Terms of Service
Last Updated: October 23rd 2019
Welcome to our practice!
These Terms of Service (these “Terms of Service”) are entered into between [Decoded Health, Inc. and its affiliated medical groups, including QuantumV Medical Group, Inc.] (collectively, “QVMD,” “Practice,” “us” or “we”) and you, as a patient of the Practice and user of the Services, as defined herein (“you”, “your” or “User”). These Terms of Service govern your use of (a) the Practice Services (as defined in Section I), (b) our “mobile application (the “App”), (c) our website available at www.qvmd.com or any successor site (the “Website”), (d) all content, tools, features and functionalities offered on or through our App or Website, and (e) all other services provided by us (items (a) through (e) collectively, the “Services”).
BY USING THE SERVICES, YOU ACCEPT ALL OF THE PROVISIONS OF THESE TERMS OF SERVICE AND REPRESENT TO US THAT YOU ARE AT LEAST 18 YEARS OF AGE AND LEGALLY COMPETENT TO ENTER INTO AND AGREE TO THESE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE, THEN YOU ARE NOT AUTHORIZED TO USE ANY OF PRACTICE’S SERVICES.
The Services are currently available only to individuals who reside in the United States. If you reside outside the United States, then you are not authorized to use the Services. If you are accepting these Terms of Services for another person in your family (a “Family Member”) including, in your capacity as a parent, guardian, conservator, or custodian of such Family Member, then you agree to the terms and conditions of these Terms of Service on behalf of such Family Member and you hereby represent and warrant that you have the authority to enter into these Terms of Service on such Family Member’s behalf.
THESE TERMS OF SERVICE INCLUDE (1) AN ARBITRATION PROVISION; (2) A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST US; AND (3) A RELEASE BY YOU OF ALL CLAIMS FOR DAMAGE AGAINST US THAT MAY ARISE OUT OF YOUR USE OF THE SERVICES. BY USING ANY OF THE SERVICES, YOU AGREE TO THESE PROVISIONS.
- ABOUT THE SERVICES
- Practice Services. As a patient of the Practice, you will receive certain medical services described on the Website or in our mobile app (the “Practice Services”), subject to your payment of the Practice Fees described below. Please note that the Practice Fees will only apply to the Practice Services specifically described on the Website or mobile app. We may add or discontinue any or all of the Practice Services at any time, in our sole discretion, but we shall provide you with at least thirty (30) days’ advance written notice prior to any change to the Practice Services taking effect.
- Non-Covered Services. You understand and acknowledge that you are responsible for any charges incurred for health care services (a) performed outside of the Practice Services, including without limitation, emergency room visits, hospital and specialist care and imaging and lab tests performed by third parties; and/or (b) provided by the Practice and/or its affiliated healthcare providers, but not specifically described on the [Website] (collectively, “Non-Covered Services”). WE STRONGLY ENCOURAGE YOU TO MAINTAIN HEALTH INSURANCE WHILE YOU ARE A PATIENT OF THE PRACTICE TO COVER SUCH NON-COVERED SERVICES. YOU MAY NOT USE THE PRACTICE SERVICES FOR EMERGENCY OR URGENT MEDICAL MATTERS. FOR ALL URGENT OR EMERGENCY MATTERS, PLEASE IMMEDIATELY CALL 911 OR GO TO THE NEAREST EMERGENCY ROOM OR URGENT CARE FACILITY.
- App and Website. The App and the Website provide certain management and administrative services designed to complement your use of the Practice Services along with such other content, tools, features and functionality that may be offered on or through our App or Website from time to time (collectively, the “App and Website Services”). For example, you may use the App to ask questions and leave messages for a Practice healthcare provider or to schedule appointments for physician visits at one of the Practice’s medical clinics. The App and Website may provide you with certain information and data; however, you acknowledge and agree that the App, Website and all App and Website Services do not provide or claim to provide any medical or similar professional services or advice, and the information provided via the App and Website Services is not intended to replace medical or other professional advice offered by a physician or other professional healthcare provider. We are not responsible for any health problems that may result from information you receive through using the App and Website Services. You shall be solely responsible for all uses, medical and business judgments made and for care provided using the App and Website Services.
