Last updated October 13, 2020
THESE TERMS OF SERVICE REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS, AND INCLUDE A CLASS ACTION WAIVER. THESE TERMS LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
By using the Service, you agree to be bound by these Terms. If you object to anything in these Terms, do not use the Service.
Acceptance of Terms of Service
a. Electronic Agreement. These Terms are an electronic contract that set out the legally binding terms of your use of and subscription to the Service. By using the Service (including by clicking the “I accept” button associated with these Terms), you accept these Terms and agree to the terms, conditions, and notices contained or referenced herein. They may be modified by the Companies from time to time, at their sole discretion, with such modifications to be effective upon posting by the Companies on the Website or via the Service or providing you with notice of the modification. It is important that you review such modifications because if you continue to use the Service after we have posted the modifications, you indicate that you agree to be bound by the modified Terms.
c. Withdrawing Your Consent. If you later decide that you do not want to receive future Communications electronically, please send an email to [email protected] or a letter to Talkiatry, 109 W 27th Street, Suite 5S, New York, NY 10001. Your withdrawal of consent shall be effective within a reasonable time after we receive your withdrawal notice described above. Your withdrawal of consent will not affect the legal validity or enforceability of the Terms provided to, and electronically signed by, you prior to the effective date of your withdrawal. However, if you withdraw your consent to receive Communications electronically, we may terminate your use of the Service.
You represent and warrant that you are at least 18 years of age and have the right, authority and capacity to enter into these Terms and to abide by all of the terms and conditions of these Terms.
Account Registration and Security
If you want to use certain features of the Service, you will have to create a User account via the Website or the App. It is important that you provide us with accurate, complete and up-to-date information for your account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. You are also responsible for maintaining the confidentiality of the username and password that you designate during the registration process for your account, and you are fully responsible for all activities that occur under your account. You agree to (a) immediately notify the Companies of any unauthorized use of your account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. If you do not, we might have to suspend or terminate your account. The Companies will not be liable for any loss or damage arising from your failure to comply with this provision. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
Term and Termination
These Terms will remain in full force and effect while you are a User. You may terminate your use of the Service at any time by contacting us at Attn: Customer Care, Talkiatry, 109 W 27th Street, Suite 5S, New York, NY 10001 or via email at [email protected] The Companies in their sole discretion may terminate your use of the Service at any time, including, but not limited to, if you breach these Terms, by sending notice to you at the email address you provide via the Service. If the Companies terminate your use of the Service because you have breached these Terms, you will not be entitled to any refund of paid but unused fees. All decisions regarding the termination of accounts shall be made in the sole discretion of the Companies. The Companies are not required to provide you with notice prior to terminating your use of the Service and are not required, and may be prohibited, from disclosing a reason for the termination of your account. Even after termination, these Terms will remain in effect such that all terms that by their nature may survive termination shall be deemed to survive such termination, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions. In addition, you understand and acknowledge that following termination of your account, the Companies may be required to, and will, maintain electronic copies of your medical records in accordance with applicable law.
Non-commercial User of the Service
The Service is for the personal use of individual Users only and may not be used in connection with any commercial endeavors. Organizations, companies, and/or businesses are not permitted to, and should not use the Service. Illegal and/or unauthorized uses of the Service, including collecting usernames and/or email addresses of Users by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of or linking to the Website, App or Service, may be investigated, and appropriate legal action will be taken, including without limitation, civil, criminal, and injunctive redress. Use of the Service is with the permission of the Companies, which may be revoked at any time, for any reason, in the Companies’ sole discretion.
We welcome feedback, comments and suggestions for improvements to the Service (“Feedback”). You can submit Feedback by emailing us at [email protected] You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
Content and Software on the Service
a. Proprietary Rights; License. Talkiatry or its licensors exclusively own and retain all proprietary rights, title and interest in the Website, the App and the Service, including the Software (defined below) and all associated intellectual property rights contained therein. The Website, the App and the Service contain the copyrighted material, trademarks, and other proprietary information of Talkiatry, and its licensors. Subject to the terms and conditions of these Terms, 1Life Healthcare grants to you a personal, limited, non-exclusive, nontransferable, non-sublicensable license to (i) download and install a copy of the software and technology that enable the App, together with any updates and bug fixes (the “Software”) on a mobile device and (ii) access and use the graphics, audio, messages, photos or profiles and works of authorship of any kind that Talkiatry provides or makes available via the Service (the “Content“) during the term of these Terms solely in connection with your permitted use of the Website, the App and the Service and solely for your personal and non-commercial purposes. Talkiatry and its licensors retain all rights not expressly granted to you in these Terms. Content includes without limitation User Content (defined below).
