Effective date: July 19, 2019
Welcome to Twentyeighthealth.com. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”) including, without limitation, any request to receive information about, or to purchase any of the products made available through our website(s) (each, a “Product”). Your purchase of any Products will also be governed by any other terms made available by us to you during the sales process. If you have any questions, comments, or concerns regarding these terms or the Services, please contact us by email at firstname.lastname@example.org, by phone at (929) 352-0060 in Brooklyn, NY.
NOTICE: Please read these Terms carefully. They cover important information about Services provided to you and any charges, taxes, and fees we bill you. These Terms include information about future changes to these Terms, automatic renewals, limitations of liability, a class action waiver, and resolution of disputes by arbitration instead of in court.
About the Services.
Twentyeight Health provides direct-to-consumer Services to connect you to licensed medical providers, but does not provide any medical services. All medical care is provided by independent licensed medical providers of New Jersey Birdie Health, P.C. (“Medical Services”). Twentyeight Health also partners with Medly Pharmacy for prescription products (“Products”). You are not required to fill your prescription at Medly Pharmacy.
You acknowledge that although some Products made available through the website may be provided by healthcare professionals, the provision of Products and Medical Services does not create a medical professional/patient relationship between you and Twentyeight Health. The Services of Twentyeight Health are provided to assist you in fulfilling prescriptions, and not for any other medical or reproductive health purposes. Twentyeight Health does not guarantee that a prescription will be written. Twentyeight Health is not an insurance product. Twentyeight Health operates subject to state regulation and may not be available in certain states.
We do not Provide Medical Advice.
Twentyeight Health is not itself a healthcare provider and does not replace your existing relationship with your primary care provider or any other healthcare provider you may use. If you rely on any Content found on the website related to the Services, you do so solely at your own risk. We encourage you to independently confirm any Content relevant to you with other sources, including an OB/GYN, primary care physician, or any other health professional, medical associations relevant to obstetrics and gynecology, your state medical boards, and the appropriate licensing or certification authorities to verify listed credentials and education. Twentyeight Health reserves the right to deny use of the Services if we or health care providers with whom we partner believe that a patient may be better served by another provider, or for any other reason.
WHILE WE HOPE THE PRODUCTS AND SERVICES ARE USEFUL IN YOUR HEALTHCARE JOURNEY, THEY ARE NOT INTENDED AS A SUBSTITUTE FOR, NOR DO THEY REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL ADVICE FROM A QUALIFIED HEALTHCARE PROVIDER, UNDER ANY CIRCUMSTANCE. DO NOT USE THE PRODUCTS OR SERVICES FOR EMERGENCY MEDICAL NEEDS. IF YOU EXPERIENCE A MEDICAL EMERGENCY, IMMEDIATELY CALL 911. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. NOTHING STATED OR POSTED ON THE WEBSITE OR AVAILABLE THROUGH ANY SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE, NURSING, OR OTHER PROFESSIONAL HEALTHCARE SERVICE OR ADVICE, OR THE PROVISION OF MEDICAL CARE.
No Doctor Patient Relationship.
DOCTORS, NURSES AND OTHER MEDICAL PROFESSIONALS USE THE SERVICES TO SHARE CONTENT WITH YOU, BUT YOUR USE OF THIS CONTENT IS NOT A SUBSTITUTE FOR HEALTHCARE. NO LICENSED MEDICAL PROFESSIONAL/PATIENT RELATIONSHIP IS CREATED WITH TWENTYEIGHT WHEN YOU USE THE SERVICES OR CONTENT. THIS IS TRUE WHETHER SUCH CONTENT IS PROVIDED BY OR THROUGH THE USE OF THE SERVICES OR THROUGH ANY OTHER COMMUNICATIONS FROM TWENTYEIGHT HEALTH.
Twentyeight Health encourages healthcare providers to use the Services responsibly, but we have no control over any healthcare provider at any particular time. You agree that TwentyEight Health is not to be liable to you for any injury resulting or arising from, or related to, the use of the website, Products or Services whatsoever.
Will these Terms ever change?
We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice on the Twentyeighthealth.com website, and/or by some other means.
If you do not agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
What about my privacy?
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at email@example.com.
What are the basics of using Twentyeight Health?
If you use TwentyEight Health’s services, you will be required to sign up for an account, and select a password and user name (“Twentyeight Health User ID”). You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Twentyeight Health User ID a name that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else. You will not share your account or password with anyone, and you must protect the security of your account and your password. You’re responsible for any activity associated with your account.
You represent and warrant that you are an individual of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and gotten your parent or guardian to agree to these Terms on your behalf).
You will only use the Services for your own personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you are not authorized to use the Services. We cannot and will not be responsible for your using the Services in a way that breaks the law.
