Last Revised Date: September 8, 2020
These Terms of Service (“Terms”) govern the use of and access to the sites, content, applications, services, tools and features provided by Ohana Health Inc. (“The Cusp”, “we”, “our” or “us”), including without limitation the website, thecusp.com, and the related mobile application (the “Website”) and any information, text, graphics, photos, or other materials and information uploaded, downloaded, or appearing on the Website (collectively, the “Services”). For purposes of these Terms, “you” and “your” means you as the user of the Services. If you use the Services on behalf of a company, another entity or person, then “you” includes you and that entity or person, and you represent and warrant that (a) you are an authorized representative of such entity or person with the authority to bind such entity or person to these Terms, and (b) you agree to these Terms on such entity’s or person’s behalf.
The following Terms constitute an agreement (“Agreement”) between you and The Cusp. By using or accessing the Services, you are agreeing to these Terms. Please read these Terms carefully, as they include important information about your legal rights.Please note that Section 11 contains an arbitration clause and class action waiver. By agreeing to the Terms, you agree (a) to resolve all disputes with us through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and (b) that you waive your right to participate in class actions, class arbitrations, or representative actions. You have the right to opt-out of arbitration as explained in Section 11.
WHO MAY USE THE SERVICES
Minimum Age and Residence. You must be 18 years of age or older and reside in the United States or any of its territories to use our Services. By using the Services, you represent and warrant that you meet this requirement.
Creating and Safeguarding your Account. To use the Services, you may need to create an account (“Account”). You agree to provide us with accurate, complete, and updated information for your Account. You can access, edit, and update your Account via the Website. You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Account. You must immediately notify us at firstname.lastname@example.org if you know or have any reason to suspect that your Account or password have been stolen, misappropriated, or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account.
Payment. If you buy or become a member of any of our paid Services, you agree to pay us the applicable fees and taxes in U.S. Dollars. Failure to pay these fees and taxes will result in the termination of your access to the paid Services. You agree that (a) we may store and continue billing your payment method (e.g. credit card) to avoid interruption of the Services, and (b) we may calculate taxes payable by you based on the billing information that you provide us at the time of purchase. We reserve the right to change our membership plans or adjust pricing for the Services in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise provided in these Terms, any price changes or changes to your subscription plan will take effect following reasonable notice to you. All memberships are payable in accordance with payment terms in effect at the time the membership becomes payable. Payment can be made by credit card, debit card, or other means that we may make available. Memberships will not be processed until payment has been received in full, and any holds on your account by any other payment processor are solely your responsibility.
Membership Renewals and Cancellations. You agree that if you purchase a membership, your membership will automatically renew at the membership period frequency referenced on your account page (or if not designated, then monthly), and your payment method will automatically be charged at the start of each new membership period for the fees and taxes applicable to that period. To avoid future membership charges, you must cancel your membership 48 hours before the membership period renewal date by emailing us at email@example.com.
Appointment Cancellations. If you cancel an appointment within 48 hours of its scheduled time, you will be charged for half the cost of that appointment. If you miss an appointment without cancelling within 48 hours of the appointment, you will be charged for the full cost of that appointment.
No Membership Refunds. Except as expressly set forth in these Terms, payments for any memberships to the Services are nonrefundable and there are no credits for partially used periods. Following any cancellation by you, however, you will continue to have access to the paid Services through the end of the membership period for which payment has already been made.
RIGHTS WE GRANT YOU
License Grant. Subject to your compliance with these Terms, The Cusp hereby grants you a personal, worldwide, royalty-free, revocable, non-assignable, non-sublicensable, non-transferable, and non-exclusive license to download, install and access the software and content provided to you as part of the Services (and to download a copy of the mobile application onto the equipment or device that you own or control) solely for your own personal, non-commercial use. We reserve all rights in and to the Website that are not explicitly granted to you in these Terms.
