EFFECTIVE: February 13, 2019
The Ouchie mobile applications (the “App”) and Website (the “Website”), including all tools, services, content and information available on or through the Application and Website, is a service made available by Upside Health, Inc. The App and Website together are referred to as “Ouchie.” “We”, “us”, and “our” means Upside Health Inc., and all of our parent, subsidiary, and related organizations, and when appropriate includes our employees, directors, trustees and agents. “You” and “your” means the person using the App and/or Website.
By using Ouchie’s apps and/or web site (collectively, and separately, the “Service”), in any manner, including viewing content, you agree to be bound by the terms and conditions of this contract (the “Terms of Service” or “Agreement”) between you and Ouchie (whether or not you choose to become a user (“User”). Your access to and use of the Service is expressly conditioned on your compliance with these terms and conditions, and is governed by this Agreement.
By merely providing access to Ouchie’s apps and/or website, we do not warrant or represent that: (a) the Content is accurate, complete, up-to-date or current; (b) We have any obligation to update any Content; (c) the Content is free from technical inaccuracies or typographical errors; (d) that the Content does not infringe on the intellectual property rights of any third party; (e) that the Content is free from changes caused by a third party; (f) your access to the apps and/or Web Site will be free from interruptions, errors, computer viruses or other harmful components; and/or (g) any information obtained in response to questions asked through, or postings made on, the apps and/or Web Site is accurate or complete. It is agreed and understood that in no way does Ouchie provide medical or other health care services; rather, it is a community of those with shared interests and concerns. Any reference or link to any third party shall not be deemed, in any way, to be a recommendation or endorsement of such third party by Upside Health, Inc.
Upside Health, Inc. reserves the right to update, change or modify these Terms of Service. Any new features that augment or enhance the current Service shall be subject to the Terms of Service. Continued use of the Service after any such changes shall constitute your consent to such changes. Upside Health, Inc. is not liable to you or any third party for any suspension or discontinuance of the Service. You can review the most current version of the Terms of Service at any time at https://www.ouchie.com/terms-and-conditions/. Your use of the Ouchie Service indicates that you accept and are bound by this Agreement.
Please note that this Service Agreement limits our liability and we do not provide warranties for the Service. This Service Agreement also limits your remedies. These warranty disclaimers and limitations are covered in Sections 6, 7 and 8.
OUCHIE IS INTENDED TO PROVIDE INFORMATION AND NON-URGENT COMMUNICATIONS ONLY. IN CASE OF AN EMERGENCY, CALL 911.
You understand that Ouchie is not a monitoring service of any kind.
I. HEALTH INFORMATION AND INFORMATION ABOUT UPSIDE HEALTH, INC.
How to Use Ouchie. Ouchie is intended to allow you to be involved in your care and have access to health-related information. It does not take the place of your doctor or other health care provider. EMERGENCY CARE IS NOT AVAILABLE THROUGH OUCHIE. IF YOU HAVE AN EMERGENCY, CALL 911 OR GO TO THE EMERGENCY ROOM. Ouchie does not include your medical records. It only has the pain items and information that you have tracked through the system. Ouchie is not a monitoring service of any kind.
Because Ouchie does not include all of your medical information, you should ensure that your provider is aware of all the medicines that you take and all the providers that you see. Should you elect to seek treatment with a partner location of Ouchie, you hereby consent to the sharing of your postings, content or updates on Ouchie’s Website or App with our Ouchie partner. You have the right to revoke this consent at any time by providing Ouchie written notice this consent is revoked. Such notice must be sent to the address in accordance with Section VIII.
Review Your Information. Copies of your Ouchie information is stored on Ouchie, and available through the Website and App. Please review all personal information you provided for accuracy and inform us immediately if it needs to be changed.
Health-Related Links. The Website and App each provide health-related information and links to health resources and health care providers on the Web. The information provided and the people listed may or may not be of benefit to you, and making this information available does not mean that Ouchie or your healthcare provider necessarily agree[s] with or approves of the information. We select the sites we link to with care, but we do not promise anything about them and are not responsible for the information on those sites. Sometimes, links may break or may not send you to the intended website. Ouchie is not responsible if the link does not work or does not send you to the intended website.
Children. Parents are permitted to access medical information of their children until the child reaches age 12. Children ages of 12-18 may be given access to their information through Ouchie, but parental access will not be permitted.
III. OUCHIE LEGAL PROVISIONS
Copyright and Trademark. The Ouchie design, data compilations, tools, text and graphics, and the selection and arrangement of such elements are copyrighted and are protected by worldwide copyright laws and treaty provisions, ALL RIGHTS RESERVED. Unless otherwise indicated, all product and service marks and logos displayed on the Ouchie App and Website may be subject to our trademark rights.