b. Restrictions. You shall not, and you shall not enable any third party, to (i) access or attempt to access any other systems, programs or data of the Companies that are not available for public use; (ii) copy, reproduce, republish, upload, post, transmit or distribute any Content that is not User Content; (iii) work around any technical limitations in the Software, or decompile, disassemble or otherwise reverse engineer the Software except as otherwise permitted by applicable law; (iv) perform or attempt to perform any actions that could interfere with the proper operation of the Software or Service, prevent access to or use of the Software or Service by the Companies’ other licensees or clients, or impose an unreasonable or disproportionately large load on the infrastructure; (v) remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service (including the Software); or (vi) otherwise use the Software except as expressly allowed under this Section.
c. Reliance on Content, Advice, Etc. Opinions, advice, statements, offers, or other information or Content made available through the Service, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such Content. The Companies do not: (i) guarantee the accuracy, completeness, or usefulness of any third party Content on the Service, or (ii) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party that appears on the Service. Under no circumstances will the Companies or their affiliates be responsible for any loss or damage resulting from your reliance on third-party information or other Content posted on the Website or the App or transmitted to or by any Users via the Service.
Content Posted by You to the Service
We may, in our sole discretion, permit Users to publicly post, upload, publish or transmit Content through the Service (the “User Content“). We will have no obligations with respect to User Content. By making any User Content available through the Service, you hereby grant us a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, disclose, distribute, incorporate, modify, publicly display, publicly perform and create derivative works based upon your User Content and all data, images, sounds, text, and other things embodied therein only in connection with operating and providing the Service to you. You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Service, nor any use of your User Content by us on or through the Service will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. The Companies do not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. You will not provide inaccurate, misleading or false User Content to the Companies via the Service. If the User Content you provided to the Companies subsequently becomes inaccurate, misleading or false, you will promptly notify the Companies of such change.
a. You understand and agree that the Companies reserve the right to review and delete any User Content, in each case in whole or in part, for any reason including if, in the sole judgment of the Companies, the User Content (i) violates these Terms or might be fraudulent, false, misleading, deceptive, defamatory, discriminatory, offensive, illegal; or (ii) might violate, or encourage any conduct that would violate, any applicable law, regulation or the rights of others, or cause harm or threaten the safety of Users or others. The Companies have the right to investigate violations of these Terms or conduct that affects the Service. We may also consult and cooperate with law enforcement authorities to prosecute Users who violate the law.
b. You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Consent (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist in the Service. We are not responsible or liable for the removal or deletion or for the failure to remove or delete any of your User Content.
c. Your use of the Service must be in accordance with any and all applicable laws and regulations.
d. You may not engage in advertising to, or solicitation of, other Users. Although the Companies cannot monitor the conduct of its Users, it is also a violation of these Terms to use any information obtained from the Service in order to harass, abuse, or harm another person, or in order to contact, advertise to, solicit, or sell to any User without the User’s prior explicit consent.
The following is a partial list of the type of actions that you may not engage in with respect to the Service:
You will not post, distribute, or reproduce in any way any User Content that infringes third party intellectual property rights or violates third party rights of privacy or rights of publicity;
- You will not express or imply that any statements you make are endorsed by the Companies;
- You will not use any robot, spider, site search/retrieval application, or other manual or automatic device or process to download, access, retrieve, index, “data mine”, or in any way reproduce or circumvent, avoid, bypass, remove, or deactivate the navigational structure or technical measures or presentation of the Service or its contents;
- You will not interfere, access, tamper with or disrupt the Service, Website or App or the servers or networks connected to the Service, Website, or App;
- You will not attempt to probe, scan or test the vulnerability of any Talkiatry system or network or breach any security or authentication measures;
- You will not send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- You will not use any meta tags or other hidden text or metadata utilizing the Companies’ trademarks, logos, URLs or product names without the Companies’ express written consent;
- You will not use the Service, Website, App or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
- You will not post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- You will not forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Service;
- You will not use, display, “frame” or “mirror” any part of the Service, the Companies’ names, any Companies’ trademarks, logos or other proprietary information, or the layout and design of any page or form contained on a page, without prior written authorization from the Companies. You also shall not use meta tags or code or other devices containing any reference to the Companies or the Service in order to direct any person to any other web site for any purpose; and
- You will not collect or store any personally identifiable information from Users without their express permission.
