Last Modified on August 30, 2019
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
Welcome to OOTify and the www.OOTify.com website (the “Site”). The Site is a social enhancement website through which clinical professionals, coaches and mentors (collectively, “Providers”) and end users seeking mental health and wellness advice (collectively, “End Users”) may connect through the OOTify communications platform (the “Platform”). Your access and use of the Site, the mobile application (the “App”), the Platform and features, products and services provided by OOTify, Inc. (“OOTify,” “we,” “us,” or “our”) through the Site, the App or the Platform, but excluding any software, product or services provided by OOTify under a separate written agreement, (individually and collectively, the “Service”) is subject to the terms and conditions in this Terms of Service (this “ToS”).
DO NOT USE THE SERVICE FOR EMERGENCY MEDICAL NEEDS. IF YOU ARE IN CRISIS OR EXPERIENCING A MEDICAL EMERGENCY, IMMEDIATELY CALL A HEALTH CARE PROFESSIONAL OR 911. YOUR USE OF THE SERVICE IS SOLELY AT YOUR OWN RISK.
IF YOU ARE CONSIDERING SUICIDE OR FEEL THAT YOU ARE A DANGER TO YOURSELF OR TO OTHERS, YOU MUST DISCONTINUE USE OF THE SERVICE IMMEDIATELY, CALL 911 OR NOTIFY APPROPRIATE POLICE OR EMERGENCY MEDICAL PERSONNEL.
IF YOU HAVE EXPERIENCED OR HAVE KNOWLEDGE OF CHILD, DEPENDENT ADULT OR ELDER ABUSE, PLEASE CONTACT YOUR LOCAL PROTECTIVE SERVICES AGENCY.
You must agree to this ToS in order to use the Service. If you use the Service, we will understand this as your acceptance of this ToS and your agreement to all of its terms and conditions. By accepting this ToS or using the Service, you represent and warrant that you have the legal capacity to enter a contract in the jurisdiction where you reside. If you do not accept this ToS, then you may not use the Service.
OOTIFY IS NOT A HEALTHCARE PROVIDER, AND THE SERVICE DOES NOT INCLUDE THE PROVISION OF MEDICAL CARE, MENTAL HEALTH CARE, OR OTHER PROFESSIONAL SERVICES.
We make the Site available as a service to you for the purpose of providing informational and educational resources. You acknowledge that although Content (defined below) may be provided by Providers through accessing the Service, the provision of such Content does not create a medical professional and patient relationship. If providing such Content is ever deemed to be the provision of health care services, such Content does not constitute a medical opinion or advice, or diagnosis or treatment. OOTify recommends that you seek the advice of a physician or other qualified healthcare provider regarding your personal health or medical conditions. If any health or medical advice is provided to you by a Provider through the Service, such advice is not provided, sponsored, recommended or approved by OOTify and does not constitute a medical opinion or advice, or diagnosis or treatment. “Content” means content, text, data, graphics, images, photographs, video, audio, information, suggestions, guidance, and other materials provided, made available or otherwise found through the Service, including without limitation any Content provided in response to your questions or postings.
WHILE THE PLATFORM ENABLES END USERS AND PROVIDERS TO COMMUNICATE WITH ONE ANOTHER, WE ARE NOT RESPONSIBLE FOR MONITORING SUCH INFORMATION AND COMMUNICATIONS, BUT RESERVE THE RIGHT TO DO SO, AND WE ARE NOT A PARTY TO TRANSACTIONS THAT MAY OCCUR BETWEEN END USERS AND PROVIDERS EXCEPT AS PROVIDED IN THIS TOS. BY USING THE SERVICE, YOU KNOWLEDGE AND AGREE THAT WE ARE NOT RESPONSIBLE FOR, AND WE EXPRESSLY DISCLAIM, ALL LIABILITY THAT MAY RESULT FROM INFORMATION MADE AVAILABLE BY END USERS OR PROVIDERS AND THE CONDUCT OF END USERS AND PROVIDERS, WHETHER ONLINE OR OFFLINE. OOTIFY DOES NOT SPONSOR, ENDORSE OR RECOMMEND ANY PROVIDER, NOR DO WE MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE QUALITY, TIMING OR LEGALITY OF THE PRODUCTS OR SERVICES THEY PROVIDE. ADDITIONALLY, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT ANY PROVIDER IS LICENSED, QUALIFIED, INSURED OR CAPABLE OF PERFORMING ANY PRODUCT OR SERVICE, AND WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY OR ACCURACY OF ANY OF THE PRODUCTS, SERVICES OR CONTENT. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON ANY SUCH PRODUCTS, SERVICES OR CONTENT. FURTHERMORE, WE DO NOT IN ANY WAY ENDORSE OR RECOMMEND ANY INDIVIDUAL LISTED OR ACCESSIBLE THROUGH THE SERVICES.