Links to Other Materials. Third party web sites and apps which may be to the App or Website are not under our control, and we are not responsible for the content or practices of any third party link contained in the App or Website. We reserve the right to terminate any link or linking program at any time. We provide such links only as a convenience to you. We have not endorsed, tested or verified any information, programs, companies, or products on any website or provided as part of any third party app to which Ouchie links. We make no warranties or representations regarding such third party sites or apps or the information or content appearing on such sites or apps. If you decide to access any third party web sites or apps linked to Ouchie, you do so entirely at your own risk.
Territory. We make no representation that content and materials provided through Ouchie are legal or appropriate for use from outside the United States. If you access Ouchie from outside the United States, you do so at your own risk. You may not use Ouchie in violation of United States export laws and regulations.
Your Account. You will need an email address/user name and password to set up your Ouchie account. You are responsible for maintaining the confidentiality of your user name and/or password and for restricting access to your account. You agree to accept responsibility for all activities that occur under your account or password. You agree to provide only current, complete, accurate and truthful information. If you are accessing and using the App or Website on someone else’s behalf, then you represent that you have the authority to bind that person to these Terms. To the extent you do not have such authority you agree to accept all liability for any harm resulting from your access or use. We reserve the right to refuse service, to suspend service, and/or terminate accounts without prior notice if we decide, in our sole discretion, to do so.
User’s Representations, warranties and covenants. You represent, warrant and covenant that you will not use the Service for any illegal or unauthorized purpose and will not sue Ouchie or the Service and if you log in to Service, that you:
are at least 18 years of age;
are human. Accounts accessed by “bots,” spiders, or other automated methods are not permitted;
understand that the technical processing and transmission of the Service, including your content may be transmitted unencrypted and involve (a) transmission over various networks and (b) changes to conform and adapt to the technical requirements of connecting networks and devices;
understand that Ouchie cannot guarantee the identity of any other users with whom you may interact in the course of using the Ouchie Services. Additionally, we cannot guarantee the authenticity of any data which users may provide about themselves or relationships they may describe;
you will use the Service in a manner consistent with any and all applicable laws and regulations. You will not engage in advertising to, or solicitation of, other members to buy or sell any products or services through the Service. You will not transmit any chain letters or junk email to other members.
You are solely responsible for your interactions with other members. We reserve the right, but have no obligation, to monitor and/or mediate disputes between You and other members;
you are solely responsible for the content or information You transmit to other members. You will not post on the Service, or transmit to other members or to Us or our employees, officers, directors and agents, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party’s rights (including but not limited to, intellectual property rights, trade secrets, and rights of privacy and publicity) or is subject to an enforceable privilege (including, without limitation, attorney-client or trade secret privileged material); and,
you agree that Ouchie has no responsibility or liability for the deletion, corruption or failure to store any messages or other content maintained or transmitted by the Service.
Responsibility. You are responsible for all usage or activity of your Ouchie account and the Username/Password combination that accesses it. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your account, at our sole discretion, and you may be referred to appropriate law enforcement agencies.
User Responsibilities. You agree that you:
will not share your login with anyone else;
are responsible for maintaining the confidentiality of your password and account, and are fully responsible for all activities that occur, and content posted, under your account with or without your knowledge;
will not share any confidential or privileged information received from the Service with any third parties;
will not falsely state, impersonate, or otherwise misrepresent your identity, including but not limited to the use of a pseudonym, or misrepresenting your current or previous positions and qualifications, or your affiliations with a person or entity, past or present; and,
will not upload, post, email, transmit or otherwise make available any content or initiate communications which include information that you do not have the right to disclose or make available under any law or under contractual or fiduciary relationships (such as insider information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements).
Changes and Discontinuance. We may change or discontinue any part of this Service, without notice, at any time, at our sole discretion.
Limitations. Upside Health, Inc. owns and retains, to the fullest extent of the law, all rights in the Service including but not limited to its copyrighted material, trademarks, patented processes, trade secrets, and other proprietary information. You will not distribute, transmit, transfer, offer, copy, publish, display, modify, or sell, assign, or sublicense any portion of the Service, its code, or any proprietary information on the Service, or any intellectual property or other proprietary right in any of the foregoing. You will not reverse engineer, reverse assemble, or otherwise attempt to discover any source code or proprietary information, or obtain unauthorized access to the Service. The foregoing does not apply to user content.
IV. USER CONTENT
Submission; License. You may submit personal and/or health information, comments, ideas, suggestions, photos, reviews and other content (the “Content”) through the App or Website. We are not responsible for any Content you provide. Upon submission, you grant us a license to use, display or otherwise exploit the Content, other than personally identifiable health information, under a perpetual, worldwide, royalty-free, fully paid-up irrevocable right and license, which includes a right to sublicense rights of exploitation. Our rights to the Content will apply to the Content in any form or medium, whether now known or hereafter known.