- Confidentiality of User Account. You are the sole authorized user of your User Accounts. You are responsible for maintaining the confidentiality of any password and account name for accessing the Services. You are solely and fully responsible for all activities that occur under your password or User Account. Should you suspect that any unauthorized party may be using your password or User Account or you suspect any other breach of security, please contact QVMD immediately by emailing firstname.lastname@example.org .
- Billing and Payment
- Practice Fee. You agree and acknowledge that, for so long as you or a Family Member is a patient of the Practice, you will be responsible for a monthly subscription fee and related taxes in U.S. Dollars (the “Practice Fee”) in accordance with the fee schedule set forth on the Website applicable to your subscribed membership (“Practice Fee Schedule”).
- Payment Schedule. The Practice Fee will be due in advance on the first day of each month commencing on the Effective Date, and will cover your (or your Family Member’s) Practice Services for such month (e.g. if you sign-up on November 15th, your Practice Services will become effective on December 1st, and the Practice Fee for the month of December is due on December 1st). Practice Fees will not be pro-rated for any month. Any fees or charges that are not included in the Practice Fee (i.e. fees for Non-Covered Services) will be due at the time of service. You agree that (a) our third party payment processor may store and continue billing your payment method (e.g. credit card) to avoid interruption of the Services, and (b) we may calculate taxes payable to you based on the billing information that you provided us at the time of enrollment. Payment can be made by credit card, debit card or other means that we may make available. We utilize a third party payment processor to manage payments and you hereby agree to agree to the terms and conditions applicable to your use of such payment processor’s services.
- Late Fee. If the Practice Fee is not paid by the fifteenth (15th) day of each month, you may be subject to a late charge of $10 dollars and Practice may, in its sole discretion, terminate your participation as a patient in the Practice and/or your access to the Services.
- Cancelled Appointment Fees. If you make an in-person appointment at one of the Practice’s medical clinics, you understand and agree that if you fail to show for your appointment or you cancel your appointment with less than 24 hours’ notice, we may charge you a cancellation/no-show fee for such appointment.
- Changes to the Practice Fee. We may amend the Practice Fee Schedule at any time, in our sole discretion, for any reason, upon at least thirty (30) days’ prior written notice to you, unless such change is caused by a change in law or regulation, in which case we may give you notice of an immediate fee change.
- INSURANCE DISCLAIMER
- YOU UNDERSTAND AND ACKNOWLEDGE THAT THE PRACTICE SERVICES PROVIDED TO YOU AS A PATIENT OF THE PRACTICE PURSUANT TO THESE TERMS DOES NOT CONSTITUTE A CONTRACT OF INSURANCE, NOR DOES THE PRACTICE PROVIDE COMPREHENSIVE HEALTH INSURANCE COVERAGE.
- You understand and acknowledge that the Practice Services provided pursuant to these Terms of Service are not covered by any public or private health insurance program (“Insurance Program”). You understand and agree to be wholly responsible for the payment of any and all costs due and that may become due pursuant to these Terms of Service, regardless of the existence of coverage for such items or services under any Insurance Program.
- You understand and agree not to submit a claim, bill to or seek reimbursement from any Insurance Program for any item or service received pursuant to these Terms of Service. You understand that you will not be able to appeal any determinations that the Insurance Program will not pay for any item or service received pursuant to these Terms of Service.
- TERMS APPLICABLE TO THE PRACTICE SERVICES
- Authorization. In using the Practice Services, you hereby give us and any of our healthcare practitioners and providers permission to provide medical care for you (or your Family Member). You may withdraw this consent at any time by ceasing use of the Practice Services.
- TERMS APPLICABLE TO THE app and website SERVICES
- License. Subject to your compliance with these Terms of Service, QVMD hereby grants to you, a personal, nonexclusive, nontransferable, revocable, limited license (without the right to sublicense) to (a) access and use the App and Website Services, and (b) to download a single copy of the App onto your own mobile device to use the App and Website Services. This license includes a right to access or use any third party software or services embedded or included in any portion of the App or Website in connection with your permitted use of the App and Website Services. These Terms of Service are limited to the intellectual property rights of QVMD and its affiliates and licensors and do not include any rights to other patents or intellectual property. We reserve any and all rights not expressly granted to you pursuant to these Terms of Service. The limited rights granted to you to access and use the App and Website Services comprise a limited license and do not constitute the sale of any software program.
