Paid Service, unless you cancel your applicable Paid Service by notifying us at [email protected] at least 48 hours before the applicable renewal date that you wish to cancel your Paid Service, then your Paid Service shall continue until you cancel it. You authorize Company (without notice to you, unless required by applicable law) to collect and charge the then-applicable Membership Fee(s) (defined below), including any revised Membership Fees provided you received prior notification, and any applicable taxes, for each such renewal, using any payment card that Company has on file for you. 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. 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 Paid Service, you are responsible for payment of the applicable fee and all applicable taxes. All purchases for a Paid Service are final. Except as otherwise required by applicable law, any fees paid for a Paid Service are non-cancellable and non-refundable. If you decide to cancel your participation in a Paid Service, it means that your participation will automatically end at the end of your then-current Paid Service term. For example, if you cancel in the middle of a monthly Paid Service term, your participation will continue until the end of that month. For instructions on how to cancel your participation in a Paid Service, please contact us at [email protected]. You must contact our support team at least 48 hours before the end of the applicable Paid Service term.
Certain weights, measures, and similar descriptions are approximate and are for convenience only. We make reasonable efforts to display accurately the attributes of certain applicable Paid Services, including their colors, however, the actual colors you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. 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.
Any discount programs offered through third-party entities are not insurance and shall be governed by such entities’ terms and conditions. Such discount programs are available to all Users free of charge.
If the Service is, or was, offered to you at no cost or at a discounted rate, any public or other published review, comment, or testimonial about Company or the Service must include a statement indicating that the Service is, or was, provided to you at no cost or at a discounted rate. If any incentives were offered to you for any public or other published review, comment, or testimonial, you must disclose such incentives in connection with such review, comment, or testimonial. Company may republish, including on its websites or in other media, any publicly available review, comment, or testimonial about Company or the Service. Appropriate attribution to the original source of the publication will be made by Company.
10.2. Membership Plans
Certain features, content, functionalities, and other aspects of the Service may be available through programs for users with valid memberships for medical services, pharmacy services, or combined services (each such membership program, a “Membership Plan”). A Membership Plan is a Paid Service, as set forth above.
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. When receiving the Service outside of your relationship with a Sponsor Organization, and pursuant to a Membership Plan, please note that neither Company nor your Virtual Visit Service provider will file any claims against any insurance policy or plan for reimbursement for any services you receive pursuant to your Membership Plan, and that obtaining a primary care provider through the Service will likely not qualify for any primary care provider requirement that exists in a third-party insurance plan unless otherwise agreed to by your Sponsor Organization or third-party insurance 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 should not be utilized for emergency medical problems.
A Membership Plan provides you access to certain Virtual Visit Services by licensed health care Providers and/or pharmacy services as set forth in your Membership Fee. The Membership Plan does not cover (i) any ancillary services; (ii) any services provided by any party other than your Virtual Visit Service providers; (iii) hospital services, emergency room visits, or urgent care facility visits; (iv) appointments with other providers or specialists referred to you by a Provider; (v) radiology; (vi) lab tests; (vii) medication (unless explicitly stated otherwise in your Membership Plan) (vii) durable medical equipment; or (viii) any services not expressly listed as included in your applicable Membership Plan (collectively, the “Excluded Services”). You acknowledge that your Virtual Visit Service Provider is not responsible for any medical or other bills incurred for any Excluded Services, even if your Virtual Visit Service provider has referred you for such services. If your Virtual 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. By ENROLLING IN OR using ANY MEMBERSHIP PLAN, YOU ARE AGREEING TO BE BOUND BY THESE TERMS AND AFFIRMING THAT YOU ARE OF LEGAL AGE TO ENTER INTO A MEMBERSHIP PLAN. 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. A Membership Plan may, in Company’s sole discretion, permit the member to receive certain services for the benefit of up to two (2) Additional Users.
Your Membership Plan may start with a free or discounted trial period in Company’s sole discretion. You will be charged the applicable Membership Fee for the initial paid Membership Term at the end of the free or discounted trial period, unless you cancel your free trial before the end of the free or discounted trial period and provide the terms of such promotion allows you to do so. The duration of the free or discounted trial period may differ for different users, and, if you receive a free or discounted trial, the duration will be specified by 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 48 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 protected]. You must contact our support team at least 48 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 any applicable third-party health care, pharmacy, laboratory and other services, including any fees charged by the health care organization(s) or provider(s).
