Please read these Terms carefully and in their entirety before using the Services. They cover important information about Services provided to you and any charges, taxes, and fees we may bill you. These Terms include information about future changes to these Terms, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
1. The Basics of Using Calibrate.
To use many of the Services, you may be required to sign up for a user account, select a password and username (“Calibrate User ID”), and provide us with certain information, such as your contact information. You promise to provide us with accurate, complete and updated registration information about yourself. You may not select as a Calibrate User ID a name that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
You represent and warrant that you are an individual of legal age in your state of residence to enter into a binding contract. If you are using or participating in the Program as a personal representative of another person as such person’s parent, guardian, conservator or custodian (“Family Member”), you agree to these Terms on behalf of such Family Member and you represent and warrant that you have legal authority to do so and to provide consent for the treatment of the Family Member.
You may only use the Services for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. Calibrate and the Practices (defined below) operate subject to state and federal regulations, and some Services may not be available in your state or country. You represent that you are not a person barred from enrolling for and/or receiving the Services under the laws of the United States or other applicable jurisdictions in which you may be located. Access to and use of the Services is limited exclusively to users located in states within the United States where the Services are available. Accessing the Services from jurisdictions where content is illegal, or where we do not offer Services, is prohibited. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.
You will not share your Calibrate User ID, account or password with anyone and you must also protect the security of your Calibrate User ID, account, password and any other access tools or credentials. You are responsible for any activity associated with your Calibrate User ID and account. You must notify Calibrate promptly of any unauthorized use of your Calibrate User ID by emailing email@example.com.
2. Providers; Practices.
Health care professionals (“Providers”) utilize the Services as a way to coordinate access to certain health care services for you through the Program. You may use the Services to connect via telehealth with Providers, accountability coaches (“Coaches”) and Calibrate’s support team. Providers provide medical services for the Program and each Provider exercises independent medical judgment in the delivery of care or advice through the Program. Each Provider is employed or contracted by a professional practice that is independently owned by a licensed physician, not Calibrate. Such practices are collectively referred to in these Terms as the “Practices'' and individually each referred to in these Terms as a “Practice.” All references to Practice or Practices in this Agreement shall be deemed to include all Providers as well as Calibrate Health Medical P.C., Medical Services of North Madison Square Park, P.C., Calibrate Health Medical of New Jersey, P.C., Calibrate Health and Medical of California, P.C., Calibrate Health Medical of Texas, P.A., Calibrate Health Medical of Kansas, P.A., Calibrate Health Medical of Hawaii Professional Corp, and Calibrate Health Medical of Alaska. Calibrate contracts with and provides certain management and administrative services for and on behalf of the Practices. Calibrate itself does not provide any health care services nor does Calibrate exercise control or direction over the means, methods or manner by which any Practice or Provider exercises professional judgment in the provision of clinical services. Similarly, Calibrate is not responsible for the quality or appropriateness of the care any Provider renders to you.
Providers who deliver the Program through the Services are independent professionals practicing within a group of independently owned professional Practices. Calibrate does not offer medical advice or diagnoses, engage in the practice of medicine or any other licensed profession, and does not interfere with the practice of medicine or any other licensed profession by Providers, each of whom is responsible for his or her services and compliance with the requirements applicable to his or her profession and license. Calibrate does not employ or in any way supervise or control the Providers providing care to you, and Calibrate is not responsible for the quality or appropriateness of the care the Providers render to you. Although some Content (as defined below) may be created and/or provided by physicians, the provision of such Content does not create a medical professional/patient relationship between you and Calibrate. None of the Content (other than information you receive from a Provider) should be considered medical advice or an endorsement, representation or warranty that any particular medication or treatment is safe, appropriate, or effective for you.
THE SERVICES ARE NOT, AND SHOULD NEVER BE USED AS, A SUBSTITUTE FOR EMERGENCY MEDICAL CARE. IF YOU HAVE A MEDICAL OR MENTAL HEALTH EMERGENCY, ARE THINKING ABOUT SUICIDE OR TAKING ACTIONS THAT MAY CAUSE HARM TO YOU OR TO OTHERS, YOU SHOULD SEEK EMERGENCY TREATMENT AT THE NEAREST EMERGENCY ROOM OR DIAL 911.