1. Our Services.
a. Additional Terms Applicable to Providers. If you are a Provider using the Service, you agree to comply with the terms and conditions applicable to Providers in this ToS with respect to your use of the Service, including, without limitation, the following terms of this Section 1(a):
i. Qualifications. You represent, warrant and covenant that, at the time of registration and on an ongoing basis, you (A) satisfy all professional licensing requirements applicable to the professional services you are providing through the Platform, (B) hold all valid and current licenses required to provide such services, (C) are in good standing with each licensure board or other authority issuing such licenses or otherwise having regulatory authority over you, (D) have not received any notice of cancellation, probation, suspension, revocation or non-renewal of any licenses required to provide such services and (E) will not provide any healthcare services to any End User residing in a state in which you are not licensed. If and for so long as you fail to satisfy the provisions of this paragraph, you will cease all use of the Service. You will, at our request, cooperate with us in confirming your professional credentials and compliance with the foregoing representations and warranties. You agree to comply with, and to work directly with End Users to comply with, the licensing requirements and professional standards applicable to you and applicable state and federal laws, including but not limited to, telehealth laws and laws governing the services you provide to End Users in the state in which you reside.
ii. Responsibilities. When you choose to engage with an End User, we are not responsible for monitoring such information and communications, and we are not a party to any of the transactions that may occur between you and the End User except as provided in Section 5 below or to any agreements that may be entered into between you and the End User. You shall be solely responsible for the services you provide, for any documents you may require from the End User and for any and all injuries, illnesses, damages, costs, expenses, liabilities, or otherwise suffered or incurred by you in connection with the fulfillment of or failure to perform such services. You agree that you are under no obligation to engage with any End User. Any decision to engage with an End User shall be made by you in your sole and absolute discretion. You are responsible for setting, billing and collecting fees, if any, from any End Users.
iii. Disclaimer of Warranties. You understand and agree that your engagement with an End User is at your sole risk and that OOTify makes no warranty as to the accuracy, completeness or reliability of any materials, information or data available through or the performance of, the Service including, but not limited to, (A) information and identities of End Users, (B) results of the services that you provide to End Users and other uses of the Service or (C) the suitability of the End Users that you may engage with for the services you provide.
iv. Business Associate Agreement. To the extent you are a "covered entity" or "business associate" as such terms are defined under the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act and the regulations promulgated thereunder (collectively, "HIPAA"), and OOTify is creating, receiving, maintaining or treansmitting "protected health information" on your behalf as a "business associate" for purposes of HIPAA, you acknowledge and agree to the terms of the Business Associate Addendum (the "BAA"), incorporated herein by reference. In the event of any conflict or inconsistency between the BAA and this ToS, the BAA shall govern.
b. Additional Terms Applicable to End Users. If you are an End User using the Service, you agree to comply with the terms and conditions applicable to End Users in this ToS with respect to your use of the Service, including, without limitation, the following terms of this Section 1(b):
i. Providers may or may not have been previously screened or approved by OOTify. When you choose to engage with a Provider, we are not responsible for monitoring such information and communications, and we are not a party to transactions that may occur between you and the Provider except as otherwise provided in Section 5 below. Providers are solely responsible for the services they provide and for any and all injuries, illnesses, damages, costs, expenses, liabilities, or otherwise suffered or incurred by you in connection with their performance of or failure to perform their services. The parties agree that you are under no obligation to engage with a Provider. Any decisions to engage with a Provider shall be made by you in your sole and absolute discretion.
ii. OOTify does not endorse and is not responsible or liable for any Content or services available from, or through, a Provider. You agree that should you use or rely on such Content or services, available from or through a Provider, OOTify is not responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection with such use or reliance. Your dealings with or engagement with a Provider, and any other terms, conditions, representations or warranties associated with such dealings, are between you and such Provider exclusively and do not involve OOTify except as provided herein. You should make whatever investigation or consult other resources that you deem necessary or appropriate before engaging with Providers.
iii. You understand and agree that your engagement of a Provider is at your sole risk and that OOTify makes no warranty as to the accuracy, completeness, quality or reliability of any materials, information or data available through the Service including, but not limited to, (A) information about Providers, identities of Providers, recommendations, connections and references and (B) the suitability or results of the services provided by Providers and other uses of the Service.
iv. You agree that OOTify is not responsible for the accessibility or unavailability of a Provider or for your interactions and dealings with them, waive the right to bring or assert any claim against OOTify relating to any interactions or dealings with Providers, and release OOTify from any and all liability arising from or relating to any interactions or dealings with Providers.
2. ToS Updates. OOTify may update this ToS at any time, and OOTify will post the updated version of this ToS on the Site and the App. You understand and agree that you will be deemed to have accepted the updated ToS if you use the Service after the updated ToS is posted. If at any point you do not agree to any portion of this ToS then in effect, you must immediately stop using the Service.
3. Provision of the Service. You are responsible for any Internet connection and telecommunications fees and charges that you incur when accessing the Service. You acknowledge and agree that OOTify may make changes to the Service at any time without notifying you in advance.