Subscriptions; Charges on Your Billing Account
a. General. Charges will be charged to your online account that you establish for use of the Service (your “Billing Account“). You agree to pay the Companies all charges at the prices then in effect for any use of the Service by you or other persons (including your agents) using your Billing Account, and you authorize the Companies to charge your chosen payment provider (your “Payment Method“) for the Service. You agree to make payment using that selected Payment Method. The Companies reserve the right to correct any errors or mistakes that they make even if they have already requested or received payment.
b. Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY THE COMPANIES IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE THROUGH YOUR ACCOUNT SETTINGS. IF YOU FAIL TO PROVIDE THE COMPANIES ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT THE COMPANIES MAY CONTINUE CHARGING YOU FOR ANY USE OF THE SERVICE UNDER YOUR BILLING ACCOUNT.
c. Payment Method. If the Companies do not receive payment from the third party services provider who manages your Payment Method (“Payment Method Provider“), you agree to pay all amounts due on your Billing Account upon demand. You agree that your Payment Method Provider may impose terms and conditions on you, which are independent of these Terms and you agree to comply with all of those terms.
d. Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge at least 10 days before the scheduled date of the transaction. If you do not agree with the new amount in the notice, you will have an opportunity to cancel the transaction by contacting the Companies at [ ]. As noted above, any agreement you have with your Payment Method Provider will govern your use of your Payment Method. You agree that the Companies may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
Cancellation & No-Show Policy: I agree that if I cancel or reschedule an appointment without 2 operating days (Monday through Saturday) notice or do not show up for my appointment, I will be charged a $100 fee.
Card on File Authorization: I authorize Talkiatry to keep my credit card information on file and automatically charge the chard in accordance with their cancellation & no-show policy. I also authorize Talkiatry to charge the card on file for any outstanding balance due.
I authorize Talkiatry to file a claim with my insurance carrier for services rendered. I authorize payment of medical benefits by any insurance carrier to either Talkiatry or myself. I understand that insurance is a contract between myself and my insurance carrier. Talkiatry is not a party of this contract. I understand Talkiatry will attempt to advise me of my benefits as a courtesy and are not responsible if the information they receive is incorrect.
We will bill your insurance carrier as a courtesy to you. In order to properly bill your insurance carrier, we require that you disclose all insurance information including primary and secondary insurance cards, as well as, any change of insurance information within 60 days of service. Failure to provide complete insurance information may result in patient responsibility for the entire bill. It is the insurance company that makes the final determination of your eligibility and benefits, if a claim is ultimately denied or the insurance company determines all or any part of the claim is your responsibility,patient will be responsible for up to the full amount of charges. It is your responsibility to determine if your insurance company is contracted with us. If your insurance carrier is not contracted with us, you are responsible to pay any portion of the charges not covered by insurance, including but not limited to those charges above the usual and customary allowance. If your insurance carrier pays you directly, you are responsible for payment and agree to forward the payment to us immediately. All copayments, coinsurances, and deductibles may apply. Copayments are the patient’s responsibility at the time services are rendered. If you are uninsured, please note that your account is your responsibility. The parent or legal guardian of a minor patient (under 18 years of age) is responsible for payment on the minor’s account. Regardless of any personal arrangements that a patient might have outside of our office, if you are over 18 years of age or older and receiving treatment, you are ultimately responsible for payment of the service. Our office will not bill any other personal party.
You agree that Talkiatry does not offer crisis coverage and that you may not be able to get in touch with you provider in a timely manner outside of your schedule appointments. You understand and agree that if it is an emergency that you should contact 911. You release Talkiatry from any liability, risks, damages and responsibilities involved if you are unable to get in touch with your provider or Talkiatry in a timely manner.
To learn more about your rights as a patient including the filing of misconduct complaints, please visit the OPMC website at: https://www.health.ny.gov/professionals/doctors/conduct/frequently_asked_questions.htm
Modifications to Service
The Companies reserve the right at any time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that the Companies shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
Blocking of IP Addresses
In order to protect the integrity of the Service, the Companies reserve the right at any time in their sole discretion to block Users from certain IP addresses from accessing the Service.