3. Description of the Program.
Providers provide certain health care services via the Program using interactive audio, video, messaging and other communication and media technologies through the Services. Coaches may also provide non-clinical wellness related services through the Program.
You may have an opportunity to develop ongoing care relationships with Providers; however, your initial encounter may begin as a consultation (e.g., to determine the appropriateness for you to participate in a Program) and will not necessarily give rise to an ongoing treatment relationship with any particular Provider. For example, a Provider may determine that the Program is not appropriate for you or all of your treatment needs, and any Provider may elect to not provide certain clinical services or otherwise provide the Program to you through the Services. Your Provider reserves the right to deny care for potential misuse of the Program or for any other reason including if, in the professional judgment of your Provider, the provision of the Program is not medically or ethically appropriate.
As part of providing clinical services, Providers may order lab, imaging and other diagnostic tests, to be conducted at locations outside of the Practices, including clinical laboratories and testing centers. In addition, Providers may prescribe prescriptions for medications available from pharmacies separate from the Practices. In each case, you may incur additional costs related to such tests or prescriptions. Providers may also rely on information and materials you provide through the Services, including information and materials you may have received from your other health care providers.
In order to use or otherwise participate in the Program, you must agree to the Consent to Telehealth and acknowledge receipt of the Notice of Privacy Practices. Your ability to use or participate in the Program may require you to agree to additional terms and conditions, including but not limited to the Membership Terms & Conditions (for non-employer programs) and those related to third party (e.g. pharmaceutical manufacturers’) products and services. Although you may be required to accept such third party terms and conditions, you cannot obligate Calibrate, a Practice, or any Provider to such terms and conditions.
THIS AGREEMENT DOES NOT CONSTITUTE A HEALTH INSURANCE PRODUCT AND DOES NOT MEET ANY INDIVIDUAL HEALTH INSURANCE MANDATE THAT MAY BE REQUIRED BY FEDERAL LAW, INCLUDING THE FEDERAL PATIENT PROTECTION AND AFFORDABLE CARE ACT. THIS AGREEMENT COVERS ONLY LIMITED ROUTINE HEALTH CARE SERVICES AS DESCRIBED HEREIN. The Program consists of a direct health care service; for clarity, it is not health insurance. Practices do not bill or otherwise engage or participate with federal and state health care programs, such as Medicare and Medicaid. A Provider) may recommend that you obtain services not offered by the Practices (such as, for example, specialty services or diagnostic tests), but in no event will any Practice be responsible for the charges for any such tests or services. If you have health insurance, it is your responsibility to understand your benefits and whether your insurance might cover any recommended tests or services. Calibrate makes no representations or warranties related to whether your insurance company will make any payment on or otherwise reimburse in any manner any fees or other costs or expenses you incur in connection with the Program or any other services you may obtain.
5. Messaging and Electronic Communications.
As part of the Services, you may receive communications through the Services, including messages sent via email or SMS. By signing up for the Services and providing us with your wireless number, you confirm that you want Calibrate and the Practices to send you information that we think may be of interest to you. Calibrate may use automated dialing technology to text you at the wireless number you provided, and you agree to receive communications from Calibrate and the Practices. In addition, you represent and warrant that each Family Member on whose behalf you register for the Services or for whom you provide a wireless phone number has consented to receive communications from Calibrate and the Practices. You agree to indemnify and hold Calibrate and the Practices harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to your breach of the foregoing.