Your use of the Services is subject to the following additional restrictions:
You represent, warrant, and agree that you will not contribute any User Submission (as that term is defined below) or otherwise use the Services or interact with the Services in a manner that:
(a) Infringes or violates the intellectual property rights or any other rights of anyone else (including Twentyeight Health);
(b) Violates any law or regulation, including, without limitation, any applicable export control laws;
(c) Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
(d) Jeopardizes the security of your Twentyeight Health account or anyone else’s (such as allowing someone else to log in to the Services as you);
(e) Attempts, in any manner, to obtain the password, account, or other security information from any other user;
(f) Violates the security of any computer network, or cracks any passwords or security encryption codes;
(g) Runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
(h) “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
(i) Copies or stores any significant portion of the Content;
(j) Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services, and may subject you to a lawsuit for damages.
What are my rights in the Services?
The materials displayed or performed or made available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you agree not to use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Twentyeight Health’s) rights.
You understand that Twentyeight Health owns the Services. You will not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services.
The Services may allow you to copy or download certain Content; please remember that just because this functionality exists, does not mean that all the restrictions above do not apply – they do!
Do I have to grant any licenses to Twentyeight Health or to other users?
Anything you post, upload, share, store, or otherwise provide through the Services is your “User Submission.” Some User Submissions (testimonials only) may be posted for view by other users, but only with your express permission (“Testimonials”).
For all User Submissions, you hereby grant Twentyeight Health a license to translate, modify (for technical purposes, for example making sure your User Submission is viewable on an iPhone as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to provide the Services, as described in more detail below. This is a license only – your ownership in User Submissions is not affected.
If you store a User Submission in your own personal Twentyeight Health account, in a manner that is not viewable by any other user except you (a “Personal User Submission”), you grant Twentyeight Health the license above, as well as a license to display, perform, and distribute your Personal User Submission for the sole purpose of making that Personal User Submission accessible to you and providing the Services to you.
If you provide us (in a direct email or otherwise) with any User Submission that is feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services, then you grant Twentyeight Health the licenses above, as well as all other rights necessary to use and exercise all rights in that User Submission in connection with the Services and/or otherwise in connection with Twentyeight Health’s business for any purpose.
You agree that the licenses you grant are royalty-free, perpetual, sublicensable, irrevocable, and worldwide, provided that when you delete your Twentyeight Health account, we will stop displaying your User Submissions to other users (if applicable), but you understand and agree that it may not be possible to completely delete that Content from Twentyeight Health’s records, and that your User Submissions may remain viewable elsewhere to the extent that they were copied or stored by other users.
Finally, you understand and agree that Twentyeight Health, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
What if I see something on the Services that infringes my copyright?
You may have heard of the Digital Millennium Copyright Act (the “DMCA”), as it relates to online service providers, like Twentyeight Health, being asked to remove material that allegedly violates someone’s copyright. Twentyeight Health respects others’ intellectual property rights, and Twentyeight Health reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers; to review our complete Copyright Dispute Policy and learn how to report potentially infringing content, click here. To learn more about the DMCA, click here.
Who is responsible for what I see and do on the Services?
Any User Submission publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such content originated, and you access all such information or User Submissions at your own risk, and we aren’t liable for any errors or omissions in such User Submission or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use User Submissions or Content or what actions you may take as a result of having been exposed to the User Submissions or Content, and you hereby release us from all liability for your having acquired or not acquired User Submissions or Content through the Services.
You are responsible for all User Submissions you contribute, in any manner, to the Services, and you represent and warrant that you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Content and Services.
Twentyeight Health has no control over, and assumes no responsibility for the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Services. In addition, Twentyeight Health will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third-party website or service.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Twentyeight Health shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site, or between users and any third party, you agree that Twentyeight Health is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Twentyeight Health, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive 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.”
Will Twentyeight Health ever change the Services?
Twentyeight Health is always trying to improve the Services, so they may change over time. Twentyeight Health may suspend or discontinue any part of the Services, or may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. Twentyeight Health will try to give you notice when we make a material change to the Services that would adversely affect you, as practical. Similarly, Twentyeight Health reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
Do the Services cost anything?
b. Payment Method.
The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
c. Recurring Billing.
You may be able to set up recurring billing for the purchase of Products or Services for which there may be recurring charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Products or Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, EMAIL US AT firstname.lastname@example.org.
d. 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 US OR OUR PAYMENT PROCESSOR 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 ON YOUR USER DASHBOARD. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
e. 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 before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
f. Auto-Renewal for Paid Services.
