I. ABOUT THE SERVICES
1. OSHI provides an online platform that connects inflammatory bowel disease patients (“Patients”) with licensed physicians and recognized community advocates (“Experts”), in an effort to help Patients better understand and manage their disease.
3. The Services do not fall within the criteria of a medical device pursuant to Section 201(h) of the Federal Food, Drug and Cosmetic Act because they are not intended in any way to diagnose, treat or cure conditions or diseases. Any medical content, services, information, advice or materials of any kind accessed through the Services is for general information or reference purposes only and shall not be relied upon or replace any professional, clinical or medical advice or judgment provided by a physician or other health care professional.
II. ACCOUNT REGISTRATION
1. You must create an account on the Services (a “User Account”) to visit the Services. You may create a User Account by completing the registration process set forth on the App. You are responsible for providing and maintaining current your accurate contact information, which may include name, email address, address, phone number and other account information. Telephone calls and email correspondence with OSHI may be recorded or monitored.
2. To register a User Account on the Services, you must be at least 18 years of age. If you are using the Services as an Expert, you agree that you are a licensed physician (or authorized physician staff) or a recognized community advocate, and OSHI reserves the right to request evidence of such prior to permitting such use of the Services.
3. You (and your authorized staff, if any) are the sole authorized user of your User Account. You are responsible for maintaining the confidentiality of any password and account number provided by you or OSHI for accessing the Services. You are solely and fully responsible for all activities that occur under your password or account. OSHI has no control over the use of your or any user’s account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you will cease all use and contact OSHI immediately by emailing [email@example.com ].
III. TERMS APPLICABLE TO THE SERVICES
1. License to Use Services.
2. Use of the App.
You are responsible for providing the mobile device, wireless service plan, software, Internet connections and/or other equipment or services that you need to download, install and use the App or the Services. WE DO NOT GUARANTEE THAT THE APP OR THE SERVICES CAN BE ACCESSED AND USED ON ANY PARTICULAR DEVICE OR WITH ANY PARTICULAR SERVICE PLAN. WE DO NOT GUARANTEE THAT THE APP OR THE SERVICES WILL BE AVAILABLE IN, OR THAT ORDERS FOR PRODUCTS CAN BE PLACED FROM, ANY PARTICULAR GEOGRAPHIC LOCATION. As part of the Services and to update you regarding the status of deliveries, you may receive push notifications, local client notifications, text messages, picture messages, alerts, emails or other types of messages directly sent to you outside or inside the App (“Push Messages”). You acknowledge that, when you use the App or the Services, your wireless service provider may charge you fees for data, text messaging and/or other wireless access, including in connection with Push Messages. You have control over the Push Messages settings, and can opt in or out of these Push Messages through the Services or through your mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages). Please check with your wireless service provider to determine what fees apply to your access to and use of the App or the Services, including your receipt of Push Messages from OSHI. YOU ARE SOLELY RESPONSIBLE FOR ANY FEE, COST OR EXPENSE THAT YOU INCUR TO DOWNLOAD, INSTALL AND/OR USE THE APP OR THE SERVICES ON YOUR MOBILE DEVICE, INCLUDING FOR YOUR RECEIPT OF PUSH MESSAGES FROM OSHI.
3. Mobile Software from Apple App Store.
4. Use Restrictions.
(b) You agree to protect the Services, and their proprietary content, information and other materials, from any unauthorized access or use, and you agree that you will not use the Services or such proprietary content, information or other materials except as expressly permitted herein or expressly authorized in writing by OSHI. Except as specifically permitted herein or expressly authorized in writing by OSHI, you agree that you will not directly or indirectly: (i) distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Services in any unauthorized manner, including but not limited to by trespass or burdening network capacity; (ii) use the Services in any service bureau arrangement; (iii) copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Services, any updates, or any part thereof in any form or manner or by any means; (iv) harvest or scrape any content or data from the Services, or (v) permit any third party to engage in any of the acts described in clauses (i) through (iv).
(c) You further understand and agree that you are not permitted to: (i) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Services; (ii) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the Services, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Services); (iii) use any means to discover the source code of any portion of the Services; or (iv) otherwise circumvent any functionality that controls access to or otherwise protects the Services. Any attempt to do any of the foregoing is a violation of the rights of OSHI and its licensors. If you breach these restrictions, you may be subject to prosecution and damages. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that OSHI is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using the Services.
(d) All Experts using the Services agree to do so in a professional manner in accordance with the applicable professional code of conduct. You agree to use the Services solely for their intended use and not for any unlawful purpose. You agree to maintain the confidentiality and security of the information received through the Services to the same extent as you protect your own information and in accordance with the applicable commercially reasonable industry standards.
(f) You understand that by using the Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Services at your sole risk and that OSHI shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable.
5. User Content License Grant.
6. Your Data.
7. Third Party Services and Materials.
(a) Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, you acknowledge and agree that OSHI is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. OSHI does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you.
(b) In addition, third party services and Third Party Materials that may be accessed from, displayed on or linked to from the Services are not available in all languages or in all countries. OSHI makes no representation that any third party services and Third Party Materials are appropriate or available for use in any particular location. To the extent you choose to access such services or Third Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. OSHI, and its licensors, reserve the right to change, suspend, remove, or disable access to the Services at any time without notice. In no event will OSHI be liable for the removal of or disabling of access to any such Services. OSHI may also impose limits on the use of or access to the Services, in any case and without notice or liability.
