Last Updated: Oct 06, 2021
These Terms contain a mandatory arbitration provision that requires the use of arbitration on an individual basis and limits the remedies available to you in the event of certain disputes (see Section 16).
- The Services are not for medical emergencies or urgent situations. If you believe your symptom or situation is urgent or life-threatening, call 911 or your local emergency medical system immediately.
- Do not delay or forgo seeking medical care from a health care provider if you have questions, concerns, or symptoms related to health topics or information that may be presented or referenced on the Services.
- Application of or reliance on any of the content, techniques, ideas, or suggestions accessed through the Services is at your sole discretion and risk.
- We do not recommend or endorse any specific drugs, tests, providers, products, procedures, opinions, “off-label” drug uses, or any other information that may be provided through Services.
The Services include (1) tools for access to and interaction with physicians and other health care providers who are licensed in one or more U.S. states (“Providers”) for communication, consultations, assessments, and treatment (“Telemedicine Consultation”); (2) tools to communicate and receive health and wellness-related information and education from associates who are not licensed healthcare providers (“Health Coaching”); (3) an artificial intelligence-enabled chatbot to practice behavioral therapy techniques (“AI Therapy”); (4) a symptom checker tool (“Symptom Checker”); and (5) administrative support in connection with scheduling and payment for health care providers, pharmacy and laboratory services, and other services that we may add from time to time.
Certain features of the Services may be subject to additional terms and conditions (“Additional Terms”). We may present Additional Terms to you when you activate or use a feature to which Additional Terms apply (either in the form of disclaimers or notices, or a separate document), and your use of any feature constitutes your acceptance of these Additional Terms before using such feature. For example, Additional Terms apply to the Telemedicine Consultation Services, as set forth below. Unless otherwise stated in the Additional Terms, all Additional Terms are incorporated into these Terms. If you do not agree with the Additional Terms, you will not have access to the feature to which they relate. These Terms and Additional Terms apply equally. If any Additional Term is inconsistent with any provision of these Terms, the Additional Term will prevail only for the feature(s) to which that Additional Term applies.
To use the Services, you must be at least 18 years old.
Specifically, to be eligible to use the Services you must meet the following criteria and, by agreeing to these Terms, represent and warrant that you: (a) are 18 years of age or older; (b) have not been previously suspended or removed from the Services, or engaged in any activity that could result in suspension or removal from the Services; (c) will only maintain one Account at any given time; (d) have full power and legal authority to enter into these Terms and in doing so will not violate any other agreement to which you are a party, and will comply with these Terms at all times; and (e) agree to use your first name and your email address when registering (although you may use a fictitious name or initials after registration when using the Services).
If you are accessing or using our Services on behalf of another person or entity, you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms.
To be eligible to use the Telemedicine Consultation Services you must be a legal resident of the United States.
You may need to register for a user account (“Account”) to access some or all of our Services. It is your responsibility to prevent disclosure of your username and password and to change your password if you feel that its security has been compromised. You may change your password at any time. We shall not be liable or responsible for any damages that result from your failure to keep your username and/or password secure. You are responsible for all activity in your Account. If you permit others to use your Account credentials, you are responsible for the activities of such users that occur in connection with your Account.
As part of activating your Account, you are required to provide us with a valid email address and to update this address if you change your email account.
4. Communication Preferences
By creating an Account, you also consent to receive electronic communications from Youper Health (e.g., via email, text message, or by posting notices to the Services). These communications may include operational notices about your Account (e.g., payment authorizations, password changes, and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys, and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
5. Additional Terms
The Services are not for medical emergencies or urgent situations. If you believe your symptom or situation is urgent or life-threatening, call 911 or your local emergency medical system immediately. Do not rely on or attempt to use the Services for any urgent medical needs.
The Telemedicine Consultation Services are delivered virtually (as opposed to in-person), which may limit the scope and nature of the assistance provided to you. You hereby acknowledge these limitations and agree to proceed with the Telemedicine Consultation Services. You understand that the Telemedicine Consultation Services will be provided to you at the sole discretion of the Provider who is interacting with you, with no guarantee of diagnosis, treatment, or prescription.