- You agree that: (i) you will only use the App and Website Services for lawful purposes; (ii) you will not use the App and Website Services for sending or storing any unlawful material or for fraudulent purposes or to engage in any illegal, offensive, indecent or objectionable conduct; (iii) you will not use the App and Website Services to advertise, solicit or transmit commercial advertisements or any other form of solicitation or unauthorized communication, including “spam”; (iv) you will not use the App and Website Services to cause nuisance, annoyance or inconvenience; (v) you will not impair the proper operation of the App and Website Services’ network; (vi) you will not try to harm the App and Website Services in any way whatsoever; and (vii) you will only use the Services App and Website for your own personal use and will not resell it to a third party or otherwise use it for commercial purposes.
- You agree that you will not directly or indirectly: (i) distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the App and Website Services in any unauthorized manner, including but not limited to by trespass or burdening network capacity; (ii) use the App and Website Services in any service bureau arrangement; (iii) copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the App and Website Services, any updates, or any part thereof in any form or manner or by any means; (iv) harvest or scrape any content or data from the App and Website Services, or (v) permit any third party to engage in any of the acts described in clauses (i) through (iv).
- You further understand and agree that you are not permitted to: (i) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the App and Website Services; (ii) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the App and Website Services, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the App and Website Services); (iii) use any means to discover the source code of any portion of the App and Website Services; or (iv) otherwise circumvent any functionality that controls access to or otherwise protects the App and Website Services.
- QVMD, and its licensors, reserve the right to change, suspend, remove, or disable access to the App and Website Services at any time without notice. In no event will QVMD be liable for the removal of or disabling of access to any such App and Website Services. QVMD may also impose limits on the use of or access to the App and Website Services, in any case and without notice or liability.
- Internet Charges. You are responsible for providing the mobile device, wireless service plan, Internet connections and/or other equipment or services that you need to download, install and/or use the App, the Website or the App and Website Services. WE DO NOT GUARANTEE THAT THE APP, THE WEBSITE OR THE APP AND WEBSITE SERVICES CAN BE ACCESSED AND USED ON ANY PARTICULAR DEVICE OR WITH ANY PARTICULAR SERVICE PLAN. WE DO NOT GUARANTEE THAT THE APP, THE WEBSITE OR THE APP AND WEBSITE SERVICES WILL BE AVAILABLE IN ANY PARTICULAR GEOGRAPHIC LOCATION. As part of providing the App and Website Services to you and to update you regarding the status of deliveries, you may receive push notifications, text messages, picture messages, alerts, emails or other types of messages directly sent to you outside or inside the App or Website (“Push Messages”). You acknowledge that, when you use the App, the Website or the App and Website Services on a mobile device, your wireless service provider may charge you fees for data, text messaging and/or other wireless access. YOU ARE SOLELY RESPONSIBLE FOR ANY FEE, COST OR EXPENSE THAT YOU INCUR TO DOWNLOAD, INSTALL AND/OR USE THE APP, THE WEBSITE OR THE APP OR WEBSITE SERVICES ON YOUR MOBILE DEVICE, INCLUDING FOR YOUR RECEIPT OF PUSH MESSAGES FROM QVMD.
- App Updates. QVMD may make available for download certain updates or upgrades to the App to update, enhance or further develop the App (“App Updates”). The license granted herein allows you to download and use the App Updates pursuant to the same terms and conditions applicable to your use of the App.