4. Termination of Service. OOTify reserves the right to deny service to any person or entity at OOTify’s sole and absolute discretion. You acknowledge and agree that OOTify may stop providing the Service or restrict your use of the Service at any time, without notifying you in advance, for any reason or no reason, including, without limitation, for any violation of this ToS or if OOTify suspects that you have used any aspect of the Service to conduct any fraudulent or illegal activity. If OOTify disables your access to your account, you may be prevented from accessing the Service, your account details or any materials contained in your account.
5. Accounts and Security.
b. Fees. You agree to pay all applicable fees and taxes incurred by you or anyone using your account. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. OOTify may, from time to time, modify, amend, or supplement its pricing and billing procedures, and such changes shall be effective immediately upon posting a link to an update of this ToS or posting such changes elsewhere on the Site or the App. If there is a dispute regarding your payment of fees, or the Service, you may contact OOTify at firstname.lastname@example.org. If you fail to pay any fees when due, OOTify shall have the right to terminate your account without prior notice.
i. Provider Fees. If you are a Provider, you may access and use the Service only after a you have paid for a subscription to the Service (“Paid Subscription”). Paid Subscriptions can be purchased by paying a monthly subscription fee (“Subscription Fee”). If you purchase a Paid Subscription, you agree and acknowledge that your subscription has an initial and recurring payment charge at the then-current subscription rate, and you accept responsibility for all recurring charges prior to cancellation, including where applicable any charges processed by OOTify after the expiration date of your payment card.
ii. End User Fees. In the event you engage a Provider for the provision of mental health or wellness services, in consideration for such engagement of the Provider, you shall pay to OOTify a fee equal to seven percent (7%) of the Transaction Fee (the “Booking Fee”). For the purposes hereof, the “Transaction Fee” means the gross amount of the fee agreed upon between you and the Provider in exchange for the services provided by the Provider through the Platform. By way of example, if the Transaction Fee equals $100.00, then you shall pay to OOTify a Booking Fee of $7.00 in addition to the Transaction Fee you pay to the Provider.
c. Payment of Fees. OOTify shall not be responsible for the payment of any fees or expenses incurred by Providers or End Users through the Service or for any disputes that may arise between Providers and End Users. You shall be responsible for payment of any and all taxes, duties, governmental charges and other charges levied on the Booking Fee or the Subscription Fee (except taxes based upon OOTify’s income) and you shall indemnify, defend and hold OOTify harmless from and against all claims arising out of or relating to any such charges assessed against OOTify.
YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES ARE NON-REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
d. Account Security. Maintaining account security is very important. You are solely responsible for maintaining the confidentiality of your account password. You agree to notify OOTify immediately if you become aware of any unauthorized use of your password or of your account.
e. Account Sharing or Transfers. Accounts are registered to you personally and may not be sold, traded, gifted or otherwise transferred at any time under any circumstances. You may not share your account with, or disclose your password to, anyone else.
f. Cancellation by Providers. If you are a Provider, you have the right to cancel your subscription or your account at any time. You may cancel either your subscription or your account by following the cancellation instructions in the Site or by contacting us via email at email@example.com. If you cancel a subscription, you may use your subscription until the end of your then-current subscription term. Once you cancel your account, your personal information will no longer be viewable by other users. However, content previously shared with other users may remain viewable by those users until they delete such content.
g. Cancellation by End Users. If you are an End User, you may cancel your account or submit a dispute relating to your account by contacting us via email at firstname.lastname@example.org. Content that you have previously shared with other users may remain viewable by those users until they delete such content.
h. Termination by OOTify. OOTify may at any time terminate your account if:
i. OOTify determines that you are (i) in breach of or otherwise acting inconsistently with this ToS or (ii) engaging in fraudulent or illegal activities or other conduct that may result in liability to OOTify;
ii. OOTify determines it is required by law to terminate your account; or
iii. OOTify decides to stop providing the Service or critical portions of the Service.
i. Effect of Account Termination or Cancellation. If you voluntarily terminate your account or allow your account to lapse, or your account is terminated by OOTify for any type of abuse including, without limitation, a violation of this ToS, your account will be permanently deleted and cannot be reactivated.
6. Use Requirements.
a. License Grant. Subject to the terms and conditions of this ToS, OOTify hereby grants you a limited, non-exclusive, personal, non-sublicensable, non-assignable license to use the Service, which may only be used in accordance with this ToS and any rules, restrictions and/or documentation set forth by OOTify from time to time.
b. Installation. In connection with the Service, you may install the App on one or more mobile devices that you own or control and that meet the minimum specifications provided by OOTify.
c. Updates. OOTify may require that you download and install updates to the App from time to time. You acknowledge and agree that OOTify may update the Service with or without notifying you and add or remove features or functions to the Service at any time in its sole discretion. You acknowledge and agree that OOTify has no obligation to make the Service available to you, make any subsequent versions of the Service available to you or to continue to support the Service in any way. You acknowledge that your access to the Service may not be continuous, features may change during your use of the Service, and OOTify may terminate your access to the Service or stop offering the Service at any time.