8. No Professional Advice.
The content, information and materials on the Services are intended to be a general information resource in regard to the subject matter covered, and are not intended to diagnose, treat, cure, or prevent any disease. You are encouraged to confirm the information contained herein with other sources, and to review the information carefully with your professional healthcare provider. OSHI is not engaged in rendering medical or similar professional services or advice via the Services, and the information provided is not intended to replace professional advice or medical advice offered by a physician or other professional healthcare provider. If you desire or need such services or advice, you should consult a professional healthcare provider. You should not construe OSHI’s publication of any content on Services as an endorsement by OSHI of the views expressed herein, or any warranty or guarantee of any strategy, recommendation, treatment, action or application of medication or preparation made by the author of the content. OSHI is not responsible for any health problems that may result from information or advice you receive through using the Services or from participating in the Services. If you rely on any information you receive or learn about through the Services you agree that you do so at your own risk and are voluntarily participating in these activities.
IV. DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITY.
1. YOU ARE SOLELY AND FULLY RESPONSIBLE FOR YOUR USE OF THE SERVICES, INCLUDING YOUR INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY MATERIALS, THIRD PARTY SOFTWARE OR SERVICES) ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND OSHI HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES (INCLUDING THE USE, PERFORMANCE AND SUPPORT THEREOF), EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTERFERENCE WITH ENJOYMENT, COMPLETENESS, INTEGRATION, FREEDOM FROM DEFECTS OR DISABLING DEVICES, UNINTERRUPTED USE AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. OSHI DOES NOT WARRANT THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE, (III) THAT THE SERVICES WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM OR DEVICE, OR (IV) DEFECTS IN THE SERVICES WILL BE CORRECTED. ANY ORAL OR WRITTEN ADVICE PROVIDED BY OSHI OR ITS AUTHORIZED AGENTS WILL NOT BE DEEMED TO CREATE ANY WARRANTY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OSHI OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
2. Any and all (i) suggestions for correction, change and modification to the Services and other feedback (including but not limited to quotations of written or oral feedback), information and reports provided to OSHI by you (collectively “Feedback”), and all (ii) improvements, updates, modifications or enhancements, whether made, created or developed by OSHI or otherwise relating to the Services (collectively, “Revisions”), are and will remain the property of OSHI. You acknowledge and expressly agree that any contribution of Feedback or Revisions does not and will not give or grant you any right, title or interest in the Services or in any such Feedback or Revisions. All Feedback and Revisions become the sole and exclusive property of OSHI and OSHI may use and disclose Feedback and/or Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to OSHI any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback and Revisions. At OSHI’s request, you will execute any document, registration or filing required to give effect to the foregoing assignment.
VI. ARBITRATION AND CLASS ACTION WAIVER
This Section includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a Class Action or other representative proceeding). Please read it carefully. You may opt out of the arbitration agreement by following the opt out procedure described below.
1. Informal Process First.
You agree that in the event of any dispute between you and OSHI, you will first contact OSHI and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.
2. Arbitration Agreement.
After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of OSHI’s services and/or products, including the Services, or relating in any way to the communications between you and OSHI or any other user of the Services, will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to you and OSHI. However, this arbitration agreement does not (a) govern any Claim by OSHI for infringement of its intellectual property or access to the Services that is unauthorized or exceeds authorization granted in this Agreement or (b) bar you from making use of applicable small claims court procedures in appropriate cases.
Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration. Instead, the dispute is resolve by a neutral arbitrator. Court review of an arbitration award is limited. Except to the extent the parties agree otherwise, arbitrators can award the same damages and relief that a court can award. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and OSHI are each waiving the right to a trial by jury or to participate in a Class Action. This arbitration provision will survive any termination of this Agreement.
If you wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, you must send a letter requesting arbitration and describing your claim to [ ]. The arbitration will be administered by the American Arbitration Association (AAA) under its rules including, if you are an individual, the AAA’s Supplementary Procedures for Consumer-Related Disputes. If you are not an individual or have used the Services on behalf of an entity, the AAA’s Supplementary Procedures for Consumer-Related Disputes will not be used. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879.
The number of arbitrators will be one. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The arbitration will be conducted in the English language. [New York] law will apply. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require OSHI to pay a greater portion or all of such fees and costs in order for this Section VI.2 to be enforceable, then OSHI will have the right to elect to pay the fees and costs and proceed to arbitration, or to decline to do so and have the matter resolved through the courts.
The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence will not apply to the “Class Action Waiver” section below.
If you do not want to arbitrate disputes with OSHI and you are an individual, you may opt out of this arbitration agreement by sending an email to firstname.lastname@example.org within thirty (30) days of the first of the date you access or use the Services.
Class Action Waiver
Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration.
If this Class Action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, will be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If for any reason a claim proceeds in court rather than in arbitration, you and OSHI each waive any right to a jury trial.
VII. GENERAL PROVISIONS
3. Export Laws.
You agree that you will not export or re-export, directly or indirectly the Services and/or other information or materials provided by OSHI hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.
4. U.S. Government Restricted Rights.
The Services and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
6. Injunctive Relief.
Under California Civil Code Section 1789.3, California users of the Services receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
8. Contact Us.