When you use the Services or send e-mails, messages, and other communications from your desktop or mobile device to Calibrate, you are communicating with Calibrate electronically. You consent to receive communications from Calibrate electronically. You agree that (a) all agreements and consents can be signed electronically and (b) all notices, disclosures, and other communications that Calibrate provides to you electronically satisfy any legal requirement that such notices and other communications be in writing. Calibrate and the Practices may contact you by telephone, mail, text, or email regarding the Program or the Services or to verify your information, which may include your or your Family Member’s health information. You understand that information contained in these communications may not be protected by encryption technology, and there is a risk that they may be read by a third party. You agree to update your contact information to ensure accuracy. Your consent to conduct actions electronically covers all interactions between you and Calibrate and the Practices (including without limitation the Providers).
Calibrate may request further information from you and you agree to provide such further information to ensure that you have not fraudulently created your Calibrate User ID. If you do not provide this information in the manner requested within fourteen (14) days of the request, Calibrate reserves the right to suspend, discontinue, or deny your access to and use of the Services and/or Program until you provide the information to Calibrate as requested.
6. Your Conduct and Responsibilities.
You represent, warrant and agree that you will not provide or contribute anything, including any Content or User Information (as defined below), or otherwise use or interact with the Services and/or Program, in a manner that:
(a) infringes or violates the intellectual property rights or any other rights of anyone else (including Calibrate);
(b) impersonates or misrepresents your identity or falsely states or misrepresents your affiliation with a person or entity;
(c) transmits any User Information that you do not have a right to transmit under any law or under contractual or fiduciary relationships;
(d) violates any law or regulation, including without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by Calibrate;
(e) is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene or otherwise objectionable, including without limitation consisting of sexually explicit content that is pornographic, obscene, or harmful to minors;
(f) denigrates any ethnic, racial, sexual, or religious group by stereotypical depiction or otherwise;
(g) makes use of offensive language or images;
(h) constitutes harassment, inappropriate behavior, inappropriate sexual advancements, verbal abuse, racist remarks, or otherwise unprofessional conduct, in each case, as determined by Calibrate;
(i) promotes physical harm of any kind against any individual or group or characterizes violence as acceptable, glamorous, or desirable;
(j) provides instructional information about illegal activities;
(k) jeopardizes the security of your Calibrate User ID, account or anyone else’s (such as allowing someone else to log in to the Services as you);
(l) attempts, in any manner, to obtain the password, account or other security information from any other user;
(m) violates the security of any computer network, or cracks any passwords or security encryption codes;
(n) runs Mailist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that are run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
(o) uploads, posts, e-mails, or otherwise transmits any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other form of solicitation;
(p) contacts other users of the Services through unsolicited e-mail, telephone calls, mailings, or any other method of communication;
(q) “crawls,” “scrapes,” or “spiders” any page, data or portion of or relating to the Services or Content (through use of manual or automated means), or deep-link to any feature or content on the Services or bypass our robot exclusion headers or any other measures we may use to prevent or restrict access to the Services;
(r) copies or stores any significant portion of Content;
(s) harvests or collects personal information about any other individual who uses the Services;
(t) contains or transmits any virus or any other programming routines that may detrimentally interfere with computer systems, files, code, programs, servers, networks or data or otherwise interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(u) interferes with or damages the Services or servers or networks connected to the Services or disobeys any requirements, procedures, policies, or regulations of networks connected to the Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing of electronic mail address information, or similar methods or technology;
(v) decompiles, disassembles, translates, reverse engineers, reverse assembles, reverse compiles or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services or otherwise attempt to alter, defraud or create false results from any executable code, information on or received by the Services;
(w) uses any content or information (including without limitation Content) available on the Services for any unauthorized purpose; or
(x) assists any third party in engaging in any activity prohibited by these Terms.
In addition to any remedies that Calibrate may have at law or in equity, if Calibrate determines, in its sole discretion, that you have violated or are likely to violate the foregoing prohibitions, Calibrate may take any action that we deem necessary to cure or prevent the violation, including without limitation, the immediate removal of User Information or related materials from the Services and termination of your right to use or access the Services or participate in a Program, and/or switching your Coaches or Providers.