Restrictions on Your Use of the Services. You may not do any of the following, unless laws prohibit these restrictions or you have our written permission to do so:
download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Services.
duplicate, decompile, reverse engineer, disassemble or decode the Services (including any underlying idea or algorithm), or attempt to do any of the same;
use, reproduce or remove any copyright, trademark, trade names, slogan, logos, images, service marks or other proprietary notations displayed on or through the Services;
use cheats, automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify the Services;
exploit the Services for any commercial purpose, including without limitation communicating or facilitating any commercial advertisement or solicitation;
use the Services in any manner that could disable, overburden, damage, disrupt or impair the Service or interfere with any other party’s use of the Services or use any device, software or routine that causes the same;
attempt to gain unauthorized access to, interfere with, damage or disrupt the Services, accounts registered to other users, or the computer systems or networks connected to the Service;
circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Services;
use any robot, spider, crawler or other automatic device, process, software or queries that intercepts, “mines,” scrapes or otherwise accesses the Services to monitor, extract, copy or collect information or data from or through the Services, or engage in any manual process to do the same;
introduce any viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful;
use the Services for illegal, harassing, unethical, or disruptive purposes; and/or
use the Services in any way not expressly permitted by these Terms.
Use of the Services. You are responsible for providing the mobile device, wireless service plan, software, Internet connections and/or other equipment or services that you need to download, install, and use the Services. We do not guarantee that the Services can be accessed and used on any particular device or with any particular service plan. We do not guarantee the Services will be available in, or that orders for products can be placed from any particular geographic location. As part of the Services and to update you regarding the status of deliveries, you may receive push notifications, local client notifications, text messages, picture messages, alerts, emails or other types of messages directly sent to you outside or inside the Website (“Push Messages”). You acknowledge that when you use the Services, your wireless service provider may charge you fees for data, text messaging and/or other wireless access, including in connection with Push Messages. You have control over the Push Messages settings, and can opt in or out of these Push Messages through the Services or through your mobile device’s operating system with the possible exception of infrequent, important service announcements and administrative messages. Please check with your wireless service provider to determine what fees apply to your access to and use of the Services, including your receipt of Push Messages from The Cusp. You are solely responsible for any fee, cost or expense that you incur to download, install and/or use the Services on your mobile device, including for your receipt of push messages from The Cusp.
Consent to treatment via telehealth. As a user of telehealth services, you understand that any health care provider performing professional services through the Services, including through the Website, or through third-party video conferencing services, are located at a distant location using secure chat messaging, interactive video and/or audio conferencing in real-time.
While telehealth may improve access to care and lead to a more efficient diagnosis, treatment, and care management, there are potential risks associated with telehealth, as there are with any medical treatment or procedure. The potential risks associated with telehealth include, but are not limited to, insufficient transmission of information that does not allow for appropriate decision-making and diagnosis by the health care provider; delays in diagnosis, consultation, and/or communication due to deficiencies or failures of equipment or systems; failure of security protocols, resulting in a breach of privacy of personal health information; or adverse results or reactions due to lack of access to complete medical records.
By using or accessing the Services, you are agreeing to these Terms and you confirm that you understand the following:
The details of my telehealth interaction, which may include audio, visual and electronic communications between my health care provider and me, will become part of my medical records, as such details would for any other type of face-to-face interaction with a health care provider.
I have the right to withhold or withdraw my consent to the use of telehealth in the course of my care at any time, without affecting my right to treatment or care in the future.
It is my duty to inform my health care provider of my medical history and details regarding my condition in order for The Cusp’s health care providers to provide the best care possible.
I have access to all of my health information pertaining to the telehealth services in accordance with applicable laws and regulations.
I may expect certain anticipated benefits of the use of telehealth by my health care providers, but that no outcomes or results are guaranteed.
My health information may be shared with other individuals for treatment, payment and The Cusp’s health care operations purposes.
Telehealth-based services may not be as complete or appropriate as face-to-face interactions under certain circumstances, and my health care provider may refer me to another health care provider for follow-up or additional care.
I may need to see an appropriately trained health care professional in-person immediately after the telehealth service if an urgent need arises.
There are alternatives to telehealth, such as visiting a health care provider in his or her office; however, I chose to proceed with a telehealth visit at this time.
I have read and understood the information provided above regarding telehealth, including the potential risks, and I will discuss the use of telehealth with my The Cusp health care provider if I have any questions regarding the use of telehealth.
OWNERSHIP AND CONTENT
Ownership of the Services. The Services and their content, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under copyright, trademark and other intellectual property laws. Other than with respect to Your Content (as defined below), you agree that The Cusp and/or its licensors own all right, title and interest in and to the Services (including any and all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests. We and our licensors reserve all rights in connection with the Services and its content (other than Your Content), including, without limitation, the exclusive right to create derivative works.
