Cohero Health, Inc.
Last Updated: November 28, 2018
SECTION 18 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 18 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.
By accessing or using any Cohero Health website with an authorized link to this Agreement (“Site”) or downloading, installing or using any Cohero Health mobile application with an authorized link to this Agreement (“Application”), accessing or using any content, information, services, features or resources available or enabled via the Site or Application (collectively with the Site and Application, the “Services”), clicking on a button or taking any other action to signify your acceptance of this Agreement, or completing our account registration process, you agree to be bound by this Agreement and any future amendments and additions to this Agreement as published from time to time through the Site and Application and represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services and to bind that entity to this Agreement. References to “you,” “User” and “Users” in this Agreement refer to all individuals and other persons who access or use the Services, including, without limitation, any companies, organizations or other legal entities that register accounts or otherwise access or use the Services through their respective employees, agents or representatives. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Services.
Subject to Section 18.9 of this Agreement, Cohero Health reserves the right to modify this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.
If you are medical provider or accessing or using the Services on behalf of a medical provider (“Provider”), your use of the Services is also subject to any additional agreements that we have entered into with such Provider (“Supplemental Agreements”). Such Supplemental Agreements are incorporated by reference into this Agreement. To the extent there is any conflict between this Agreement and a Supplemental Agreement, the terms of the Supplemental Agreement will control with respect to the subject matter of such agreement.
1. No Medical Advice. YOU ACKNOWLEDGE AND AGREE THAT COHERO HEALTH DOES NOT PROVIDE ANY FORM OF MEDICAL CARE, MEDICAL OPINION, MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT, AND THAT COHERO HEALTH DOES NOT EVALUATE THE NEED TO SEEK MEDICAL ATTENTION, THROUGH THE SERVICES. THE CONTENTS OF THE SERVICES, SUCH AS GRAPHICS, IMAGES, INFORMATION, AND OTHER MATERIALS ARE FOR INFORMATIONAL PURPOSES ONLY. THE PROVISION OF SUCH CONTENT DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP, AND DOES NOT CONSTITUTE A MEDICAL OPINION, MEDICAL ADVICE, OR DIAGNOSIS OR TREATMENT OF ANY PARTICULAR CONDITION. THE CONTENT IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. YOU SHOULD ALWAYS SEEK THE ADVICE OF YOUR DOCTOR, PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY.
2. Description and Use of the Services. The Services include, without limitation, real-time monitoring and analysis tools that: (i) allow Users (and their parents or legal guardians, if applicable) to receive medication and other reminders, track inhaler use, measure lung function, record symptoms and triggers and provide related data and reports to Providers and individuals designated by Users as their caregivers (collectively “Caregivers”); (ii) allow Users and Caregivers to track and monitor User data and reports; (iii) allow Providers to track and monitor Users’ symptoms and progress; and (iv) allow Users and their Providers and Caregivers to communicate with each other through the Services.
3. Registration. When registering an account to purchase or use the Services (“Account”), you agree to provide only true, accurate, current and complete information requested by the registration form (the “Registration Data”) and to promptly update the Registration Data thereafter as necessary to keep it current. You represent that you are not barred from using the Services under any applicable law and that you will be responsible for all activities that occur under your Account. You agree to monitor your Account to restrict its use by unauthorized Users and agree not to share your Account or password with anyone. You further agree to notify Cohero Health immediately of any unauthorized use of your password or any other breach of the security of your Account. You agree not to create an Account using a false identity or alias or if you previously have been banned from using any of the Services. Cohero Health reserves the right to remove, deactivate or reclaim any Account at any time and for any reason. You acknowledge and agree that you have no ownership or other property interest in your Account and that all rights in and to your Account are owned by and inure to the benefit of Cohero Health. YOU WILL BE RESPONSIBLE FOR ALL ACCESS TO AND USE OF THE SERVICES BY ANYONE USING YOUR ACCOUNT WHETHER OR NOT SUCH ACCESS TO AND USE OF YOUR ACCOUNT IS ACTUALLY AUTHORIZED BY YOU, INCLUDING WITHOUT LIMITATION, ALL COMMUNICATIONS AND TRANSMISSIONS AND ALL OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, FINANCIAL OBLIGATIONS) INCURRED THROUGH SUCH ACCESS OR USE.