If you access the Service through a Sponsored Organization, your payment will be arranged by a third party “payor,” which is a third party that administers or insures the benefit program you are a member of through your Sponsored Organization. You understand that K Health may bill certain third party payors for Services you receive from K Health, but that you will be responsible for payment for any Services that are not paid for by your Sponsored Organization’s benefit program. Further, you accept that you are financially responsible for all co-payments or deductibles as dictated by your insurance plan and benefit program. You understand that it is your responsibility to arrange and pay for any follow-up care that the Provider recommends you receive.
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 and such program does not pay for certain services or products rendered to you, you remain responsible to pay for these services and products. By using the Service, you acknowledge and agree that: (i) you will not use the Service for an issue that you anticipate or expect to be covered by any federal or state health care program; (ii) you will pay directly for any medical services and products provided to you; and (iii) 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 are not affiliated with a Sponsor Organization with which Company contracts to provide you medical care as part of a group health plan and 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.
Unless specified otherwise in this Agreement, 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 Virtual Visit Service to avoid payment for a service that cannot be provided to you.
11.2. Fulfillment and Shipping
Any prescription or other 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. If, for any reason, we determine that we cannot ship any applicable product(s) within fourteen (14) days after our receipt of a properly completed order, we will cancel your order and advise you of such action. We do not accept orders from dealers, wholesalers, or other customers who intend to resell items offered on our Service.
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). Cancellations will be subject to Company’s then-current cancellation policies. 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.
If a Service or applicable product is listed at an incorrect price due to typographical error, or error in pricing information received from a third party, we shall have the right to refuse or cancel any orders placed for the Service or applicable product listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit or debit card charged. If your credit or debit card has already been charged for the purchase and your order is canceled, we will promptly issue a credit to your credit or debit card account in the amount of the charge.
You agree to defend, indemnify, and hold harmless Company (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. YOU ACKNOWLEDGE THAT COMPANY DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS. 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 that 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 (including, but not limited to, SPONSOR ORGANIZATIONS facilitating use of or purchasing access to the service for individuals affiliated with the organization) (collectively, the “Affiliated Entities”), and their respective successors and assigns.
WARRANTIES RELATING TO PRODUCTS OR SERVICES OFFERED, SOLD AND DISTRIBUTED BY COMPANY ARE SUBJECT TO SEPARATE WARRANTY TERMS AND CONDITIONS, IF ANY, PROVIDED BY COMPANY OR THIRD PARTIES IN CONNECTION WITH THE APPLICABLE PRODUCTS OR SERVICES.
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 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 that 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, storms, lockouts, shortage of labor, problems in obtaining raw materials or production facilities, terrorism, war, invasion, disease, epidemic, failures of any public networks or transportation networks, electrical shortages, equipment shortage, 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 upon your acceptance of this Agreement and continues in force and effect 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; however, Company will provide access to you to any of your health records in Company’s possession as a result of this Agreement as may be required under applicable legal, ethical, and professional obligations. Sections 1.1 (Eligibility) through 1.6 (Not an Insurance Product), 1.8 (Users) through 1.12 (Service Location), 2 (User Content) through 8 (Third Party Materials), and 11 (Indemnity) through 19 (Third Party Terms) 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 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 County, New York State 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 New York County, New York State 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 protected] 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.
16.4. Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or Company may choose to pursue a Claim in court and not by arbitration if (a) the Claim qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to Company’s Legal Department, 387 Park Ave South, 9th Floor, NY, NY 10016. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with Company through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with Company. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Claim in arbitration or small claims court.
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, or for use on our website. You may not: (i) create multiple User Accounts; (ii) modify, disassemble, decompile, or reverse engineer the Mobile Applications, except to the extent that such restriction is expressly prohibited by law; (iii) 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; (iv) make any copies of the Mobile Applications; (v) 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 (vi) 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 “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 this 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 this Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to this Agreement as it relates to Company’s Google-Sourced Software.
17.4. Geolocation Terms
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 your electronic communications, including email communications, SMS text messages about the Service. You understand that SMS text messages and unencrypted emails are not secure and run the risk of being intercepted by unauthorized parties. Our Platform has a built-in text messaging function with security controls. You understand that if you choose to send us text messages or emails outside of the Platform, we may respond and that these information exchanges may not be secure and you accept that risk.