The Companies are not responsible for any incorrect or inaccurate Content posted on the Service, including User Content. The Companies are not responsible for the conduct, whether online or offline, of any User. The Companies assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of any Communication. The Companies are not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any website or combination thereof, including injury or damage to Users’ or to any other person’s computer related to or resulting from participating or downloading materials in connection with the Service. Under no circumstances will the Companies or any of their affiliates, advertisers, promoters or distribution partners be responsible for any loss or damage, including personal injury or death, resulting from anyone’s use of the Service, any Content posted on the Service or transmitted to Users, or any interactions between Users of the Service, whether online or offline. THE SERVICE IS PROVIDED “AS-IS” AND THE COMPANIES EXPRESSLY DISCLAIM ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. The Companies cannot guarantee and do not promise any specific results from use of the Service.
In addition to the preceding paragraph and other provisions of these Terms, any general advice that may be posted on the Website, the App or the Service is for informational purposes only and is not intended to replace or substitute for any medical or other advice. The Companies make no representations or warranties and expressly disclaim any and all liability concerning any treatment, action by, or affect on any person following the general information offered or provided within or through the Website, the App or the Service. If you have specific concerns or a situation arises in which you require medical advice, you should consult with an appropriately trained and qualified medical services provider.
The Companies make no representation that the Service is appropriate, or is available for use outside the U.S. Access to and use of the Service where the access or use of the Service is illegal is prohibited. Those who choose to access and use the Service from outside the U.S. do so on their own initiative, at their own risk, and are responsible for compliance with applicable laws.
Permission to Treat/Telehealth Medical Treatment
By clicking “Accept” during the account registration process, you give permission to the health care providers of Talkiatry to medically care for you in person, and, if applicable, by Telehealth (defined below), as applicable and appropriate. You may withdraw this consent at any time by both terminating your account and no longer seeking care from Talkiatry. You understand that part of the Service requires release of your personal health information, including test results, to an online personal health record (in accordance with our HIPAA Policy) and communication with the Talkiatry healthcare team electronically via the Service or the App. You consent to receive emails or other communications from us pertaining to your care and your health (such as automated health reminders).
You understand that virtual encounters with Talkiatry or our Telehealth services via phone, email, the App or otherwise, could involve, and you hereby consent to the use of, automated tools for diagnosis, care, treatment or communication pertaining to healthcare matters. You also acknowledge that such virtual encounters with Talkiatry may be provided by a variety of healthcare providers, including physicians, Registered Nurses, Nurse Practitioners, and other support or medical personnel.
This Website, the App and Telehealth services are NOT appropriate for emergency or urgent medical matters. You agree that for all urgent or emergency matters that you believe may immediately affect your health, you will immediately contact your medical services provider, call 911 or go to an emergency room at a local hospital facility.
“Telehealth” is the delivery of healthcare services using technology when the healthcare provider and patient are not in the same physical location, and/or the virtual delivery of healthcare services, including by a medical provider or via digital or automated tools, including without limitation tools for medical or health-related diagnosis and treatment. Telehealth may be used for diagnosis, treatment, follow-up and/or patient education, and may include, without limitation, the following: electronic transmission of patient medical records, medical images, or other patient data; synchronous (i.e., “real time”) and asynchronous (i.e., non-“real time”) interactions via audio, video, and/or data communications; automated or digital tools for diagnosis, care, treatment and/or communication pertaining to healthcare or medical matters; and output data from medical devices, sound and video files. Further, you understand that it may be possible that your condition cannot be treated via Telehealth, or that information transmitted through Telehealth may not be sufficient or of too poor of image quality, or insufficient information or data to allow for appropriate medical decision making. Accordingly, you may be required to seek additional in-person medical care, alternative healthcare or emergency services. You agree that if your health or medical problem or condition persists after use of Telehealth via this Site or the App, you will immediately contact your medical services provider and seek appropriate additional in-person medical care or emergency care, as appropriate.
Links and Third Party Applications
The Service may provide, or third parties may provide, links to other sites or other online resources. In addition, our Website or App may also integrate third-party applications, products or services (the “Third Party Applications“), which may have access to your data and protected health information (“PHI“). These third parties are not affiliated with us and may have different policies with respect to handling your data and PHI, and use of such Third-Party Applications is subject to their applicable terms and conditions and privacy policies. We are not responsible for and do not make any representations or warranties with respect to any third party technology or Third Party Applications, or the actions or inactions of such third parties, accessible via the App, Service or the Website. Any purchase by you of any Third Party Applications or any exchange of data or other interaction between you and a provider of a Third Party Application is solely between you and the applicable third-party service provider.