4. Orders. Prices are subject to change without notice. Although we strive to accept all valid orders, Cohero Health reserves the right to deny any order for any reason, including if: (i) we discover an error in pricing and/or other information about the product or service ordered or receive insufficient or erroneous billing, payment, and/or delivery information, (ii) we suspect an order has been placed using stolen payment card information or otherwise appears to be connected to fraud, or (iii) the ordered product or service is unavailable due to discontinuance or otherwise. We may also refuse any order that is connected with a previous payment dispute. If any product or service is discontinued or otherwise becomes unavailable, Cohero Health reserves the right to cancel your order and provide you a refund for the amount paid for the product or service to the extent such product or service has not been provided to you.
5. Fees and Purchase Terms.
(a) Application. We reserve the right to change the fees charged for access to the App or any Services at any time upon notice to our Users.
(b) Provider Dashboard. For Providers, any and all applicable fees with respect to access and use of the Provider dashboard will be set forth in your Supplemental Agreement(s).
(c) Product Orders. You agree to pay all fees for the products that you order.
(d) Automatic Renewal Subscriptions. All subscriptions will renew automatically until terminated in accordance with the terms of this Agreement. When you place a subscription order, you authorize Cohero Health to charge your valid credit or debit card (Visa, MasterCard, or any other issuer accepted by us) or other payment method we accept (“Payment Method”) immediately for the amount set forth on the order page plus applicable taxes for your initial subscription. By placing your subscription order, you also authorize us to charge your Payment Method again automatically at the beginning of each subsequent subscription renewal period (“Renewal Commencement Date”) at Cohero Health’s then-current price for such subscription plus applicable taxes. Each subsequent subscription renewal period will have the same duration as the initial subscription period you selected at the time of your initial order. Upon renewal of your subscription, if Cohero Health does not receive payment from your Payment Method, you agree that Cohero Health may (i) require you to pay all amounts due on your Account upon demand and/or continue to attempt to charge your Payment Method until payment is received and (ii) either terminate or suspend your subscription. If your Account is deactivated for nonpayment, and we subsequently reactivate your Account upon receipt of payment, for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription by 11:59 p.m. PST on the day prior to your next Renewal Commencement Date by logging into your Account and using the “Change/Cancel Membership” feature of your “Account Settings” page or by contacting Cohero Health by email at email@example.com and requesting cancellation. If you cancel your subscription, you may continue to use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. Your Renewal Commencement Date ordinarily will be synchronized with the day of the month on which you signed up for your initial subscription. For example, if you sign up for a monthly subscription on October 1st, your subscription would renew and your payment account would be charged immediately following the end of the 1st day of every subsequent calendar month until you cancel. If you sign up for a monthly subscription on the 31st day of a given month, your subscription would automatically renew and your account will be charged immediately following the end of the last day of each subsequent calendar month until you cancel (e.g., on November 30th, December 31st, January 31st, February 28th, etc.) If you wish to cancel your subscription before incurring a charge for your next scheduled subscription renewal period, you must do so no later than 11:59 p.m. Eastern time on the day before your next Renewal Commencement Date. If you are uncertain about your next scheduled Renewal Commencement Date, please email us at firstname.lastname@example.org.
5.3 Refunds. All fees paid are non-refundable.
5.4 Discounts and Promotions. We may, in our sole discretion, create discounts and promotional codes or other features or benefits, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Unless otherwise expressly stated on the applicable Promo Code, Promo Codes may only be used once per person. Only Promo Codes sent to you through official Cohero Health communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not redeemable for cash; and (vi) may expire prior to your use. Unless otherwise stated at the time of issuance, all Promo Codes are valid only for a single use and expire 180 days after issuance.
6. User Content.
6.1 Responsible Party for Content. You acknowledge that all content is the sole responsibility of the party from whom such content originated. This means that each User is entirely responsible for all information, data, and other content that that User posts, transmits or otherwise makes available to other Users through the Services (“User Content”). Cohero Health has no obligation to pre-screen any content. You use all User Content and interact with other Users at your own risk. Without limiting the foregoing, Cohero Health reserves the right in its sole discretion to pre-screen, refuse, or remove any content. Cohero Health shall have the right to remove any content that violates this Agreement or is otherwise objectionable.
6.2 Ownership of Your Content. Cohero Health does not claim ownership of any User Content you make available on the Services (“Your Content”). However, when you as a User post or publish Your Content on or in the Services, you represent that you have all of the necessary rights to grant Cohero Health the license set forth in Section 6.3. Except with respect to Your Content, you agree that you have no right or title in or to any content that appears on or in the Services.