- User Content. The App will allow you to complete surveys and share other information about yourself and your health. These surveys and conversations within the app and the information you provide are aimed at providing us with more context when reviewing the health information you provide through the App. You are responsible for ensuring that the data you transmit, submit and/or upload through the Services is complete and accurate. If you elect not to provide such information, you may not be able to access certain content or participate in certain features of the App or any features at all. The information you share through the App will be included in your User Account and will be accessible by Practice healthcare providers. You hereby grant to QVMD a nonexclusive, royalty-free, worldwide, transferable, sublicenseable license to access, use, reproduce, transmit, display, publish, distribute, modify and adapt and create derivative work of any information, data or content that you upload, submit or transmit to be made available through the Services (“Your Content”) (a) during the term of these Terms of Service to provide the Services to you and (b) on a perpetual basis in anonymized or aggregated form for any lawful purpose. By submitting Your Content through the Services, you represent and warrant (a) that you own or otherwise control all of the rights to Your Content; (b) that Your Content is accurate; and (c) that use of Your Content does not violate these Terms of Service and will not cause injury to any person or entity. .
- Third Party Services and Materials. The App and Website Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the App and Website Services, you acknowledge and agree that QVMD is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. QVMD does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you.
- No Endorsements. QVMD does not recommend or endorse any specific drugs, tests, physicians, products, procedures, and opinions. You should not construe QVMD’s publication of any content, data or information on the App and Website Services as an endorsement by QVMD of the views expressed herein, or any warranty or guarantee of any strategy, recommendation, treatment, action or application of medication or preparation made by the author of the content.
- Ownership. The App and Website and their content, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under intellectual property, copyright, trademark and other laws. You acknowledge and agree that QVMD and/or its licensors own all right, title and interest in and to the App, Website and App and Website Services (including without limitation any and all patent, copyright, trade secret, trademark, show-how, know-how and any and all other intellectual property rights therein or related thereto) and you agree not to take any action(s) inconsistent with such ownership interests. You do not acquire any rights or licenses under any of QVMD’s (or its licensors’) patents, patent applications, copyrights, trade secrets, trademarks or other intellectual property rights on account of these Terms of Service. You acknowledge and agree that the features and functionality of the App and Website, and all software, content, data, information and materials contained therein are the confidential and proprietary information of QVMD (or its licensors), and accordingly you agree to (a) maintain the confidentiality of such information using reasonable efforts and care (but in no event less than the same efforts and care you use to protect your own confidential and proprietary information) and not disclose such information to any third party without the prior written consent of QVMD, and (b) only use such information for the purposes of using the Services provided by QVMD hereunder.
- Disclaimer of Warranties & Limitation of Liability
- YOU ARE SOLELY AND FULLY RESPONSIBLE FOR YOUR USE OF THE SERVICES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY MATERIALS, THIRD PARTY SOFTWARE OR SERVICES) ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND QVMD, ITS AFFILIATES AND THEIR RESPECTIVE OWNERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS (COLLECTIVELY, THE “RELEASED PARTIES”) HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES (INCLUDING THE USE, PERFORMANCE AND SUPPORT THEREOF), EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTERFERENCE WITH ENJOYMENT, COMPLETENESS, INTEGRATION, FREEDOM FROM DEFECTS OR DISABLING DEVICES, UNINTERRUPTED USE AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. QVMD DOES NOT WARRANT THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE, (III) THAT THE SERVICES WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM OR DEVICE, OR (IV) DEFECTS IN THE SERVICES WILL BE CORRECTED. ANY ORAL OR WRITTEN ADVICE PROVIDED BY QVMD OR ITS AUTHORIZED AGENTS WILL NOT BE DEEMED TO CREATE ANY WARRANTY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY QVMD OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
- TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL QVMD OR THE RELEASED PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OF SERVICE OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS OF SERVICE AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF QVMD OR ANY RELEASED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SOME JURISDICTIONS (SUCH AS THE STATE of NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. QVMD AND THE RELEASED PARTIES’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE AMOUNT YOU PAID TO QVMD, OR ANY OF ITS AFFILIATES, IN THE PAST SIX (6) MONTHS FOR THE PRACTICE SERVICES GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL QVMD OR THE RELEASED PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SERVICES.
- You agree that the above limitations of liability together with the other provisions in these Terms of Service that limit liability are essential terms of these Terms of Service and that QVMD would not be willing to grant you the rights set forth in these Terms of Service but for your agreement to the above limitations of liability; you are agreeing to these limitations of liability to induce QVMD to grant you the rights set forth in these Terms of Service.