Youper, INC is not a medical group, and it does not provide, nor is it responsible, for any healthcare services that are provided to you. Any Telemedicine Consultation Services obtained through the platform are provided by licensed physicians, nurses, or other healthcare professionals contracted or employed by independent medical groups (“Medical Groups”). The Provider is responsible for providing you with a Notice of Privacy Practices describing its collection and use of your health information. If you do not agree to be bound by those terms, you are not authorized to access or use Telemedicine Consultation Services. You acknowledge and agree that not every condition is appropriate for treatment via telemedicine. The Provider will determine whether or not the condition being diagnosed and/or treated is appropriate for a telemedicine encounter. Telemedicine Consultations are not available in every state, nor are they available at all times, and we reserve the right to limit participation in Telemedicine Consultations due to our staffing constraints or any other reason.
As with any service, there are potential risks associated with the use of telemedicine or other forms of telehealth services, which may include, without limitation, the following: (a) delays in medical evaluation and consultation or treatment may occur due to deficiencies or failures of the telehealth technology, or miscommunications between you and the Provider; (b) security protocols could fail, causing a breach of privacy of personal medical information; and (c) lack of access to your medical records or other information or ability to perform an in-person examination, which could result in negative health outcomes (e.g., adverse drug interactions or allergic reactions).
You certify that you are physically located in the state you select in the Services as your current location at the time of your receipt of the Telemedicine Consultation Services. Your ability to access and use the Telemedicine Consultation Services is conditioned on the truthfulness of this certification. The Providers that you access through the Service rely upon this certification in order to interact with you. If your certification is inaccurate, you agree to indemnify us and the Providers with whom you interact from any resulting losses, damages, costs, or expenses.
Pharmacy: You have a right to select any pharmacy of your choice to fill prescriptions obtained through our service. For prescriptions you will choose to have filled through our service and the medication is covered by your subscription, our pharmacy partners (Pharmacy) including but not limited to Honeybee Health or one of its affiliates will bill the fee for your prescription to Youper. The Pharmacy or one of its affiliates will bill Youper as applicable, however, you are ultimately liable for any fees and costs not covered or paid by Youper. You have the option of paying the pharmacy cash if your medication or order is not covered by your subscription.
Health Coaching Services: Youper Health has contracted with personnel who are not licensed therapists or licensed healthcare professionals (“Health Coaches”) to help you clarify personal problems or the need for change/improvement, facilitate the application of behavioral therapy techniques you practiced using the AI Therapy Service, and facilitate access to health and wellness-related information and education. You acknowledge and understand that Health Coaching is NOT INTENDED TO AND DO NOT PROVIDE CLINICAL PSYCHOTHERAPY OR COUNSELING, MEDICAL ADVICE, DIAGNOSIS, OR MEDICAL TREATMENT. While coaching services may be provided under the coordination of a psychologist or licensed therapist, coaching is not a licensed or regulated service and does not require licensed professionals.
AI Therapy Service comprehends the access to a digital and fully automated, mobile, psychological program that uses a chatbot interface to deliver just-in-time adaptive cognitive behavioral therapy interventions and exercises. You acknowledge and understand that the AI Therapy Service is NOT INTENDED TO AND DO NOT PROVIDE CLINICAL PSYCHOTHERAPY OR COUNSELING, MEDICAL ADVICE, DIAGNOSIS, OR MEDICAL TREATMENT.
Payment for Services: By providing a credit card or other payment method accepted by us (“Payment Method”), you are expressly agreeing that we are (or our service provider is) authorized to charge to the Payment Method for the total amount of the fees associated with your use of the Service, together with any applicable taxes (collectively, as applicable, a “Purchase”). If the Payment Method cannot be verified, is invalid, or is otherwise not acceptable, your Purchase may be suspended or canceled. You must resolve any payment method problems before we proceed with your Purchase. If a payment is not successfully settled and you do not edit your Payment Method information or cancel your Purchase or Account, you remain responsible for any uncollected amounts and authorize us to continue billing the Payment Method, as it may be updated.
When you register for a monthly subscription, you expressly acknowledge and agree that (a) Youper Health (or our third-party payment processor) is authorized to charge you on a monthly basis for your subscription (in addition to any applicable taxes and other charges) for as long as your subscription continues, and (b) your subscription is continuous until you cancel it or we suspend or stop providing access to the services in accordance with these terms. you may cancel your subscription at any time by managing your subscription in your account settings.