7. Restrictions and Conditions of Use.
a. Use of the Service. OOTify permits you to view and use the Service solely for your personal, non-commercial use. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, materials, data or services obtained from the Service. OOTify reserves the right to add or remove information, content or services from the Services at any time at its sole discretion.
b. Accessing the Service. You agree not to access, or attempt to access, the Service by any means other than through the user interface provided through the Site, the App or the Platform. You specifically agree not to access, or attempt to access, the Service through any automated means (including, without limitation, through the use of scripts, bots, spiders or web crawlers).
c. No Violation of Laws. You agree that you will not, in connection with your use of the Service, violate any applicable law, ordinance, rule, regulation or treaty. Without limiting the foregoing, you agree that you will not make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
d. Use Restrictions. You may not connect to or use the Service in any way that is not expressly permitted by this ToS.
i. You may not: (i) remove any proprietary notices from the Service; (ii) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Service; (iii) sell, assign, rent, lease, act as a service bureau, or grant rights in the Service, including, without limitation, through sublicense, to any other person or entity without the prior written consent of OOTify; or (iv) make any false, misleading or deceptive statement or representation regarding OOTify and/or the Service.
ii. Without limiting the foregoing, you agree that you will not: (i) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the Service (or any servers, systems or networks connected to the Service) or otherwise attempt to obstruct, disrupt or interfere with the operation of the Service or any other person’s or entity’s use of the Service (or any servers, systems or networks connected to the Service); (ii) attempt to gain unauthorized access to the Service, accounts registered to other users, or any servers, systems or networks connected to the Service; (iii) use the Service for any commercial purpose unless consistent with this ToS and the intended use of the same, or for the benefit of any third party, or charge any person or entity, or receive any compensation for, the use of the Service, unless you are specifically authorized to do so in a separate written agreement with OOTify; (iv) use the Service to develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene or hateful; (iv) use the Service to perform any unsolicited commercial communication not permitted by applicable law; or (v) use the Service to engage in any activity that (A) constitutes harassment or a violation of privacy or threatens other people or groups of people; (B) is harmful to children in any manner; (C) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (D) violates any applicable law, ordinance, rule, regulation or treaty.
iii. Without limiting the foregoing, you agree that you will not use the Service for any other unlawful, prohibited, abnormal or unusual activity as determined by OOTify in its sole discretion.
e. No Data Mining or Harmful Code. You agree that you will not (a) obtain or attempt to obtain any information from the Service including, without limitation, email addresses or mobile phone numbers of other account holders or other data; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Service, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse routine, trap door, time bomb or any other codes, instructions or third party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, any aspect of the Service.
f. Violation of this ToS. You acknowledge and agree that you are solely responsible, and OOTify has no responsibility or liability to you or any other person or entity, for any breach by you of this ToS or for the consequences of any such breach. OOTify may at its option, terminate its relationship with you, or may suspend your account immediately if it determines you are using the Service contrary to the restrictions found in this Section 7 or any other terms of this ToS.
a. Links from the Site. The Site may contain links to websites operated by other parties. OOTify provides these links to other websites as a convenience and use of these websites is at your own risk. The linked websites are not under the control of OOTify and OOTify is not responsible for the content available on the other websites. Such links do not imply OOTify’s sponsorship, recommendation, approval or endorsement of information or material on any other website and OOTify disclaims all liability with regard to your access to and use of such linked websites.
b. Links to the Site. Unless otherwise set forth in a written agreement between you and OOTify, you must adhere to OOTify’s linking policy as follows: (a) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with OOTify’s or its licensors’ names and trademarks; (b) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with OOTify; and (c) when selected by a user, the link to the Site must display the Site on full-screen and not within a “frame” on the linking Site. OOTify reserves the right to revoke its consent to the link at any time and in its sole discretion.
9. Intellectual Property.
a. Trademarks. The OOTify name and logo, Social Enhancement™ and Accept, Communicate and Enhance™ are trademarks and service marks of OOTify. Unless permitted in a separate written agreement with OOTify, you do not have the right to use any of OOTify’s trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws.
b. Ownership. You acknowledge and agree that OOTify, or its licensors, owns all right, title and interest in and to the Service, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the Service is protected by U.S. and international copyright laws. Further, you acknowledge that the Service may contain information that OOTify has designated as confidential and you agree not to disclose such information without OOTify’s prior written consent.
c. Copyright Agent. OOTify respects the intellectual property rights of others, and requires that people who use the Service do the same. OOTify maintains a policy of terminating users of the Service who engage in repeated infringing conduct. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below:
• Your address, telephone number, and email address;
• A description of the copyrighted work that you claim has been infringed;
• A description of where the alleged infringing material is located;
• A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;
• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
• 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.