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 and the Member 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; (iv) any other disclosures, notices, or communications in connection with the registration, opening, and maintenance of your Membership Plan or User Account or other transaction communications relating to the Services; and (v) any marketing communications related to the Service. Such electronic communications may include your name and certain information about your use of the Service, including health-care information that you received on the Service and the type and 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 and mobile phone number you have provided to us, or the hardware or software you use to view your information or your email address.
You may not access or use certain features of 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 your consent in order to completely withdraw from 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 [email protected].
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 Services 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 protected]. 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 (i) 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 (ii) 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 this 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 this 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 this Agreement give any third parties any right of subrogation or action over or against you, 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 15.3, 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 email, 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 http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to Company’s legal and finance departments as follows: By mail to General Counsel, 387 Park Ave South, 9th Floor, NY, NY 10016; or by email to [email protected]. We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice.
Please contact us at [email protected] 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 email 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.
20. Third-Party Terms
The following terms and conditions apply with respect to certain Third Party Materials, to the extent set forth below:
20.1. Sydney Care/Sydney Health
The terms governing Paid Services in this Agreement do not apply to Sydney Care/Sydney Health users.
You understand and agree not to hold Company liable for any adverse effect that actions (whether intentional or unintentional) may cause to any other accounts you hold. You agree to not process stolen cards or unauthorized cards through your Stripe and/or Company account. K Health’s relationship with Stripe, if any, is merely contractual in nature, as Stripe is nothing more than a third-party vendor to K Health and is in no way subject to K Health’s direction or control; thus, their relationship is not, and should not be construed as, one of fiduciaries, franchisors-franchisees, agents-principals, employers-employees, partners, joint venturers or the like.
Through an arrangement with CommonWell Health Alliance, Inc. (“Alliance”), we may have the ability to import Health Data (as defined below) in connection with services for the purposes of patient registration, enrollment, linking, and critical health care record retrieval (such services, “Alliance Services”). You will need to enter your Alliance account login credentials in order to access the Alliance Services, which may be provided to you upon your request to Company. By using such Alliance Services, you acknowledge and agree that your Health Data may be used and disclosed by Alliance through its service provider and disclosed to other third parties, solely as necessary to provide the Alliance Services. You also acknowledge that Alliance and any of its affiliates, service providers, or subcontractors may de-identify certain protected health information and store health data and de-identified protected health information for the sole purposes of performance testing, troubleshooting, and improving their services. Additionally, you acknowledge that your consent was (i) made with full transparency and education; (ii) only made after you had sufficient time to review any applicable educational material; (iii) commensurate with the circumstances for why health information is exchanged; (iv) not used for discriminatory purposes or as a condition for receiving medical treatment; (v) consistent with patient expectations; and (vi) revocable at any time.
Additionally, you acknowledge and agree that: (i) Alliance, through service providers, provides the technology and services to allow you to request and disclose PHI, and that, as such, Alliance and its service provides give no representations or guarantees about the accuracy or completeness of the PHI disclosed through the Alliance Services; (ii) PHI disclosed or received using the Alliance Services may not be a complete clinical record or history with respect to any individual, and it is the sole responsibility of any treating health care provider to confirm the accuracy and completeness of any PHI or clinical records used for treatment purposes and to obtain whatever information the provider deems necessary for the proper treatment of the patient; (iii) you are solely responsible for any decisions or actions taken involving patient care or patient care management, whether or not those decisions or actions were made or taken using information received through the Alliance Services; and (iv) Alliance and its service providers assume no responsibility or role in the care of any patient.
“Protected Health Information” or “PHI” has the meaning set forth in 45 C.F.R. 160.103, as applied to the information created, received, transmitted, or maintained through the Alliance by or on behalf of you.
“Health Data” means health information, including information and PHI that is received, transmitted, stored, or maintained through the Alliance Services.
Your use of Alliance Services is subject to additional policies, as made available by Alliance at http://www.commonwellalliance.org/data-and-security, which you should review. You acknowledge and agree that Alliance is a third-party beneficiary to this Agreement as it relates to your use of Alliance Services.