7. Your Rights in the Services.
Subject to your compliance with these Terms, Calibrate grants you a limited, non-exclusive, non-transferable, non-sublicensable license to use the Services solely for your personal and non-commercial purposes and in accordance with these Terms. The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Information (as defined below) and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you without the prior consent of the owner of that Content.
Subject to these Terms, Calibrate grants each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from Calibrate. You understand that Calibrate owns the Services. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services.
The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply. A single copy of the Content may be downloaded or otherwise copied from the Services for non-commercial personal use only, provided however, that all copyright and other proprietary notices are kept intact. Any further copying, reproduction, publication, posting, transmission, or distribution of any part of the Content in any way is prohibited.
Images displayed on the Services are either the property of, or used with permission by, Calibrate. The use of these images by you, or anyone else authorized by you, is prohibited unless specifically permitted by these Terms or specific permission is provided elsewhere on the Services. Any unauthorized use of the images may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.
8. Your User Information.
Anything you post, upload, share, store, or otherwise provide through the Services, including without limitation text, photos, audio, code, instructions, requests, ideas, suggestions, comments, forms and agreements, files, videos, images and other materials is your “User Information”. You are solely responsible for all User Information you contribute to the Services. You represent that all User Information submitted by you are accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations.
Finally, you understand and agree that Calibrate, in performing the required technical steps to provide the Services to Calibrate users (including you), may need to modify your User Information to conform and adapt such User Information to the technical requirements of connection networks, devices, services, or media; the foregoing licenses include your permission to make any such required technical modifications.
In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”), Calibrate has adopted the following policy toward copyright infringement. Calibrate reserves the right to (1) block access to or remove material that Calibrate believes in good faith to be copyrighted material that has been illegally copied and distributed by any of Calibrate’s advertisers, affiliates, content providers, members or users and (2) remove and discontinue service to repeat offenders.
(1) Procedure for Reporting Copyright Infringements. If you believe that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement containing the following information to Calibrate’s Designated Agent:
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
(b) Identification of works or materials being infringed;
(c) Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Calibrate is capable of finding and verifying its existence;
(d) Contact information about the notifier including address, telephone number and, if available, email address;
(e) A statement that the notifier has a good faith belief that the material identified in (1)(c) is not authorized by the copyright owner, its agent, or the law; and
(f) A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
(2) Once Proper Bona Fide Infringement Notification is Received by the Designated Agent. Upon receipt of a proper notice of copyright infringement, we reserve the right to:
(a) remove or disable access to the infringing material;
(b) notify the individual who is accused of infringement that we have removed or disabled access to the applicable material; and
(c) terminate such individual's access to the Services if they are a repeat offender.
(3) Procedure to Supply a Counter-Notice to the Designated Agent. If the individual accused of copyright infringement believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider believes that it has the right to post and use such material from the copyright owner, the copyright owner's agent, or, pursuant to the law, the content provider may send us a counter-notice containing the following information to the Designated Agent:
(a) A physical or electronic signature of the content provider;
(b) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
(c) A statement that the content provider has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
(d) Content provider's name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s address is located, or, if the content provider's address is located outside the United States, for any judicial district in which Company is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Calibrate may, in its discretion, send a copy of the counter-notice to the original complaining party informing that person that Calibrate may replace the removed material or cease disabling access to it within 10 business days. Unless the copyright owner files an action seeking a court order against the content provider accused of committing infringement, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Calibrate’s discretion.
Please contact Calibrate’s Designated Agent at the following address:
Calibrate Health, Inc.
Attn: DMCA Designated Agent
105 West 86th Street, Suite 514
New York, NY 10024
10. Allocation of Responsibility for Content and Services.
Certain Content provided as part of or through the Services has been developed by and/or provided by Calibrate (“Calibrate Content”). Other Content may have been developed by or provided by other users or third parties. Calibrate specifically disclaims any responsibility for information or Content publicly posted or privately transmitted through the Services by anyone other than Calibrate. Your access and use any such information and Content at your own risk, and Calibrate is not liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. In addition, Calibrate cannot control and has no duty to take any action regarding how you may interpret and use the Content, including Calibrate Content, or what actions you may take as a result of having been exposed to the Content, and you hereby release Calibrate from all liability for you having acquired or not acquired Content through the Services. Calibrate cannot guarantee the identity of any users with whom you interact in using the Services and is not responsible for which users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.