Because the Companies have no control over such Third Party Applications and third-party sites and resources, you acknowledge and agree that the Companies are not responsible for the availability, quality, accuracy, integrity, safety, reliability or legality of such external sites or resources, and do not endorse and are not responsible or liable for any content, advertising, products or other materials on or available from such Third Party Applications, sites or resources. You further acknowledge and agree that the Companies shall not be responsible or liable, directly or indirectly, for any damage, harm, injury or loss of any kind caused or alleged to be caused by or in connection with the purchase, use of, download, installation or reliance upon, any such content, goods or services available on or through any such site, Third Party Application or resource.
We do not endorse and are not responsible for the information and security practices or privacy policies of Third Party Applications or web sites operated by others that may be linked to or from the Service, Website or App. No web sites that link to the Service may frame or otherwise incorporate the Content on the Service.
Limitation on Liability
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANIES (OR THEIR EMPLOYEES, OFFICERS, DIRECTORS OR AGENTS) BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, BODILY INJURY OR DEATH, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE WEBSITE, APP, SERVICE OR SOFTWARE, WHETHER BASED ON CONTRACT, WARRANTY, PRODUCT LIABILITY, TORT OR OTHER LEGAL THEORY AND EVEN IF THE COMPANIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE COMPANIES’ LIABILITY TO YOU ARISING FROM THESE TERMS, OR THE USE OF OR INABILITY TO USE THE WEBSITE, APP, SERVICE OR SOFTWARE, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF USD $100.00 OR THE AMOUNTS PAID BY YOU TO THE COMPANIES FOR ACCESS TO AND USE OF THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
U.S. Export Controls
You agree to comply fully with all U.S. and foreign export laws and regulations to ensure that neither the Software nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the Service, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
These Terms and any action related thereto will be governed by the laws of the State of Delaware without regard to its conflict of laws provisions.
AGREEMENT TO ARBITRATE
You and the Companies agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Service (collectively, “Disputes“) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court, and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an (“IP Protection Action“). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide the Companies with written notice of your desire to do so by email or regular mail at [ ] or Talkiatry, [ ] within thirty (30) days following the date you first accept these Terms (such notice, an “Arbitration Opt-out Notice“). If you don’t provide the Companies with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide the Companies with an Arbitration Opt-out Notice, will be the state and federal courts located in the Delaware and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide the Companies with an Arbitration Opt-out Notice, you acknowledge and agree that you and the Companies are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and the Companies otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If a decision is issued stating that applicable law precludes enforcement of any limitations set forth in this Agreement to Arbitrate on the right to arbitrate claims on a class or representative basis, or as part of a consolidated proceeding, as to a given claim for relief, then that claim (and only that claim) must be severed from the arbitration and brought in the state or federal courts located in Delaware. All other claims will be arbitrated. This “Dispute Resolution” section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA“) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules“) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. AAA provides a general form for a Demand for Arbitration and a separate form for Demand for Arbitration for California residents. The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
ARBITRATION LOCATION AND PROCEDURE
Unless you and the Companies otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and the Companies submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. The Companies will not seek, and hereby waive all rights they may have under applicable law to recover, attorneys’ fees and expenses if they prevail in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, the Companies will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding anything to the contrary in these Terms, if the Companies change this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to [email protected]) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of the Companies’ email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and the Companies in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
Indemnity by You
You agree to defend, indemnify and hold the Companies, their subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including, without limitation, reasonable attorney’s fees, made by any third party due to or arising out of your use of the Service in violation of these Terms and/or arising from a breach of these Terms and/or any breach of your representations and warranties set forth above.
No Third Party Beneficiaries
You agree that, except as otherwise expressly provided in these Terms, there shall be no third party beneficiaries to these Terms.
Waiver and Severability
The failure of the Companies to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of the Companies. Except as expressly set forth in these Terms, the exercise by any party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction or an arbitrator finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
These Terms constitute the entire and exclusive understanding and agreement between the Companies and you regarding the Service, and these Terms supersede and replace any and all prior oral or written understandings or agreements between the Companies and you regarding the same.
You may not assign or transfer these Terms, by operation of law or otherwise, without the Companies’ prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. The Companies may assign or transfer these Terms, at their sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by the Companies (i) via email (in each case to the address that you have provided); or (ii) by posting to the Website or the App or via the Service. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
If you have any questions about these Terms or the Service, please contact the Companies at 917-634-5311 or by mail at 109 W 27th Street Suite 5S, New York, NY 10001.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.