6.3 License to Your Content. Subject to any applicable Account settings, you grant Cohero Health a right to copy, use, display Your Content (in whole or in part) and create derivative works from Your Content for purposes of operating and providing the Services. You hereby grant Cohero Health a nonexclusive, irrevocable, perpetual, worldwide, sublicenseable license to use and create derivative works of Your Content for its own business purposes, including without limitation, to improve the Services, analyze Users’ use of the Services, and develop new products and services. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NO EXPECTATION OF CONFIDENTIALITY OR PRIVACY WITH RESPECT TO INFORMATION THAT YOU MAKE AVAILABLE ON THE PUBLIC AREAS OF THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY PERSONAL INFORMATION. Note that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services
6.4 Community Use Guidelines. You agree not to use the Services for any purpose prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third-party to) (a) take any action or (b) make available any content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Cohero Health’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Cohero Health; or (vi) discloses any personal information about another person without the express written consent of such person (except if you are a parent or legal guardian disclosing information about your child who is a Patient to your child’s Provider).
7. Feedback. You agree that your submission of any ideas, suggestions, documents, and/or proposals to Cohero Health (“Feedback”) is at your own risk and that Cohero Health has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Cohero Health a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights.
8. Ownership of and License to Use Services.
8.1 Use of the Services. Except with respect to User Content, Cohero Health and its suppliers own all rights, title and interest in the Services. The Services are protected by copyright and other intellectual property laws throughout the world. Subject to this Agreement, Cohero Health grants you a limited license to use the Services (i) if you are an individual consumer purchaser, solely for your personal non-commercial purposes and (ii) if you are a commercial purchaser, solely for the purposes of providing healthcare related services. You may only download and install a copy of the Application on mobile devices that you own or control. Any future release, update or other addition to the Services shall be subject to this Agreement. Cohero Health, its suppliers, and its service providers reserve all rights not granted in this Agreement.
8.2 Trademarks. Cohero Health’s stylized name and other related graphics, logos, service marks and trade names used on or in connection with the Services are the trademarks of Cohero Health and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
9. Restrictions on Use of the Services. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Services or any portion of Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Cohero Health’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services; (f) you shall not access Services in order to build similar or competitive products or services; (g) except as expressly stated herein, no part of Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services; (i) you shall not circumvent, remove, alter, deactivate, degrade, or thwart any of the protections of the Services; (j) you will not take any action that imposes or may impose (in our sole determination) an unreasonable or disproportionately large load on our technical infrastructure; and (k) you will not interfere with or attempt to interrupt the proper operation of the Services through any virus, device, information collection or transmission mechanisms, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Services through hacking, password or data mining, or any other means. Any future release, update or other addition to Services shall be subject to this Agreement. Cohero Health reserves all rights not granted in this Agreement. Any unauthorized use of Services terminates the licenses granted by Cohero Health pursuant to this Agreement. The foregoing sentence is not exclusive of any other rights or remedies that may be available to Cohero Health under law, equity or otherwise.
10. Third-Party Services.
10.1 Third-Party Websites, Applications & Ads. The Services may contain links to third-party services such as third party websites, applications, or ads (“Third-Party Links”). When you click on such a link, we will not warn you that you have left the Services. Cohero Health does not control and is not responsible for Third-Party Links. Cohero Health provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is at your own risk.
10.2 App Stores. You acknowledge and agree that the availability of the Application is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play Store (“App Store”). You acknowledge that this Agreement is between you and Cohero Health and not with the App Store. Cohero Health, not the App Store, is solely responsible for Services, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Services, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using Services, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of this Agreement and will have the right to enforce them.
10.3 Additional Terms for Apple Apps. With respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. In addition, the following terms apply to any App Store Sourced Application:
(a) You acknowledge and agree that (i) this Agreement is concluded between you and Cohero Health only, and not Apple, and (ii) Cohero Health, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Cohero Health and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Cohero Health.
(d) You and Cohero Health acknowledge that, as between Cohero Health and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with the App Store Sourced Application’s use of the HealthKit framework.
(e) You and Cohero Health acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Cohero Health and Apple, Cohero Health, 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.