If there is a dispute between participants through the Services, or between users and any third party, you agree that Calibrate is under no obligation to become involved. In the event that you have a dispute with any third party, you release Calibrate, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services.
You acknowledge and agree that the availability of Calibrate’s mobile application is dependent on the third party stores from which you download the application, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. You agree to comply with, and your license to use Calibrate’s application is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
These Terms apply to your use of all the Services, including Calibrate’s iOS applications (the “Application”) available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the Application:
(a) Both you and Calibrate acknowledge that the Terms are concluded between you and Calibrate only, and not with Apple, and that Apple is not responsible for the Application or the Content;
(b) The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
(c) You will only use the Application in connection with an Apple device that you own or control;
(d) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
(e) In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
(f) You acknowledge and agree that Calibrate, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
(g) You acknowledge and agree that, in the event of any third-party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Calibrate, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
(h) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
(i) Both you and Calibrate acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
(j) Both you and Calibrate acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
12. Updates to the Services.
Calibrate is always trying to improve the Services and its Programs, so they may change over time. Calibrate may at our discretion withdraw, suspend, or discontinue any functionality or feature of the Services, or Calibrate may introduce new features or impose limits or certain features or restrict access to parts or all of the Services or the Program. Calibrate is not responsible for transmission errors, corruption, or compromise of information carried over any local or interchange telecommunications carrier. Calibrate reserves the right to remove any Content from the Services at any time, for any reason (including but not limited to if someone alleges you contributed Content in violation of these Terms), in Calibrate’s sole discretion, and without notice. Calibrate also reserves the right to maintain, delete, or destroy all communications or information posted or uploaded to the Services in accordance with our internal record retention and/or destruction policies.
You may stop using the Services at any time. If you would like to discontinue a Program, please notify Calibrate at firstname.lastname@example.org; and you should remember that your eligibility for a refund is subject to our Refund Policy. Note that if applicable to your Program, termination of your participation in a Program is pursuant to the Membership Terms & Conditions. If you signed up for a Program through your employer, then your participation in the Program may be subject to additional terms and conditions presented to you when signing up for the Program.
Calibrate may, in its sole discretion, terminate your participation in the Program at any time for cause for the following reasons: (i) you repeatedly miss scheduled appointments, (ii) Calibrate and/or the Practices are unable to contact you for a period of time, (iii) you fail to pay any fees due, (iv) you harass or bully another individual while using the Services or conduct yourself in an indecent manner (including without limitation by attending any appointment wholly or partially nude); or (v) you fail to meet a Program’s enrollment criteria. Calibrate may suspend or terminate your use of the Services and/or your Program if, in Calibrate’s discretion, you violate the Terms and/or any other agreement applicable to you. Your eligibility to receive a refund for a terminated Program is subject to our Refund Policy.