From time to time, to the extent legally permitted, we may offer discounts and/or free trials of certain subscriptions for specified periods of time. If we offer you a discount or free trial, the specific terms will be provided in the marketing materials describing the particular trial or at registration.
Once your discount or free trial ends, we (or our third-party payment processor) will begin billing your designated payment method on a recurring basis for your full subscription price (plus any applicable taxes and other charges) for as long as your subscription continues, unless you cancel your subscription prior to the end of your free trial. Instructions for canceling your subscription are described above. Please note that you will not receive a notice from us that your free trial has ended or that the paid portion of your subscription has begun. We reserve the right to modify or terminate free trials at any time, without notice, and at our sole discretion.
You agree that authorizations to charge your Payment Method remain in effect until you cancel it in writing, and you agree to notify us of any changes to your Payment Method. You represent and warrant that you are authorized to use the Payment Method and will not dispute charges for the Service that correspond to consultation fees or the co-payment required by your health plan. You acknowledge that the origination of Automated Clearing House (“ACH”) transactions to your account must comply with applicable provisions of U.S. law. In the case of an ACH transaction rejected for insufficient funds, we may at our discretion attempt to process the charge again at any time within 30 days.
We will collect applicable sales tax on services for which we determine we have a duty to collect sales tax. If a service is subject to sales tax, you agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.
You acknowledge and agree that fees for consultations may increase at any time.
Consent: By clicking “I accept” or by accessing or using the Service, you acknowledge and accept the risks identified above and the terms associated with the receipt of Telemedicine Consultation Services and you give your informed consent to receive such services under the Terms and the Additional Terms.
6. Reservation of Rights
We may modify, suspend, or discontinue any aspect of the Services at any time without prior notice. You agree that we shall not be liable to you or any third party for any modification, suspension, or discontinuance of any feature or component of the Services. In addition, we reserve the right, at any time and for any reason, with or without notice, and without liability to you or any other user, to: (a) restrict, limit, suspend or terminate your and/or any other user’s access to the Services; (b) monitor any user’s use of the Services to verify compliance with these Terms and/or any applicable law; (c) investigate any suspected or alleged misuse of the Services and cooperate with law enforcement and/or third parties in such investigation; and (d) disclose information about any user’s use of the Services in connection with law enforcement investigation of alleged illegal activity, or in response to a lawful court order or subpoena.
7. Proprietary Rights
We grant you a limited right to use the Services for your personal use. All original content, materials, features, and functionality (including, without limitation, text, information, images, photos, graphics, artworks, logos, videos, audios, directories, listings, databases, and search engines) (the “Content”) are owned by Youper Health and/or its licensors and may be protected by U.S. and foreign copyright, trademark and other intellectual property laws. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-transferable right and license to access and use the Services and Content solely for your personal, non-commercial use; provided, however, that such license does not include any right to (a) sell, resell our Services and the Content; (b) copy, reproduce, distribute, publicly perform or publicly display Content, except as expressly permitted by us or our licensors; (c) modify the Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services and the Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Services and the Content other than for their intended purposes. Except for these limited licenses granted to you, we reserve all other rights. This license may be revoked and terminated by us at any time and for any reason. Any unauthorized use, reproduction, or distribution of the Services or Content is strictly prohibited and may result in termination of the license granted herein, as well as civil and/or criminal penalties.
All trademarks, trade names, and logos appearing on or through the Services are owned by us or licensed by us. The “Youper Health” name and logo and all other Youper Health names, marks, logos, and other identifiers are trademarks and service marks of Youper Health. Names, marks, logos, and other identifiers of third parties, including third-party health care providers, are trademarks and service marks of their respective owners. You may not use or display any Youper Health trademarks, trade names, or logos without our prior written permission. We reserve all rights.
If you choose to provide us with any comments, suggestions, ideas, or other feedback (“User Feedback”), you agree that we have an unrestricted right to use it, and you are not entitled to receive any compensation.
8. User Supplied Material
Our Services may allow you to share messages, text, photos and other materials (collectively, “User Content”) with your Providers. Except for the license you grant below, as between you and Youper Health, you retain all rights in and to your User Content. You hereby grant Youper Health a nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display your User Content in all media formats and channels now known or later developed without compensation to you.