- By entering into these Terms of Service and using the Services, you agree that you shall defend, indemnify and hold QVMD and the Released Parties harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) your violation or breach of any term of these Terms of Service or any applicable law or regulation; (b) your violation of any rights of any third party; (c) any unauthorized use of the Services; or (d) your negligence or willful misconduct.
- trademark QVMD’s name, trademarks, logo and all related names, logos, product and service names, designs and slogans are trademarks of QVMD or its affiliates or licensors. Other names, logos, product and service names, designs and slogans that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
- FEEDBACK. Any and all suggestions for correction, change and modification to the Services and other feedback (including but not limited to quotations of written or oral feedback), information and reports provided to QVMD by you (collectively, “Feedback”) are and will remain the property of QVMD and QVMD may use and disclose such Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to QVMD any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback.
- Term and Termination
- Term. Your participation as a patient in the Practice and use of the Services pursuant to these Terms of Service shall automatically renew each month, beginning on the first day of the month after the Effective Date.
- Termination by Practice. Practice may terminate your participation as a patient in the Practice upon providing you advance written notice. Such termination shall be effective on the last day of then-current calendar month; provided however, that if you breach any of the terms of these Terms of Service, such termination will be effective automatically. Upon termination, Practice shall cooperate in the transfer of your medical records to another primary care provider, upon your written request and direction.
- Termination by You. You may terminate your participation in the Practice at any time and for any reason, by emailing email@example.com . You may also opt not out of auto-renewal of the Practice Services at any time, for any reason, through the Website or by emailing firstname.lastname@example.org . Such termination or non-renewal shall be effective on the last day of the then-current calendar month. Practice Fees shall not be pro-rated for any month. Monthly Practice Fees will continue to accrue until your written notice of termination is received by Practice at our office location set forth above or non-renewal is processed online, as applicable.
- Effect of Termination. Upon termination or expiration of these Terms of Service, we shall maintain your medical information for the requisite period of time in accordance with applicable laws and regulations; provided, however, we shall not be obligated to maintain Your Content that is not medical information after the termination or expiration of these Terms of Service. Thereafter, we may, without notice to you, delete all such data or content in our systems or otherwise in our possession or under our control, except for any such data or content which we are obligated to maintain in accordance with applicable laws and regulations. Sections IV, VI.4, VI.6, VII, VIII, IX, X, XI, and XII will survive any termination of these Terms of Service, together with any payment obligations owed by you for any Services received prior to the effective date of termination.
- ARBITRATION AND CLASS ACTION WAIVER
This Section includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a Class Action (as defined below) or other representative proceeding). Please read it carefully. You may opt out of the arbitration agreement by following the opt out procedure described below.
- Informal Process First. You agree that in the event of any dispute between you and QVMD, you will first contact QVMD and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.
- Arbitration Agreement. After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of QVMD’s services and/or products, including the Services, or relating in any way to the communications between you and QVMD or any other user of the Services, will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to you and QVMD. However, this arbitration agreement does not (a) govern any Claim by QVMD for infringement of its intellectual property or access to the Services that is unauthorized or exceeds authorization granted in this Terms of Service or (b) bar you from making use of applicable small claims court procedures in appropriate cases.
Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration. Instead, the dispute is resolve by a neutral arbitrator. Court review of an arbitration award is limited. Except to the extent the parties agree otherwise, arbitrators can award the same damages and relief that a court can award. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and QVMD are each waiving the right to a trial by jury or to participate in a Class Action.
If you wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, you must send a letter requesting arbitration and describing your claim to Decoded Health, Inc., 1935 Addison St., Suite A, Berkeley, CA 94704. The arbitration will be administered by the Judicial Arbitration and Mediation Services (or its successor, “JAMS”) under its rules.
The number of arbitrators will be one. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The arbitration will be conducted in the English language. California law will apply. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Payment of all filing, administration and arbitrator fees will be governed by the JAMS rules. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require QVMD to pay a greater portion or all of such fees and costs in order for this Section XI to be enforceable, then QVMD will have the right to elect to pay the fees and costs and proceed to arbitration, or to decline to do so and have the matter resolved through the courts.
The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence will not apply to the “Class Action Waiver” section below.
