Effective Date: May 26, 2022
Within Health Group, Inc. (“Within,” “we” or “us”) operates and maintains the Within Health website, withinhealth.com for the public. Within Health also provides management, administrative, compliance and other support to affiliated physician practice organizations (each, a “WH-PC”). These physician practice organizations employ and otherwise contract with psychiatrists, psychologists, nurses, dieticians and other health care providers (“Within Health Professionals”) to treat clients of the WH-PCs (“Clients”).
THESE TERMS CONTAIN PROVISIONS THAT LIMIT OUR LIABILITY TO YOU AND REQUIRE YOU TO RESOLVE ANY DISPUTE WITH US THROUGH ARBITRATION AND WITHOUT A JURY TRIAL, ON AN INDIVIDUAL BASIS, AND NOT AS PART OF ANY CLASS OR REPRESENTATIVE ACTION.
BY ACCESSING OR USING THE SERVICES, YOU AFFIRM THAT:
IF YOU DO NOT AGREE WITH THESE TERMS, PLEASE DO NOT ACCESS, BROWSE, OR USE THE SERVICES.
1. Changes to these Terms. We will maintain a current, effective copy of these Terms on the Site. You understand and agree that we may change these Terms at any time. If we make material changes to these Terms, we will make reasonable efforts to notify you of such changes (such as posting a notice on the Site or, if you have provided us with your email, sending you an email notification) and, if you have registered an account on the Services, we may ask you to affirmatively consent to the changes at the time of your next account login. Any use of the Services after such date shall constitute your acceptance of such revised terms and conditions. If any change to these Terms is not acceptable to you, your sole remedy is to cease accessing, browsing and otherwise using the Services.
2. Eligibility. To be eligible to create an account with the Services, you must be at least 13 years of age and your use of the Services must not violate any applicable law or regulation in the jurisdiction in which you reside. If you are between the ages of 13 and 17, you may only create an account with the Services with the consent and involvement of your parent or legal guardian. If you are 18 years of age or older, you may only create an account with the Services if you have the legal capacity to agree to these Terms.
4. Our Ownership of the Services. You expressly acknowledge and agree that, other than User Data (defined below), Within Health and its a ffiliates, licensors and partners and their respective successors and assigns (collectively, “Within Health and Related Parties”) retain sole and exclusive ownership of all worldwide right, title and interest, including all copyrights, patent rights, trade secret rights, and other intellectual property and proprietary rights, in and to the Services, including all Content, data, information, reports, software, tools, links and resources comprised in the Services or provided through the Services, as well as all technologies used by Within Health to provide and operate the Services. Other than a limited license to use as provided in Section 5 below, you have and acquire no other right or license with respect to the Services or any portion or component thereof. Unless expressly authorized by applicable law or in writing by Within Health, you may not copy, reproduce, publicly perform or display, transmit, modify or otherwise create derivative works from, sell, distribute, or otherwise make unauthorized use of the Services or any portion or component thereof. Any unauthorized use of the Services or any portion or component thereof is strictly prohibited and may result in civil and/or criminal penalties. Within Health and Related Parties reserve all rights not expressly granted herein. There are no implied rights or licenses granted to you under these Terms.
4.1. Content. The Services contains material, including but not limited to software, text, graphics and images (collectively referred to as the “Content”). We may own the Content or portions of the Content may be made available to us through arrangements that we have with third parties. The Content is protected by United States and foreign intellectual property laws. Unauthorized use of the Content may result in violation of copyright, trademark, and other laws.
4.2. Site Health Content and Medical Disclaimer. The information contained on the Site does not, and is not intended to, constitute medical advice; instead, all information, content, and materials available on the Site are for general informational purposes only. The Site is not an attempt to practice medicine and is not a substitute for professional medical advice, diagnosis, or treatment. If you have or suspect you may have a health problem, talk to your healthcare provider and follow their advice regardless of anything you have read on the Site. Use of the Site does not establish a doctor-patient relationship. Do not rely on communication through the Site for immediate, urgent medical needs. The Site is not designed to address medical emergencies.
4.3. Trademarks. The trademarks, service marks, and logos of Within Health (the “Within Health Trademarks”) used and displayed on the Services are registered and unregistered trademarks or service marks of Within Health or its subsidiaries or affi liates. Other company, product, and service names located on the Services may be trademarks or service marks owned by third parties (the “Third-Party Trademarks”, and, collectively with the Within Health Trademarks, the “Trademarks”).