If you supply or transmit any User Content via the Services, you represent and warrant to us that you have the legal right necessary to grant us the license described above and that such material will not violate any law or the rights of any person or entity (including without limitation copyright, trademark, patent, trade secret, or other intellectual property rights, or moral right or right of publicity). Any User Content sent privately is the sole responsibility of the person that submitted it. Although Youper Health reserves the right to review or remove all User Content on the Services, we do not necessarily review all of it. As such, we do not take responsibility for any User Content provided through the Services.
9. Appropriate Use of the Services
You agree to use the Services in accordance with all applicable local, state, national and foreign laws, treaties, and regulations. You will not violate any contract, intellectual property, or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Services. In addition, without limitation, you will not, directly or indirectly, do any of the following while using or accessing the Services:
- Engage in any harassing, threatening, intimidating, predatory, or stalking conduct;
- Use or attempt to use another user’s Account without authorization from that user and Youper Health;
- Copy, reproduce, sell, rent, lease, distribute, transfer, modify or make derivative works from the Services or any Content;
- Remove, alter or tamper with any copyright, trademark, or other proprietary rights or legal notices contained in any Content obtained from the Services;
- Decompile, disassemble, reverse engineer, or otherwise attempt to discover or derive any proprietary software code or information associated with the Services;
- Use the Services in any manner that could interfere in any way with the operation of the Services or any server, network or system associated with the Services, including, without limitation, by: hacking, mail-bombing, flooding, overloading, or making “denial of service” attacks; probing, scanning or testing the vulnerability of the Services or any server, network or system associated with the Services; breaching or circumventing firewall, encryption, security or authentication routines; accessing data not intended for you;
- Use any automated program, tool, or process (including, without limitation, web crawlers, robots, bots, spiders, and automated scripts) to access the Services or any server, network, or system associated with the Services, or to extract, collect, harvest or gather content or information from the Services;
- Frame or otherwise create a browser or border environment around any page or content of the Services, or deep-link to any internal page or area of the Services; or
- Make any other use of the Services that violates these Terms or any applicable law.
10. Links to Third Party Sites
To the fullest extent permitted by applicable law, you release Youper Health and our owners, subsidiaries, affiliated companies, employees, shareholders, or directors (collectively, the “Youper Health Parties”) from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE ANY RIGHTS YOU MAY HAVE UNDER CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” You also waive any rights you may have under any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
You agree to indemnify, defend and hold harmless the Youper Health Parties from and against any and all damages, liabilities, fines, penalties, losses, expenses, fees, and costs (including without limitation reasonable attorneys’ fees and costs) related to all claims, causes of action, charges, and investigations, arising out of or relating to: (a) your access to, or misuse of the Services, or the Content; (b) any User Content and/or User Feedback you submit or transmit; (c) your violation of any of these Terms; (d) any activity related to your registration by you or any other person accessing the Services through your Account, including, without limitation, negligent or wrongful conduct; (e) your conduct in connection with our Services and/or (f) your violation of any third party right, including, without limitation, any intellectual property right, publicity, confidentiality, property or privacy right.
Youper Health reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
13. Disclaimer of Warranties
You expressly agree that the use of the Services and Content is at your sole risk. The Services are provided on an “as is” and “as available” basis. Youper Health expressly disclaims all warranties of any kind, whether express or implied, any warranties of merchantability, fitness for a particular use or purpose, non-infringement, title, operability, condition, quiet enjoyment, value, and accuracy of data. Youper Health makes no warranty that the Services or Content will meet your requirements, or that the Services will be uninterrupted, timely, secure, or error-free; nor does Youper Health make any warranty as to the results that may be obtained from the use of the Services or Content, or that defects in the Services or Content will be corrected, or that any information obtained through or in connection with the Services or Content will be accurate or complete. You understand and agree that any material downloaded or otherwise obtained through the use of the Services is done at your own discretion and risk and that you will be solely responsible for any damage or loss of data that results from the download of such material and/or information. No advice or information, whether oral or written, obtained by you from Youper Health or through the Services or Content will create any warranty not expressly made herein.
The Services and Content are not intended to provide a substitute for your own sound and reasonably prudent judgment and are not intended to be for diagnosis or treatment. Persons using the Services and Content assume full responsibility for the use of the Services, Content, materials, and other information provided, and agree that Youper Health is not responsible or liable for any claim, loss, or damage arising from their use. Your reliance on the Services and Content obtained or used by you is solely at your own risk except as provided by law.