12130 Millennium Drive. 3rd Floor
Los Angeles, CA 90094
11. Location. The Service is operated by OOTify in the United States. If you choose to access the Service from a location outside of the United States, you do so on your own initiative and you are responsible for compliance with applicable local laws.
12. User Generated Content.
a. Content of Communications. OOTify is not the source of, does not verify or endorse and takes no responsibility for the content of communications made by Providers, End Users or other users using the Service and posting on our online forum, “The Fabric”, on the Site. By using the Service, you agree that any content that you submit may be viewable by other users of the Service. The content of communications is entirely the responsibility of the person from whom such content originated. You therefore may be exposed to content that is offensive, unlawful, harmful to minors, obscene, indecent or otherwise objectionable. You acknowledge and agree that OOTify is not responsible for any content of communications that you may have access to through your use of the Service. The content of communications may be protected by intellectual property rights, which are owned by third parties. You are responsible for the content you choose to communicate and access using the Service. In particular, you are responsible for ensuring that you do not submit material that is (a) copyrighted, protected by trade secret rights or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner; (b) a falsehood or misrepresentation; (c) offensive, unlawful, harmful to minors, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or that encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise objectionable; (d) an advertisement or solicitation of business; or (e) impersonating another person. OOTify may in its sole discretion monitor, block, prevent delivery of or otherwise remove the content of communications as part of its effort to protect the Service or its customers, or otherwise enforce this ToS. Further, OOTify may in its sole discretion remove such content or terminate this ToS and your access if you use any content that is in breach of this ToS.
b. OOTify does not claim ownership of any communications or materials you submit or make available through the Service (“Submitted Content”) via any file-sharing or any other function through the Service which allows you to upload or share content. With respect to such Submitted Content, you grant OOTify a perpetual, irrevocable, non-terminable, transferrable, worldwide, royalty-free, sublicensable, fully paid-up, non-exclusive and transferable license to use, reproduce, distribute, prepare derivative works of, display, modify, copy and perform Submitted Content or any part of Submitted Content in connection with the Service and OOTify’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any and all media formats and through any and all media channels now known or hereafter adopted. You also hereby grant each user of the Service a non-exclusive license to access your Submitted Content through the Service while the Submitted Content is made available through the Service. You may take down any of your Submitted Content at any time; however, you acknowledge and agree, that OOTify may still have access to such Submitted Content and that the above licenses granted by you to OOTify will remain in effect despite your removal of such Submitted Content from the Service. You hereby represent, warrant and covenant that any Submitted Content you provide does not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant the license specified in this Section 12(b).
c. You acknowledge and agree that: (a) by using the Service, you may be exposed to content that you may find offensive or indecent and you do so at your own risk; and (b) you are solely responsible for, and OOTify has no responsibility to you or any third party for any Submitted Content that you create, submit, post or publish through the Service. You acknowledge and agree that (i) OOTify has no control over and is not responsible for the use of Submitted Content by a user, including any user that has uploaded such Submitted Content to such user’s personal device; and (ii) OOTify may not be able to remove certain Submitted Content that is uploaded onto another user’s device. OOTify does not endorse any Submitted Content or any opinion, recommendation, or advice expressed therein, and expressly disclaims any and all liability in connection with Submitted Content.
d. You acknowledge that OOTify has the right to pre-screen Submitted Content, but no obligation to do so. At OOTify’s sole discretion, any Submitted Content may be included in the Service in whole or in part in a modified form. In addition, OOTify and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Submitted Content that is available via the Service that violates this TOS or is otherwise objectionable including, but not limited to, being unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or violating any party’s intellectual property rights.
e. You acknowledge that the Submitted Content is your sole responsibility. You are entirely responsible for the Submitted Content and agree, under no circumstances, will OOTify be liable in any way for Submitted Content including, but not limited to, any errors or omissions in any Submitted Content, or any loss or damage of any kind incurred as a result of the use or distribution of any Submitted Content transmitted or otherwise made available via the Service.
13. Children. You must be at least 18 years of age to access the Service. You represent that you are the age of 18 or over and have the legal capacity to enter a contract in the jurisdictions where you reside. Minors under 18 years of age but who are at least 13 years of age are only permitted to access and/or use the Services if (i) the minor's parent or guardian accepts to these ToS on the minor's behalf prior to any access or use of the Service; and (ii) the minor's parent or guardian supervises the minor's access and/or use of the Service. Children under the age of 13 are not permitted to access or use the Service. By using the Service, you represent and warrant that you meet all of these requirements.