14. Disclaimer of Warranties.
Calibrate, the Practices (including without limitation Providers) and their respective licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Calibrate, the Practices and all such parties together, the “Calibrate Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Services, and the Calibrate Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits, procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services and/or a Program. The Calibrate Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services. Services purchased or offered (whether or not following such recommendations and suggestions) are provided “AS-IS” and without any warranty of any kind from the Calibrate Parties or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, THE SERVICES AND CONTENT ARE PROVIDED BY CALIBRATE (AND THE PRACTICES AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. CALIBRATE MAKES NO WARRANTY THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, UNFAILINGLY SECURE, OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS OR (E) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL; NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CALIBRATE OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS; AND YOU SHOULD ALWAYS USE CAUTION WHEN GIVING OUT ANY PERSONAL INFORMATION ABOUT YOURSELF OR THOSE FOR WHOM YOU HAVE LEGAL AUTHORITY. SPECIFICALLY, CALIBRATE MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO: (i) THE AVAILABILITY OF ELECTRONIC OR TELECOMMUNICATION SERVICES AND ACCESS TO THE ELECTRONIC OR TELECOMMUNICATION SERVICES AT ANY TIME OR FROM ANY LOCATION; (ii) ANY LOSS, DAMAGE, OR OTHER SECURITY INTRUSION OF THE ELECTRONIC OR TELECOMMUNICATION SERVICES; AND (iii) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTINGS CONNECTED WITH THE ELECTRONIC OR TELECOMMUNICATION SERVICES. CALIBRATE DOES NOT CONTROL OR ENDORSE ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN THE SERVICES AND, THEREFORE, CALIBRATE SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN OR USE OF THE SERVICES. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU FROM OUR PERSONNEL OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THESE TERMS. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Any general advice posted or provided as part of the Services is for informational purposes only and is not intended to replace or substitute for any medical or other advice. To the maximum extent permitted by law, Calibrate disclaims any representations or warranties and expressly disclaims any and all liability concerning any treatment, action by, or effect on any person following the general information offered or provided within or through the Services. If you have specific concerns or a situation arises in which you require medical advice, you should consult with an appropriately trained and qualified medical services provider.
15. Limitation of Liability.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE CALIBRATE PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED DOLLARS ($100) OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO CALIBRATE IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
YOU SHALL AND HEREBY WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542 OR ANY SIMILAR LAW OF ANY JURISDICTION, WHICH SAYS IN SUBSTANCE THAT “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
You agree to indemnify and hold the Calibrate Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to: (a) your use or misuse of the Services (including any actions taken by a third party using your account); (b) your violation of these Terms; (c) the content or subject matter of any information (including without limitation User Information) you provide to any Calibrate Party (including without limitation any customer service agent); (d) any negligent or wrongful act or omission by you in your use or misuse of the Services, including without limitation, infringement of third party intellectual property rights, privacy rights, or negligent or wrongful conduct; and/or (e) your failure to comply with any applicable laws or regulations. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
You may not assign, transfer, or delegate these Terms or your rights or obligations hereunder, or your Calibrate account, in any way (by operation of law or otherwise) without Calibrate’s prior written consent. Calibrate may freely transfer, assign, or delegate all or any part of these Terms and any rights and obligations at any time. These Terms will be binding upon and inure to the benefit of the heirs, successors, and permitted assigns of parties.
18. Choice of Law.
These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof.
19. Arbitration Agreement.
Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Calibrate and limits the manner in which you can seek relief from Calibrate. Both you and Calibrate acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Calibrate’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in the Borough of Manhattan, City of New York, State of New York. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. Calibrate will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Calibrate will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c) Small Claims Court; Infringement. Either you or Calibrate may assert claims, if they qualify, in small claims court in the Borough of Manhattan in New York City, New York or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. YOU AND CALIBRATE WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Calibrate are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Calibrate over whether to vacate or enforce an arbitration award, YOU AND CALIBRATE WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Calibrate is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: Calibrate Health, Inc., Attn: Legal Department, 105 West 86th Street, Suite 514, New York, NY 10024 postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Calibrate to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Calibrate agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, New York, New York, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Calibrate.
20. Updates to these Terms.
We are constantly trying to improve the Services, so these Terms may need to change along with our Services. We reserve the right to change the Terms at any time, but if we do, we will place a notice through the Services, send you an email, and/or notify you by some other means. If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
All provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following terms will survive termination: any obligation you have to pay or indemnify Calibrate, any limitations on Calibrate’s liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between Calibrate and you, including without limitation the arbitration agreement. You are responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services. The failure of either you or Calibrate to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. Except as expressly set forth in the sections above regarding the Apple Application and the Arbitration Agreement, you and Calibrate agree there are no third-party beneficiaries intended under these Terms. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Calibrate agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Calibrate, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an agent of Calibrate, and you do not have any authority of any kind to bind Calibrate in any respect whatsoever.