Ownership of Trademarks. The Cusp name, the Website, and all related names, logos, product and service names, designs and slogans are trademarks of The Cusp or its affiliates or licensors. Other names, logos, product and service names, designs and slogans that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
Ownership of Feedback. You may be able to provide feedback, comments and suggestions for improvements to the Services (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Services or in any such Feedback. All Feedback becomes the sole and exclusive property of The Cusp and The Cusp may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to The Cusp any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback.
Your Content License Grant. In connection with your use of the Services, you may be able to post, upload, or submit content to be made available through the Services (“Your Content”). As a condition of your use of the Services, you grant us a nonexclusive, perpetual, irrevocable, royalty-free, worldwide, transferable, sublicensable license to access, use, host, cache, store, reproduce, transmit, display, publish, distribute, modify and adapt and create derivative works (either alone or as part of a collective work) from Your Content. As part of the foregoing license grant you agree that (a) the other users of our Services shall have the right to comment on and/or tag Your Content and/or to use, publish, display, modify or include a copy of Your Content as part of their own use of the Services, and (b) we have the right to make any of Your Content available to third parties so that those third parties can distribute, make derivative works of, comment on and/or analyze your Content on other media and services (either alone or as part of a collective work). By posting or submitting Your Content through the Services, you represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for Your Content. You agree that Your Content will not contain material subject to copyright or other proprietary rights unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described above.
Notice of Infringement – DMCA Policy. If you believe that any text, graphics, photos, audio, videos or other materials or works uploaded, downloaded or appearing on the Services have been copied in a way that infringes a copyright owned by you, or a person you are authorized to represent, you may submit a notification to our copyright agent in accordance with 17 USC 512(c) of the Digital Millennium Copyright Act (the “DMCA”).
Notices of copyright infringement claims should be sent by mail to: The Cusp, 680 2nd St, San Francisco, CA 94107, Attn: Taylor Sittler, The Cusp., 680 2nd St, San Francisco, CA 94107; or by e-mail to firstname.lastname@example.org. It is our policy, in appropriate circumstances and at our discretion, to disable or terminate the accounts of users who repeatedly infringe copyrights or intellectual property rights of others.
THIRD-PARTY SERVICES AND MATERIALS
Use of Third Party Materials in the Services. Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third-party websites. By using the Services, you acknowledge and agree that we are not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or websites, or for any other materials, products, or services of third parties. Third-Party Materials and links to other websites are provided solely as a convenience to you.
Disclaimers. Your access to and use of the Services are at your own risk. You understand and agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, The Cusp, its parents, affiliates, related companies, officers, directors, employees, agents, representatives, partners and licensors (the “The Cusp Entities”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. The Cusp Entities make no warranty or representation and disclaim all responsibility and liability for: (a) the completeness, accuracy, availability, timeliness, security or reliability of the Services; (b) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services; (c) the operation or compatibility with any other application or any particular system or device; (d) whether the Services will meet your requirements or be available on an uninterrupted, secure or error-free basis; and (e) the deletion of, or the failure to store or transmit, Your Content and other communications maintained by the Services. No advice or information, whether oral or written, obtained from The Cusp Entities or through the Services, will create any warranty or representation not expressly made herein. Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to you.
Medical or Professional Advice. Other than the professional medical services and advice provided by The Cusp healthcare professionals, no other Services constitute medical or other professional advice and are not intended as a substitute for professional medical advice, diagnosis, or treatment. The instructions and guidance provided by the Services outside of the healthcare instructions and advice provided by you The Cusp healthcare professionals are not intended to be used to diagnose, treat, cure, or prevent any medical conditions. The Services are not a substitute for consulting with your health care professionals. Reliance on any information provided through the Services other than those directly provided to you by any of The Cusp healthcare providers is solely at your own risk. Never disregard professional medical advice or delay in seeking it because of information obtained from the Services. If you have any questions about your physical or mental health, you should consult your healthcare provider. IF YOU NEED MEDICAL CARE IN THE EVENT OF A MEDICAL EMERGENCY, CONTACT YOUR PHYSICIAN. IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, CALL 911 OR GO TO YOUR NEAREST EMERGENCY ROOM.