4.4. Copyrights. You should assume that all Content is copyrighted unless otherwise noted and may not be used without the express written permission of Within Health. Except as expressly provided above, nothing contained herein shall be construed as conferring any license or right under any Within or third-party copyright.
7. Limitation of Liability; Disclaimer of Warranties.
7.1. NO WARRANTIES OR REPRESENTATIONS. WITHIN HEALTH AND RELATED PARTIES MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT, INCLUDING BUT NOT LIMITED TO ITS ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS. THE WITHIN HEALTH AND RELATED PARTIES SHALL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF THE CONTENT OR ANY OTHER INFORMATION CONVEYED TO THE USER OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. YOU AGREE THAT YOU USE THE SERVICES AND THE CONTENT AT YOUR OWN RISK. WITHIN HEALTH AND RELATED PARTIES DO NOT WARRANT THAT THE SERVICES WILL OPERATE ERROR FREE OR THAT THE SERVICES, THEIR SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR
SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICES OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO WITHIN HEALTH PARTY SHALL BE RESPONSIBLE FOR THOSE COSTS.
7.2. AS IS; AS AVAILABLE. THE SERVICES AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE WITHIN HEALTH AND RELATED PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
7.3. LIMITATION OF LIABILITY. IN NO EVENT SHALL ANY WITHIN HEALTH PARTY BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION, OR DAMAGES INCURRED ARISING FROM THE PURCHASE OR USE OF THIRD-PARTY SUPPLIED INFORMATION, PRODUCTS, AND SERVICES) RESULTING FROM THE USE OR INABILITY TO USE THE SERVICES AND THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH WITHIN HEALTH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.4. STATE LIMITATIONS. SOME U.S. STATES DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, IN SUCH STATES, SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IN SUCH STATES, THE LIABILITY OF THE WITHIN HEALTH AND RELATED PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
7.5. RESIDENTS OF NEW JERSEY. IF YOU ARE FROM NEW JERSEY, THE FOREGOING SECTIONS ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
8. Indemnification; Hold Harmless. You agree to defend, indemnify, and hold harmless Within Health and Related Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of these Terms or your access to, use or misuse of the Content or Services. Within Health shall provide notice to you of any such claim, suit, or proceeding. Within Health reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Within Health’s defense of such matter.
9. Agreement to Arbitrate. This Section 9 is referred to herein as the “Arbitration Agreement.” The United States Federal Arbitration Act (9 U.S.C. §§ 1-16) governs the interpretation and enforcement of this Arbitration Agreement. You and Within Health agree that any and all controversies, claims, and disputes arising out of or related to these Terms or the Services or any information provided through the Services, whether based in contract, tort, warranty, statute, or any other legal or equitable basis, including, without limitation, any dispute or claim relating to the formation, interpretation, or enforceability of any part of these Terms (including the scope and enforceability of this Arbitration Agreement) and any claim that all or any part of these Terms is void or voidable (collectively, “Claims” and individually, a “Claim”), shall be finally resolved by binding arbitration, rather than in court; except that you and we each retain the right: (i) to bring an individual action in small claims court (if the Claim in question qualifies for small claims court); and (ii) to seek injunctive or other equitable relief in court against actual or threatened infringement, misappropriation or violation of intellectual property rights. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court.
9.1. CLASS ACTION WAIVER. YOU AND WITHIN HEALTH AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WITHIN HEALTH AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S).
9.2. Procedures. Arbitration will be conducted by a single and neutral arbitrator in accordance with the American Arbitration Association’s (AAA) Consumer Arbitration Rules and procedures (the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. To learn more about arbitration through the AAA, visit http://www.adr.org.
Prior to initiating arbitration, you and we agree to first make reasonable eff orts to try to resolve a Claim amicably through good-faith negotiations. If a Claim cannot be resolved amicably within 60 days after a party gives written notice (email suffi cient) of the Claim to the other, then either party may initiate arbitration in accordance with this Arbitration Agreement.
To initiate arbitration, a party must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. If you initiate arbitration, please send your written Demand for Arbitration to:
Within Health Group, Inc.
Attn: Legal / Arbitration
2665 South Bayshore Drive, Suite 220, Coconut Grove, FL 33133
Email: [email protected]
If we initiate arbitration, we will send our written Demand for Arbitration to you at the email or mailing address you have provided to us.