(f) You and Cohero Health acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, 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 related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
11. Indemnification. You agree to indemnify and hold Cohero Health, its parents, subsidiaries, affiliates, officers, employees, contractors, agents, business partners, and licensors (collectively, the “Cohero Health Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your misuse of any content and/or the Services; (c) your violation of this Agreement; (d) your violation of any rights of any Users, Cohero Health, or any other third party, including without limitation, any intellectual property or privacy right; (e) your violation of any applicable laws, rules, or regulations; (f) if you are a Provider, your violation of any professional codes of conduct or other standards applicable to your profession; or (g) any claims brought against any Cohero Health Parties arising from your acts or omissions. Cohero Health reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Cohero Health in asserting any available defenses. You agree that the provisions in this Section will survive any termination of this Agreement or your access to Services.
12. Provider Warranties. Provider hereby represents and warrants that: (i) neither any communications or other content provided by Provider through the Services nor Provider’s provision thereof will conflict with or violation any applicable law, rule, or regulation, or any guidelines, rules or regulations required of professionals in Provider’s profession; (iii) Provider’s conduct on the Services will at all times be professional; and (iv) Provider has all necessary qualifications, registrations, and licenses required by the applicable law and Provider is in good standing and qualified to provide the Provider’s services.
13. Disclaimer of Warranties and Conditions.
13.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF SERVICES IS AT YOUR SOLE RISK, AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE COHERO HEALTH PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. COHERO HEALTH PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) THE INFORMATION, CONTENT, AND DATA ON THE SERVICES ARE ACCURATE; (3) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (4) ANY ERRORS IN THE SERVICES WILL BE CORRECTED.
13.2 YOU ACKNOWLEDGE AND AGREE THAT THE COHERO HEALTH PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE COHERO HEALTH PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
13.3 NONE OF THE COHERO HEALTH PARTIES ENDORSE OR RECOMMEND ANY USER CONTENT OR PROVIDER SERVICES MADE AVAILABLE THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY OPINION, RECOMMENDATION OR ADVICE EXPRESSED BY ANY USER (INCLUDING WITHOUT LIMITATION, PROVIDERS) THROUGH THE SERVICES. YOU ACKNOWLEDGE THAT THE SERVICES MERELY ACT AS A CONDUIT THAT ALLOWS USERS TO COMMUNICATE. NONE OF THE COHERO HEALTH PARTIES IS A PARTY TO, OR HAS ANY RESPONSIBILITY OR LIABILITY WITH RESPECT TO, ANY TRANSACTION, COMMUNICATION OR INTERACTION BETWEEN YOU AND ANY OTHER USER, INCLUDING WITHOUT LIMITATION, YOUR PROVIDER, OR FOR ANY RESULTS CAUSED BY RELYING ON USER CONTENT OR PROVIDER SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEATH, BODILY INJURY OR HEALTH PROBLEMS YOU MAY SUFFER.
13.4 THE CONTENT PROVIDED ON THE SERVICES AND IN ANY OTHER COMMUNICATIONS FROM OR PROVIDED THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY CONTENT CREATED BY OR MADE AVAILABLE BY COHERO HEALTH, IS NOT INTENDED AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU THINK YOU OR YOUR FAMILY MEMBER(S) MAY HAVE A MEDICAL EMERGENCY, CALL 911 OR GO TO THE EMERGENCY ROOM IMMEDIATELY.
13.5 THE SERVICES MAY CONTAIN TECHNICAL INACCURACIES, TYPOGRAPHICAL ERRORS, OR OMISSIONS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, PRICING, OR OTHER ERRORS LISTED ON OR OMITTED FROM THE SERVICES. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE SERVICES AT ANY TIME WITHOUT NOTICE.
13.6 CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
14. Limitation of Liability.
14.1 Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COHERO HEALTH PARTIES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT COHERO HEALTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE COHERO HEALTH PARTIES ARE LIABLE TO YOU EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO COHERO HEALTH BY YOU DURING THE TWELVE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO RESIDENTS OF THE STATE OF NEW JERSEY.THE LAWS OF SOME OTHER STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE SET FORTH IN THIS SUBSECTION MAY NOT APPLY TO YOU AND YOU MIGHT HAVE OTHER RIGHTS.
14.3 User Content and Settings. The Cohero Health Parties assume no responsibility for the timeliness, deletion, mis-delivery, or failure to store any content, User communications, or personalization settings.
14.4 Basis of the Bargain. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Cohero Health and you.
15. Procedure for Making Claims of Copyright Infringement. If you believe content posted on the Services infringes your copyright rights, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Services of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Correspondence to our Copyright Agent regarding notice of claims of copyright infringement should be addressed to: Cohero Health, Inc., 12 E. 49th Street, New York, NY 10017,Attn: Copyright Agent.