14. DISCLAIMER OF WARRANTIES.
a. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OOTIFY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
c. OOTIFY MAKES NO REPRESENTATION OR WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA AVAILABLE THROUGH, OR THE PERFORMANCE OR FAILURE PERFORMANCE OF, THE SERVICE.
d. OOTIFY DOES NOT REPRESENT OR WARRANT THAT (a) YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (b) THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS; (d) DEFECTS IN THE OPERATION OF THE SERVICE WILL BE CORRECTED; OR (e) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
e. YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, MOBILE PHONE OR OTHER DEVICE OR ANY LOSS OF DATA RESULTING FROM DOWNLOADING OR OBTAINING SUCH MATERIAL.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
15. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY.
a. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OOTIFY AND ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) SHALL NOT BE LIABLE TO YOU UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR:
i. ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICE (INCLUDING, BUT NOT LIMITED TO, YOUR RELIANCE UPON REVIEWS AND OPINIONS APPEARING ON THIS SITE), EVEN IF OOTIFY OR THE RELATED PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES;
ii. THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY;
iii. THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY MATERIALS, INFORMATION OR DATA MAINTAINED BY OR THROUGH YOUR USE OF THE SERVICE; OR
iv. TERMINATION OF YOUR ACCOUNT OR ACCESS TO THE SERVICE.
b. THE PROVIDERS PROVIDING ANY PRODUCTS OR SERVICES ARE NOT AGENTS, REPRESENTATIVES OR EMPLOYEES OF OOTIFY. OOTIFY IS NOT LIABLE FOR ANY ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES, NEGLIGENCE OR MISCONDUCT OF ANY PROVIDERS OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES DIRECTLY OR INDIRECTLY CAUSED BY ANY PRODUCT OR SERVICE PROVIDED THROUGH THE SERVICE OR YOUR PURCHASE OR USE OF PRODUCT OR SERVICE PROVIDED BY A PROVIDER. OOTIFY HAS NO LIABILITY AND WILL MAKE NO REFUND OF ANY AMOUNTS PAID TO OOTIFY IN THE EVENT OF ANY DELAY, CANCELLATION, FORCE MAJEURE OR OTHER CAUSES BEYOND OUR DIRECT CONTROL, AND WE HAVE NO RESPONSIBILITY FOR ANY ADDITIONAL EXPENSE, OMISSIONS, DELAYS, RE-ROUTING OR ACTS OF ANY GOVERNMENT OR AUTHORITY.
c. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF OOTIFY OR ANY OF THE RELATED PARTIES EXCEED THE GREATER OF (a) THE AMOUNTS PAID TO OOTIFY CORRESPONDING TO THE PORTIONS OF THE SERVICE GIVING RISE TO THE CLAIM OR (b) ONE HUNDRED DOLLARS ($100).
Because some stated or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of OOTify and the Related Parties shall be limited to the fullest extent permitted by law.
16. Indemnification. You agree to defend, indemnify and hold OOTify and the Related Parties harmless from and against any and all claims, demands, liabilities damages and losses including, without limitation, reasonable attorneys’ fees, (“Losses”) resulting from or arising out of (a) your use of the Service; or (b) your breach of this ToS or any other policies that OOTify may issue for the Service from time to time. If you are a Provider, you additionally agree to defend, indemnify and hold OOTify and the Related Parties harmless from and against any and all Losses resulting from or arising out of the services you provide and for any and all injuries, illnesses, damages, costs, expenses, liabilities, or otherwise suffered or incurred by you in connection with the fulfillment of or failure to perform such services.
17. Governing Law; Jurisdiction. This ToS is governed by California law, without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and OOTify agree that, except as otherwise provided in Section 18 below, the state and federal courts located in the County of Los Angeles, California will have exclusive jurisdiction of all disputes arising out of or related to this ToS or your use of the Site, the App, the Platform or the Service and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing, OOTify shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
18. Binding Arbitration.
a. Arbitration Procedures. You and OOTify agree that, except as provided in Section 18(d) below, all disputes, controversies and claims related to this ToS (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this ToS. In the event of a conflict between the terms set forth in this Section 18 and the JAMS Rules, the terms in this Section 18 will control and prevail.
Except as otherwise set forth in Section 18(d), you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and OOTify will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToS, (a) you and OOTify may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
b. Location. The arbitration will take place in Los Angeles, California, unless the parties agree to video, phone or internet connection appearances.
c. Limitations. You and OOTify agree that any arbitration shall be limited to the Claim between OOTify and you individually. YOU AND OOTIFY AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
d. Exceptions to Arbitration. You and OOTify agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of OOTify’s intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
e. Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
f. Severability. You and OOTify agree that if any portion of this Section 18 is found illegal or unenforceable (except any portion of Section 18(d)), that portion shall be severed and the remainder of the section shall be given full force and effect. If Section 18(d) is found to be illegal or unenforceable then neither you nor OOTify will elect to arbitrate any Claim falling within that portion of Section 18(d) found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County of Los Angeles, California, and you and OOTify agree to submit to the personal jurisdiction of that court.
a. ToS Revisions. This ToS may only be revised in a writing signed by OOTify, or published by OOTify on the Site.
b. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and OOTify as a result of this ToS or your use of the Service.