In arbitration, the arbitrator will: (i) follow these Terms and apply internal laws of the Delaware, consistent with the United States Federal Arbitration Act and applicable statutes of limitations (or, to the extent (if any) that federal law prevails, will apply
the applicable federal laws of the United States, irrespective of any conflict of law principles); (ii) entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with Delaware or U.S. federal rules of procedure, as applicable; (iii) honor claims of privilege recognized at law; and (iv) have authority to award any form of legal or equitable relief consistent with applicable laws (except that the arbitrator may not award any punitive, incidental, indirect, special, or consequential damages). The decision of the arbitrator will be final and binding on both parties. Judgment on the arbitration award rendered may be entered in any court of competent jurisdiction.
9.3. Venue. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Within Health may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator's discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise.
9.4. Confidentiality. You and Within Health agree that the entire arbitration proceeding will be conducted in a confidential manner and that the arbitrator’s decision and award will be kept confidential by both parties and, except as may be required by applicable law or a valid court order, will not be disclosed to any third party without the express prior written consent of both parties.
9.5. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees.
9.6. JURY TRIAL WAIVER. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
9.7 Severability. If a court decides that any term or provision of this Arbitration Agreement other than Section 9.1 is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified.
10. LIMITATION ON TIME TO FILE CLAIMS. YOU AGREE THAT ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE AGAINST WITHIN HEALTH ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICES OR ANY INFORMATION PROVIDED THROUGH THE SERVICES, MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES, OR BE PERMANENTLY BARRED.
11. Note to International Users. The Services are controlled by Within Health, which is located in the United States of America. Within Health makes no representation that the Content and Services are appropriate or available for use in locations outside of the United States. Accessing the Services from territories where such content, information or other materials are illegal is prohibited. Those who choose to access these Services from locations outside of the United States do so on their own initiative and are responsible for compliance with local laws.
12. Linked Sites. The Services contains links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. Links to External Sites are not a referral or endorsement of any other entity, item, or service. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster of External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access any External Sites, you do so at your own risk.
14. Termination of the Terms. Within Health reserves the right, in its sole discretion, to restrict, suspend, or terminate these Terms and your access to all or any part of the Services or the Content at any time and for any reason without prior notice or liability. Within Health reserves the right to change, suspend, or discontinue all or any part of the Services or the Content at any time without prior notice or liability.
15. Compliance with Laws. You are solely responsible for ensuring compliance with the laws of your specific jurisdiction. You expressly agree to comply with any applicable export restrictions under any applicable export control laws and not to export or re-export any of the Content to countries or persons prohibited under such export control laws. By downloading the Content, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of the Content.
16. U.S. Government Restricted Rights. The Content is provided with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the U.S. Government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor. Use of the Services or Content by the U.S. Government constitutes acknowledgement of our proprietary rights in the Services and Content.
17. General Legal Terms.
17.1. Governing Law. These Terms are governed by the internal substantive laws of the Delaware, without respect to its conflict of laws provisions, except that the United States Federal Arbitration Act shall govern the interpretation and enforcement of the Arbitration Agreement contained in Section 9 above. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms.
17.2. Severability. If any provision of these Terms is found to be unlawful, invalid or unenforceable by any court having competent jurisdiction, the invalidity or unenforceability of such provision shall not a ffect the validity of the remaining provisions of these Terms, which shall remain in full force and eff ect.
17.3. No Waiver. Failure of Within Health to act on or enforce any provision of these Terms shall not be construed as a waiver of that provision or any other provision in these Terms. No waiver shall be e ffective against Within Health unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance.
17.4. Entire Agreement. Except as expressly agreed by Within Health and you, these Terms constitute the entire agreement between you and Within Health with respect to the subject matter hereof, and supersede all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. A printed version of these Terms and of any related notice given in electronic form shall be admissible in arbitral, judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
17.5. Successors and Assigns. Within Health may assign its ownership, control, or other rights to any party at any time without notice to you. These Terms will inure to the benefit of our successors, assigns, licensees, and sublicensees.
17.6. Electronic Notices. You agree that, where applicable, we may send you notice via email to the email address you have provided, and we are not responsible for your failure to receive notice if email is quarantined by your email security system (e.g., “junk” or “spam” folder) or if you fail to update your email address. You also agree that we may send you notice through the Services.
17.7. Section Headings. The section headings are provided merely for convenience and shall not be given any legal import.