16. Termination. At its sole discretion, Cohero Health may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, Cohero Health reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you and unpaid amounts you owe to Cohero Health for any purchases will remain due. All provisions which by their nature are intended to survive, shall survive termination of this Agreement, including without limitation, this termination provision and the provisions regarding intellectual property ownership, feedback, warranties, warranty disclaimers, limitation of liability, indemnity, and dispute resolution.
17. International Users. Services can be accessed from countries around the world and may contain references to services, products, and content that are not available in your country. These references do not imply that Cohero Health intends to announce or promote the availability or such services, products, or content in your country. Services are controlled and offered by Cohero Health from its facilities in the United States of America. Cohero Health makes no representations that Services are appropriate or available for use in other locations. Those who access or use Services from other countries do so at their own volition and are responsible for compliance with local law.
18. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Cohero Health and limits the manner in which you can seek relief from us.
18.1 Applicability of Arbitration Agreement. You agree that any dispute between you and us relating in any way to the Services or this Agreement, will be resolved by binding arbitration, rather than in court, except that (1) you and we may assert claims in small claims court if the claims qualify; and (2) you or Cohero Health may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
18.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Cohero Health, Inc., 12 E. 49th Street, New York, NY 10017, Attn: Legal Department. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and you cannot obtain a waiver from JAMS, Cohero Health will pay them for you.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the U.S. county where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
18.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and Cohero Health. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual party under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
18.4 Waiver of Jury Trial. YOU AND COHERO HEALTH HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT (OTHER THAN SMALL CLAIMS COURT AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Cohero Health are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 18.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
18.5 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE FOR CLAIMS COVERED BY THIS ARBITRATION AGREEMENT, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER OR PERSON. If a decision is issued stating that applicable law precludes enforcement of any of this Section 18.5’s limitations as to a given claim for relief, then the applicable claim must be severed from the arbitration and brought into the state or federal courts located in New York in accordance with Section 19.4. All other claims shall be arbitrated.
18.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address: Cohero Health, Inc., 12 E. 49th Street, New York, NY 10017, Attn: Legal Department or email to email@example.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.
18.7 Severability. Except as provided in Section 18.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
18.8 Survival of Agreement. This Arbitration Agreement will survive the termination or expiration of the Agreement or your relationship with Cohero Health.
18.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Cohero Health makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Cohero Health at the following address: Cohero Health, Inc., 12 E. 49th Street, New York, NY 10017, Attn: Legal Department.
19. General Provisions.
19.1 Electronic Communications. The communications between you and Cohero Health use electronic means, whether you visit Services or send Cohero Health e-mails, or whether Cohero Health posts notices on Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Cohero Health in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications related to these Agreement that Cohero Health provides to you electronically satisfy any legal requirement that such communications would satisfy if they were made in writing in a physical document. The foregoing does not affect your statutory rights.
19.2 Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Cohero Health’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. This Agreement will inure to the benefit of all permitted successors and assigns.
19.3 Force Majeure. Cohero Health shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
19.4 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Cohero Health agree that all claims and disputes arising out of or relating to this Agreement or the Services will be litigated exclusively in the state courts located in New York County, New York or federal courts located in the Southern District of New York.
19.5 Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT.
19.6 Notice. Where Cohero Health requires that you provide an e-mail address, you are responsible for providing Cohero Health with your most current e-mail address. In the event that the last e-mail address you provided to Cohero Health is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Cohero Health’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Cohero Health at the following address: Cohero Health, Inc., 12 E. 49th Street, New York, NY 10017, Attn: Joe Condurso. Such notice shall be deemed given when received by Cohero Health by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
19.7 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: Cohero Health, Inc., 12 E. 49th Street, New York, NY 10017 or e-mail firstname.lastname@example.org. PLEASE DO NOT EMAIL ANY CONFIDENTIAL INFORMATION TO COHERO HEALTH. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
19.8 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
19.9 Severability. Subject to Section 18.7, if any portion of these Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
19.10 Export Control. You may not use, export, import, or transfer Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Services, and any other applicable laws. In particular, but without limitation, Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
19.11 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
19.12 Section Headings. The section headings are provided merely for convenience and shall not be given any legal import.
19.13 Entire Agreement. This Agreement are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.