LIMITATIONS OF LIABILITY
TO THE EXTENT NOT PERMITTED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE CUSP ENTITIES BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE CUSP ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.Some states 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 The Cusp shall be limited to the fullest extent permitted by law. THEREFORE, THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
By entering into these Terms and using the Services, you agree that you shall indemnify and hold The Cusp Entities harmless from and against any and all liabilities, costs, damages, losses, and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) your violation or breach of any term of these Terms or any applicable law or regulation; (b) your violation of any rights of any third party; (c) any unauthorized use of the Services; (d) Your Content, or (e) your negligence or willful misconduct.
ARBITRATION AND CLASS ACTION WAIVER
Informal Process First. You agree that in the event of any dispute between you and The Cusp Entities relating in any way to these Terms or your use of the Services, you will first contact The Cusp and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any court action.
Agreement to Arbitrate and Class Action Waiver. After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to these Terms or your use of the Services, will be resolved by arbitration. You and The Cusp agree that any Claim will be settled by final and binding arbitration, using the English language, administered by JAMS under its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under the Terms will take place on an individual basis – class arbitrations and class actions are not permitted. You understand that by agreeing to the Terms, you and The Cusp are each waiving the right to trial by jury or to participate in a class action or class arbitration. Notwithstanding the foregoing, you and The Cusp will have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator. You may instead assert your claim in “small claims” court, but only if your claim qualifies, your claim remains in such court and your claim remains on an individual, non-representative and non-class basis. An arbitrator shall not be bound by rulings in prior arbitrations involving different users but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law.
Costs of Arbitration. Payment for any and all reasonable JAMS filing, administrative and arbitrator fees will be in accordance with the JAMS Rules. If the value of your claim does not exceed $10,000, The Cusp will pay for the reasonable filing, administrative and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose.
Opt-Out. You have the right to opt-out and not be bound by the arbitration provisions set forth in these Terms by sending written notice of your decision to opt-out to email@example.com or to the U.S. mailing address listed at the bottom of this Agreement. The notice must be sent to The Cusp within thirty (30) days of your registering to use the Services or agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in accordance with these Terms. If you opt-out of these arbitration provisions, The Cusp also will not be bound by them.
Updating These Terms. We may modify these Terms from time to time in which case we will update the “Last Revised Date” at the top of these Terms. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the first page of the Services. However, it is your sole responsibility to review the Terms from time to time to view any such changes. The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Services after the modifications have become effective will be deemed your acceptance of the modified Terms.
Termination of License and Your Account. If you breach any of the terms of these Terms, all licenses granted by The Cusp will terminate automatically. Additionally, The Cusp may suspend, disable, or delete your Account and/or the Services (or any part of the foregoing) with or without notice, for any or no reason. If The Cusp deletes your Account for any suspected breach of these Terms by you, you are prohibited from re-registering for the Services under a different name. In the event of Account deletion for any reason, The Cusp may, but is not obligated to, delete any of Your Content. The Cusp shall not be responsible for the failure to delete or deletion of Your Content. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of this Agreement by The Cusp or you. Termination will not limit any of The Cusp’s other rights or remedies at law or in equity.
Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to The Cusp for which monetary damages would not be an adequate remedy and The Cusp shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
California Residents. If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
Export Laws. You agree that you will not export or re-export, directly or indirectly, the Services and/or other information or materials provided by The Cusp hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.
Severability. If any provision, in full or in part, of these Terms shall be unlawful, void or for any reason unenforceable, then that provision, in full or in part, shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
Miscellaneous. These Terms and the licenses granted hereunder may be assigned by The Cusp but may not be assigned by you without the prior express written consent of The Cusp. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect. The Service is operated by us in the United States. Those who choose to access the Service from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws. The Terms are governed by the laws of the State of Delaware and with respect to arbitration by the JAMS Rules, without regard to conflict of laws rules. Except as otherwise expressly provided in these Terms, all arbitration and other litigation of any dispute between you and The Cusp related to these Terms shall be located in Delaware.
How to Contact Us. You may contact us regarding the Services or these Terms at: The Cusp, 680 2nd St, San Francisco, CA 94107, by phone at (415) 373-6706 or by email at firstname.lastname@example.org.