Some states may not allow the exclusion of implied warranties, so the above exclusion may not apply to you. But, to the extent permitted by applicable law, we exclude all warranties.
14. Limitation of Liability
You understand that to the extent permitted under applicable law, in no event will the Youper Health Parties be liable to you for any direct, indirect, incidental, special, punitive, consequential, or exemplary damages, including, without limitation, damages for loss of revenues, profits, goodwill, use, data or other intangible losses (even if such parties were advised of, knew of or should have known of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy), arising out of or related to your use of the Services or any Content, regardless of whether such damages are based on contract, tort (including negligence and strict liability), warranty, statute or otherwise. To the fullest extent permitted by applicable law, in no event shall the maximum aggregate liability of the Youper Health Parties (jointly) arising out of or in any way related to access or use of the Services or Content, exceed the greater of $100 or the amount you paid to us in the one (1) month period immediately preceding the date on which your claim arose.
You further agree that the limitations of liability set forth above will survive any termination or expiration of these Terms and will apply even if any limited remedy specified herein is found to have failed its essential purpose. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages, and as a result, some of the above disclaimers may not apply to you. To the extent we may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of our liability shall be the minimum permitted under applicable law.
15. Mutual Rights of Termination
You may terminate these Terms, for any or no reason, at any time, upon notice to Youper Health. Youper Health may terminate or suspend your use of the Services, your account, and/or your registration without notice, for any or no reason, and at any time. You understand that termination of your agreement with Youper Health and your account will not entitle you to any refund and may involve deletion of your information and any content you uploaded using such Account. You agree that we will not be liable to you or any other party for any termination of your access to the Services or deletion of your Account or Content uploaded by you.
16. Dispute Resolution; Arbitration
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Youper Health and limits the manner in which you can seek relief from us, including a class action waiver. This Section 16 applies to all Disputes (unless excluded under Section 16.1) between you and the Youper Health Parties.
16.1 Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands, or proceedings (collectively, “Disputes”) in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Youper Health agree (a) to waive your and Youper Health’s respective rights to have any and all Disputes arising from or related to these Terms, or the Services or Content, resolved in a court, and (b) to waive your and Youper Health’s respective rights to a jury trial. Instead, you and Youper Health agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
16.2. No Class Arbitrations, Class Actions, or Representative Actions
You and Youper Health agree that any Dispute arising out of or related to these Terms, the Services, or Content is personal to you and Youper Health and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Youper Health agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Youper Health agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
16.3. Federal Arbitration Act
You and Youper Health agree that these Terms affect interstate commerce and that the enforceability of this Section 16 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
16.4. Notice; Informal Dispute Resolution
You and Youper Health agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Youper Health shall be sent by certified mail or courier to Attn: Legal Dept, Youper, INC., 548 Market St PMB 54448 San Francisco, California 94104-5401. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with Section 4 and will include (a) our name, postal address, telephone number, and an email address at which we can be contacted with respect to the Dispute, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that we are seeking. If you and Youper Health cannot agree on how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Youper Health may, as appropriate and in accordance with this Section 16, commence an arbitration proceeding or, to the extent specifically provided for in Section 16.1, file a claim in court.
Except for Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets, or patents, you and Youper Health agree that any Dispute must be commenced or filed by you or Youper Health within one (1) year of the date the Dispute arose, otherwise the underlying claim is permanently barred (which means that you and Youper Health will no longer have the right to assert such claim regarding the Dispute). You and Youper Health agree that (a) any arbitration will occur (i) in the State of California, County of Santa Clara, (ii) in the county where you reside, or (iii) telephonically, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the American Arbitration Association’s (“AAA”) Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth herein (“AAA Rules”), which are hereby incorporated by reference, and (c) that the seat of the arbitration shall be San Francisco, California and that state or federal courts of the State of California and the United States, respectively, sitting in the State of California, County of Santa Clara, have exclusive jurisdiction over any litigation in aid of arbitration and the enforcement of any arbitration awards.