c. Assignment. OOTify may assign its rights under this ToS to any person or entity without your consent. The rights granted to you under this ToS may not be assigned without OOTify’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
d. Severability. If any part of this ToS is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToS shall be given full force and effect.
e. Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with this ToS, except as otherwise provided in Section 18(e), the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
f. No Waiver. Our failure to enforce any provision of this ToS shall in no way be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by OOTify of any provision, condition or requirement of this ToS shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.
g. Notices. All notices given by you or required under this ToS shall be in writing and sent to legal@OOTify.com.
h. Equitable Remedies. You acknowledge and agree that OOTify would be irreparably damaged if this ToS were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToS, in addition to such other remedies as we may otherwise have available to us under applicable laws.
i. Entire Agreement. This ToS, including the documents referenced in this ToS, constitutes the entire agreement between you and OOTify with respect to the Service and supersedes any and all prior agreements between you and OOTify relating to the Service.
BUSINESS ASSOCIATE AGREEMENT
Last Modified on August 30, 2019
This Business Associate Agreement (this “BAA”) is a legal agreement entered into between you (“you,” “your”) and OOTify, Inc. (“OOTify” or “Business Associate”) and is the addendum to the OOTify Terms of Service (as defined below) by and between you and OOTify, for the purpose of implementing the requirements of the Health Insurance Portability and Accountability Act of 1996 , as amended by the Health Information Technology for Economic and Clinical Health ("HITECH") Act, and their implementing regulations (collectively, "HIPAA") to support the parties' complaince requirements under HIPAA. Together with the Terms of Service (as defined below), this BAA will govern each party's respective obligations regarding Protected Health Information (as defined below).
You represent and warrant that: (i) you have full legal authority to enter into this BAA, (ii) you have read and understand this BAA, and (iii) you agree to the terms of this BAA.
A. Catch-all definition: Unless otherwise expressly defined in this Addendum, all capitalized terms in this BAA will have the meanings set forth in the Terms of Service or HIPAA.
B. Specific definitions:
HIPAA Rules. "HIPAA Rules" shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.
Protected Health Information. "Protected Heakth Information" or "PHI" means any "protected health information" as defined in 45 C.F.R. § 160.103 that is created, received, maintained or transmitted by OOTify on behalf of you.
Privacy Rule. “Privacy Rule” shall mean the HIPAA Regulations that are codified at 45 C.F.R. Parts 160 and 164, Subparts A and E.
Security Rule. “Security Rule” shall mean the HIPAA Regulations that are codified at 45 C.F.R. Parts 160 and 164, Subparts A and C.
Terms of Service. “Terms of Service” shall mean the Terms of Service entered into between you and OOTify governing your access and use of OOTify’s website (the “Site”), mobile application (the “App”), the OOTify communications platform through which End Users (as defined in the Terms of Service) and Providers (as defined in the Terms of Service) may connect (the “Platform”), and features, products and services provided by OOTify through the Site, the App, or the Platform (collectively, the “Services”). The Terms of Service is amended by and incorporates the terms of this BAA.
2. Obligations and Activities of Business Associate
A. Use or Disclosure. Business Associate agrees not to use or disclose PHI except as permitted under the Terms of Service and this BAA. Further, Business Associate shall not use or disclose PHI in any manner that would constitute a violation of HIPAA, except as otherwise permitted under BAA.
B. Appropriate Safeguards. Business Associate agrees to use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic Protected Health Information ("ePHI"), to prevent use or disclosure of ePHI other than as provided for by this BAA.
C. Reporting of Improper Access, Use or Disclosure. Business Associate agrees to report to you, without unreasonable delay, and in no case later than ten (10) business days after discovery, any use or disclosure of PHI not provided for by this BAA of which Business Associate becomes aware, including breaches of unsecured PHI as required at 45 CFR 164.410, and any security incident of which Business Associate becomes aware.
D. Mitigation. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to you of a use or disclosure of PHI in violation of this BAA.
E. Business Associate’s Subcontractors and Agents. In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, Business Associate agrees to ensure that any subcontractors of Business Associate that create, receive, maintain, or transmit Protected Health Information on behalf of Business Associate agree to substantially the same restrictions, conditions, and requirements that apply to Business Associate with respect to such information.
F. Access to PHI. Business Associate agrees to make available PHI in a designated record set to you as necessary to satisfy your obligations under 45 CFR 164.524.
G. Amendment of PHI. You agree to make any amendment(s) to Protected Health Information in a designated record set as directed or agreed to by you pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy your obligations under 45 CFR 164.526.
H. Accounting Rights. Business Associate shall make available to you the information required to provide an accounting of disclosures in accordance with 45 CFR § 164.528 of which Business Associate is aware, if requested in writing by you.
I. Obligations. To the extent Business Associate is to carry out one or more of your obligation(s) under Subpart E of 45 CFR Part 164, Business Associate agrees to comply with the requirements of Subpart E that apply to you in the performance of such obligation(s).