If you do not want to arbitrate disputes with QVMD and you are an individual, you may opt out of this arbitration agreement by sending an email to email@example.com within thirty (30) days of the date you first access or use the Services.
Class Action Waiver
Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
If this Class Action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, will be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If for any reason a claim proceeds in court rather than in arbitration, you and QVMD each waive any right to a jury trial.
- GENERAL PROVISIONS
- Modifications. We may modify these Terms of Service at any time. Modifications become effective immediately upon your first access to or use of the Services after the “Last Updated” date at the top of these Terms of Service. If we make changes that are material, we may use reasonable efforts to attempt to notify you, including by email or placing a prominent notice on the Website. However, it is your sole responsibility to review the Terms of Service from time to time to view any such changes. Your continued access or use of the Services after the modifications have become effective will be deemed your conclusive acceptance of the modified Terms of Service. If you do not agree with the modifications to the Terms of Service, then please do not access or use the Services.
- California Residents. If you are a California resident, in accordance with California Civil Code Section 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 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
- Injunctive Relief. You agree that a breach of these Terms of Service will cause irreparable injury to QVMD for which monetary damages would not be an adequate remedy and QVMD shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
- iOS App users. The following terms and conditions apply to you only if you are using the App from the Apple App Store. You, as an end-user of the App, acknowledge that this Terms of Service is entered into by and between QVMD and you and not with Apple, Inc., and Apple, Inc. is not responsible for the App and/or its content. Notwithstanding the foregoing, you acknowledge that Apple, Inc. and its subsidiaries are third-party beneficiaries of this Terms of Service and that Apple, Inc. has the right (and is deemed to have accepted the right) to enforce this Terms of Service. You acknowledge that Apple, Inc. has no obligation whatsoever to maintain or support the App. You acknowledge that you have reviewed the App Store Terms and Conditions (located online at http://www.apple.com/legal/itunes/us/terms.html#APPS). This Terms of Service incorporates by reference the Licensed Application End User License Agreement (the “LAEULA”) published by Apple, Inc. (located online at https://www.apple.com/legal/internet-services/itunes/dev/stdeula/). For purposes of this Terms of Service, the App is considered the “Licensed Application” as defined in the LAEULA and QVMD is considered the “Application Provider” as defined in the LAEULA. If any terms of this Terms of Service conflict with the terms of the LAEULA, the terms of this Terms of Service shall control. You further acknowledge and agree that in no event will Apple, Inc. be responsible for any claims relating to the App (including, without limitation, a third party claim that the App infringes that third party’s intellectual property rights) or your use or possession of the App, including but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You acknowledge and agree that, to the maximum extent permitted by applicable law, Apple, Inc. will have no warranty obligation whatsoever with respect to the App.
- Miscellaneous. These Terms of Service will inure to the benefit of and will be binding upon each party’s successors and assigns. These Terms of Service and the licenses granted hereunder may be assigned by QVMD but may not be assigned by you without the prior express written consent of QVMD. If any provision hereof is or becomes, at any time or for any reason, unenforceable or invalid, no other provision hereof will be affected thereby and the remaining provisions will continue with the same effect as if such unenforceable or invalid provisions will not have been inserted herein; provided that the ability of either party to obtain substantially the bargained-for performance of the other will not have thereby been impaired. It is expressly understood that in the event either party on any occasion fails to perform any term hereof and the other party does not enforce that term, the failure to enforce on any occasion will not constitute a waiver of any term and will not prevent enforcement on any other occasion. Nothing contained in these Terms of Service will be deemed to constitute either party as the agent or representative of the other party or both parties as joint venturers or partners for any purpose. The headings and captions contained herein will not be considered to be part of the Terms of Service but are for convenience only. You and QVMD agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms of Service. The JAMS Rules and the laws of the State of California, excluding its conflicts of law rules, govern these Terms of Service and your use of the Services.
- Contact Us. You may contact us regarding the Services or these Terms of Service by mail at Decoded Health, Inc., 1935 Addison St., Suite A, Berkeley, CA 94704 or by email at firstname.lastname@example.org. These Terms of Service sets forth the entire understanding of the parties with respect to the matters contained herein and there are no promises, covenants or undertakings other than those expressly set forth herein.