Unless you opt out of auto-renewal, which can be done through emailing customer service, any recurring Products or Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate, subject to a renewal order for any prescriptions being received from your Medical Service provider as necessary. To change or terminate your purchased Products or Services at any time, email customer service at email@example.com. If you terminate a recurring Product or Service, you may use your subscription until the end of your then-current term and your subscription will not be renewed after your then-current term expires. However, you won't be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. If you do not want to continue to be charged on a recurring basis (EVERY ONE (1), THREE (3), SIX (6), OR TWELVE (12) Months), you must cancel the applicable ProDUCT OR Service BY EMAILING CUSTOMER SERVICE AT firstname.lastname@example.org. or terminate your TWENTYEIGHT HEALTH account before the end of the CURRENT TERM. RECURRING PRODUCTS AND Services cannot be terminated before the end of the period for which you have already paid, and except as expressly provided in these terms, YOU will not RECEIVE A refund OF any fees that you have already paid.
g. Reaffirmation of Authorization.
Your non-termination or continued use of purchased Products or Services reaffirms that we are authorized to charge your Payment Method for such purchased Products or Services. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to purchase Products.
What if I want to stop using the Services?
Twentyeight Health is also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. Twentyeight Health has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account. We will try to provide advance notice to you prior to our terminating your account so that you are able to retrieve any important User Submissions you may have stored in your account (to the extent allowed by law and these Terms), but we may not do so if we determine it would be impractical, illegal, not in the interest of someone’s safety or security, or otherwise harmful to the rights or property of Twentyeight Health. To the extent and if necessary to comply with applicable laws, Twentyeight Health shall maintain the personal health information users provide to us in accordance with such applicable laws. And to the extent permitted by law, Twentyeight Health may use such personal health information users provide for purposes of defending itself in case of any litigation brought against Twentyeight Health in connection with provision of the Services.
If you have deleted your account by mistake, contact us immediately at email@example.com – we will try to help, but unfortunately, we cannot promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.
What else do I need to know?
Warranty Disclaimer. Neither Twentyeight Health nor its licensors or suppliers make any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS IS” and without any warranty of any kind from Twentyeight Health or others (unless, with respect to such others only, required by operation of law or provided expressly and unambiguously in writing by a designated third party for a specific product). THE SERVICES AND CONTENT ARE PROVIDED BY TWENTYEIGHT HEALTH (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. WE DO NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCTS OR SERVICES WILL BE EFFECTIVE, RELIABLE OR ACCURATE OR WILL MEET YOUR REQUIREMENTS. WE MAKE NO GUARANTEES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO PROFESSIONAL QUALIFICATIONS, EXPERTISE, QUALITY OF WORK, OR ANY OTHER CONTENT AVAILABLE THROUGH THE SERVICES. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON ANY SUCH CONTENT. FURTHERMORE, WE DO NOT IN ANY WAY ENDORSE OR RECOMMEND ANY INDIVIDUAL OR ENTITY LISTED OR ACCESSIBLE THROUGH THE SERVICES. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL TWENTYEIGHT HEALTH (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO TWENTYEIGHT HEALTH IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. You agree to indemnify and hold Twentyeight Health, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account) and any Products, and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Twentyeight Health’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof.
Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with TWENTYEIGHT HEALTH and limits the manner in which you can seek relief from us. Both you and Twentyeight Health acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Twentyeight Health’s officers, directors, employees and independent contractors (“Personnel”) are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. Any dispute arising out of or relating to the subject matter of these Terms shall be finally settled by binding arbitration in New York, New York. The arbitration will proceed in the English language, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration (“Rules”) and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction.
(b) Costs of Arbitration. The JAMS Rules will govern payment of all arbitration fees. Twentyeight Health will pay all arbitration fees for claims less than $75,000. Twentyeight Health will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c) Small Claims Court. Furthermore, either you or Twentyeight Health may assert claims, if they qualify, in small claims court in New York County, New York or any United States county where you live or work.
(d) Waiver of Jury Trial. YOU AND TWENTYEIGHT HEALTH WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Twentyeight Health are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Twentyeight Health over whether to vacate or enforce an arbitration award, YOU AND TWENTYEIGHT HEALTH WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: 68 Jay Street, Suite 201, Twentyeight Health, Brooklyn NY 11201, postmarked within 30 days of first accepting these Terms. You must include (1) your name and residence address; (2) the email address and/or telephone number associated with your account; and (3) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Twentyeight Health to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party and both you and Twentyeight Health agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, New York, New York, or the [Southern District of New York].
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that Twentyeight Health may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Twentyeight Health agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Twentyeight Health, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Twentyeight Health, and you do not have any authority of any kind to bind Twentyeight Health in any respect whatsoever.
Except as expressly set forth in the section above regarding the arbitration agreement, you and Twentyeight Health agree there are no third party beneficiaries intended under these Terms.