The parties shall attempt to agree on the single arbitrator to be appointed to resolve the dispute. If the parties are unable to reach an agreement within 30 days after commencement of the arbitration with the AAA, the arbitrator selection process identified in the AAA Consumer Arbitration Rules shall apply. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court. Each party shall be responsible for its costs incurred in such arbitration, but the arbitrator shall not have the authority to re-allocate those costs in an award or otherwise. If you cannot afford to pay for the arbitration, you agree to provide us the option of paying the arbitrator before seeking to initiate any other form of dispute resolution, including litigation. As part of the arbitration, both you and Youper Health will have the opportunity to reasonable discovery of non-privileged information that is relevant and material to the Dispute, including the ability to request from each other, and third parties, documents, information and testimony that is relevant and material to the Dispute.
16.6. Authority of Arbitrator
As limited by the FAA, these Terms and the applicable AAA Rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
16.7. AAA Rules
The AAA Rules and additional information about the AAA are available on the AAA website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the AAA Rules, or (b) waive your opportunity to read the AAA Rules and any claim that the AAA Rules are unfair or should not apply for any reason.
If any term, clause, or provision of this Section 16 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses, and provisions of this Section 16 will remain valid and enforceable. Further, the waivers set forth in Section 16.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
16.9. Opt-Out Right
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 16 by writing to: Attn: Legal Dept, Youper, INC., 548 Market St PMB 54448 San Francisco, California 94104-5401. In order to be effective, the opt-out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 17.
17. Applicable Law; Venue
These Terms, and your access to and use of the Services shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to conflict of law rules or principles (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved on an individual basis in the state or federal courts of the State of California and the United States, respectively, sitting in the State of California, County of Santa Clara.
18. International Users
19. Changes to these Terms
We reserve the right to change our Terms at any time. Any changes that we make will become a part of our agreement with you when they are posted to our website. Your continued use of our Services will constitute your agreement to the changes we have made. If we make material changes, we will post the amended Terms to our website, and update the “Last Updated” date above. We may also notify you by sending an email notification to the address associated with your Account. Revisions are effective and binding when posted on the website. The last date these Terms were revised is set forth at the top of these Terms.
20. Apple Device Additional Terms
If you access an App via a mobile device or tablet branded by Apple, Inc. (“Apple”) and running Apple’s iOS (an “Apple Device”), the following terms (“Apple Terms”) are hereby made part of these Terms:
If these Apple Terms conflict with any other provision of these Terms, then the Apple Terms control with respect to access and use of the Digital Services via an Apple Device. Apple is not a party to these Terms and does not own and is not responsible for any App you access via your Apple Device (“iOS App”) and the content thereof. The Apple App Store Terms of Service (the “App Store Terms of Service”) control to the extent of any conflict with these Terms with respect to an iOS App. The license granted to use an iOS App is limited to a non-transferable license to use the App on an Apple Device that you own or control and as permitted by the usage rules set forth in the App Store Terms of Service. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to any iOS App. In the event of any failure of the iOS App to conform to any applicable warranty provided by Youper Health in these Terms, you may notify Apple and Apple will refund the purchase price for the iOS App (if any). To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS App and will not be responsible for any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty. Apple is not responsible for addressing your or any third-party claims relating to an iOS App and/or use of an iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that an iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. It is not the intent of these Terms to limit Youper Health’s liability beyond what is permitted by applicable law. In the event of any third party claim that an iOS App or your possession and use (in accordance with these Terms) of an iOS App infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. In addition to the requirements of Section 3, 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. Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms with respect to any iOS App, and that, upon your acceptance of these Terms, Apple has the right (and deemed to have accepted the right) to enforce the Terms against you with respect to the iOS App as a third-party beneficiary thereof. Please direct any questions, complaints or claims with respect to an iOS App to Youper Health at the contact information provided below.
If any provision of these Terms is found by a court of competent jurisdiction or arbitrator to be invalid, the parties nevertheless agree that the court should endeavor to give the effect to the parties’ intentions as reflected in the provision and that the other provisions of these Terms remain in full force and effect.
The following sections will survive the expiration or termination of these Terms and the termination of your Account: all defined terms and Sections 2 through 9, and 12 through 24.
These Terms, and any other terms and policies incorporated herein, constitute the entire agreement between you and Youper Health relating to your access to and use of the Services. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Youper Health. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Youper Health’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity.
24. Contact Us
- By mail: Youper, Inc., attn.: Care Team, 548 Market St PMB 54448, San Francisco, California 94104-5401
- By email: [email protected]