J. Governmental Access to Records. Business Associate agrees to make its internal practices, books, and records available to the Secretary of the Department of Health and Human Services (“Secretary”) for purposes of determining compliance with the HIPAA. Nothing in this Section will be construed as a waiver of any legal privilege or of any protections for trade secrets or confidential commercial information.
3. Permitted Uses and Disclosures by Business Associate
A. Permitted Uses and Disclosures. Business Associate shall not use PHI except as permitted under the Terms of Service and this BAA, and as required by law. Further, Business Associate shall not use or disclose PHI in any manner that would constitute a violation of the Privacy Rule if so used by you, except as otherwise permitted under this BAA. Business Associate may, however, use and disclose PHI (i) for the proper management and administration of Business Associate or (ii) to carry out the legal responsibilities of Business Associate, provided that any disclosure of PHI will be made only if Business Associate obtains reasonable assurances from the recipient: (a) will hold such PHI confidentially and will use or disclose such PHI as required by law or for the purpose for which it was disclosed to a third party, and (y) will notify Business Associate of any breaches of confidentiality of the PHI, to the extent it has obtained knowledge of such breach.
B. De-Identified Data. Business Associate may create de-identified PHI in accordance with the standards set forth in 45 C.F.R. § 164.514(b) and may use de-identifies data for any purpose.
C. Data Aggregation. Except as otherwise limited by this BAA, Business Associate may use PHI to provide Data Aggregation services as permitted by 45 CFR § 164.504(e)(2)(i)(B), including use of PHI for statistical compilations, reports and all other purposes allowed under applicable law.
4. Your Obligations
A. You agree to:
1. Notify Business Associate of any limitation(s) in any applicable notice of privacy practices in accordance with 45 C.F.R. § 164.520, to the extent that such limitation may affect Business Associate's use or disclosure of PHI.
2. Obtain any consent or authorization that may be required by the Privacy Rule, or applicable state law, prior to the furnishing Business Associate with PHI. You shall Notify Business Associate of any changes in, or revocation of, permission by an individual to use or disclose PHI, to the extent that such changes may affect Business Associate's use or disclosure of PHI.
3. Notify Business Associate of any restriction to the use or disclosure of PHI that you have agreed to in accordance with 45 C.F.R. § 164.522, to the extent that such restriction may affect Business Associate's use or disclosure of PHI.
4. Not request Business Associate to use or disclose PHI in any manner that would not be permissible under the HIPAA Rules if done by you, except as otherwise permitted under this BAA and the HIPAA Rules.
5. Term and Termination
A. Term. The term of this BAA shall remain in full force and effect until terminated by either party upon thirty (30) days written notice, or when all of the PHI provided by you to Business Associate, or created, received or maintained by Business Associate in connection with the Services, is destroyed or returned to you, or, if it is infeasible to return or destroy the PHI, protections are extended to such information.
B. Termination for Cause. Upon either party's knowledge of a material breach by the other party of this BAA, such party shall provide written notice to the breaching party stating the nature of the breach and providing an opportunity to cure this breach within thirty (30) business days. Upon the expiration of such thirty (30) day cure period, the non-breaching party may terminate this BAA and, at its election, the Terms of Service, if cure is not possible.
C. Obligations of Business Associate Upon Termination. Upon termination of this BAA for any reason, Business Associate shall return or destroy PHI received from you, or created, maintained, or received by Business Associate in connection with the Services shall retain no copies of the PHI. If it is infeasible for the Business Associate to return or destroy the PHI upon termination of the Terms of Services or this BAA, Business Associate shall: (i) extend the protections of this BAA to such PHI; and (ii) limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such PHI
D. Survival. The obligations of Business Associate under this Section shall survive the termination of this BAA.
A. Regulatory References. A reference in this BAA to a section in the HIPAA Rules means the section as in effect or as amended.
B. Amendment. The parties agree to take such action as is necessary to amend this BAA from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law.
C. Interpretation. Any ambiguity in this BAA shall be interpreted to permit compliance with the HIPAA Rules.
D. No Third-Party Beneficiaries. Nothing express or implied in the Terms of Service or this BAA is intended to confer, nor shall anything herein confer upon any person other than you, Business Associate and their respective successors or assigns, any rights, remedies, obligations or liabilities whatsoever.
E. Privileges and Protections. This BAA does not constitute or evidence a waiver of, nor does it amend, any confidentiality privileges, including the attorney-client privilege, the attorney work product doctrine, peer review privilege, and/or any other applicable privileges or protections afforded by federal or state laws applicable in favor of Business Associate.
F. Entire Agreement. This BAA supersedes any pre-existing agreements between the parties relating to HIPAA in connection with the Services. To the extent of any conflict or inconsistency between the terms of this BAA and the remainder of the Terms of Service, the terms of this BAA will govern. Except as expressly modified or amended under this BAA, the terms of the Terms of Service remain in full force and effect.