Content Violation. As between you and us, you have complete responsibility for any claim related to illegal use, delivery, display, or similar exploitation of any Content. If notified that Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion to edit, remove, request the removal of, or take other action with respect to the Content. We have no liability or responsibility to you and other users regarding the Content or our decision with respect to the Content.
Content Warranty. You represent and warrant to us that (i) you have the rights to grant us the rights that you purport to grant in these Terms; (ii) Content you provide is accurate and not misleading; and that (iii) Content you provide is not illegal, obscene, vulgar, harassing, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses or other malicious code, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam.”
Restrictions on Use. You may not:
• Interfere with, breach or abuse the security measures implemented to protect Ouchie, the information available through Ouchie, and/or the resources used to provide the Ouchie Services;
• Disrupt or interfere with the operation of Ouchie;
• Transmit to or through the App or Website any virus, trojan horse, worm, or similarly harmful, disruptive or destructive computer program, code, script or object or use or seek to use the computers that are used for Ouchie as a botnet or otherwise divert the Ouchie resources to your own purposes;
• Monitor, mirror, copy, summarize reverse engineer, reverse assemble, decompile or create any derivative work from some or all the App, Website or any materials used to provide the Ouchie Services (including the underlying software);
• Unless authorized to do so, use another person’s account or password to access Ouchie or otherwise obtain unauthorized access to Ouchie or the data or information of another person;
• Use Ouchie or the resources used to support or operate Ouchie in any illegal manner or for any illegal purpose, or any other manner or purpose that would expose us or our service providers to civil or criminal liability;
• Use the Ouchie App or Website to transmit any form of unsolicited commercial e-mail or similar messages or otherwise use Ouchie for commercial purposes without the prior written approval from Ouchie;
• Use Ouchie in any manner that could reasonably be expected to damage, disable, overburden or impair access to or the functionality of the Ouchie App or Website;
• Obtain Ouchie username/password combination for use by any person except for yourself;
• Modify, adapt or hack the Service or modify another app or website so as to falsely claim or imply that it is associated with the Service, Upside Health, Inc., or any other service;
• Reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service or access to the Service without the express written permission of Upside Health, Inc.;
• Verbally, physically, or otherwise abuse (including threats of abuse or retribution) any member or any Upside Health, Inc. employee, agent or officer;
• Upload, post, host, or transmit unsolicited email, SMSs, or spam messages;
• Sell, loan or otherwise transfer your Upside Health, Inc. Username;
• Violate any applicable federal, state or municipal laws or regulations;
• Plagiarize, violate or otherwise infringe upon the trademark, copyright, patent, trade secret, or any other rights of any person, firm or entity, expressly including libel, slander or invasion of rights of privacy, publicity or “moral rights” (“droit moral”); or
• Attempt, or permit, encourage or authorize any other person to do any of the foregoing.
To do any of the above constitutes a breach of this Agreement.
V. OUCHIE SOCIAL MEDIA TOOLS
• Code of Conduct. The following rules apply to social media:
You may not post any material that is defamatory, false, obscene, indecent, lewd, violent, abusive, threatening, harassing, discriminatory, in violation of law or that constitutes hate speech;
You must respect the privacy of our participants and users. You may only post information about another person’s medical condition with that person’s approval;
You may not post anyone’s insurance information, identification documents, or sensitive financial information;
You may not provide any false personal information or create an account for anyone other than yourself without permission;
You may not use our social media features if you are a convicted sex offender;
If your use of social media tools requires a user ID and password, you may not share your user ID and password with anyone else, let anyone else access your account, or do anything else that might jeopardize the security of your account; and,
You may not post any applications on our social media tools.
VI. DISCLAIMER OF WARRANTIES
You understand that Ouchie uses third party vendors for hardware, software, networking, storage, related technology, and the hosting of the Service. Your use of the Service is at your sole risk. The service is provide on an “as is” and “as available” basis. Ouchie does not warrant that (i) the Service will meet your specific requirements; (ii) the service will be uninterrupted, timely, secure, or error-free; (iii) the results that may be obtained from the use of the Service will be accurate or reliable; (iv) the quality of any products, services, information, or other material obtained by you through this Service will meet your expectations; and, (v) any errors in the Service will be corrected. Due to the number of sources from which information on the Service is obtained, and the inherent hazards of electronic distribution and the Internet, there may be delays, omissions, or inaccuracies in obtaining or accessing such information and the Service. Ouchie disclaims any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, operability or availability of information accessed through the Service. Ouchie disclaims any responsibility for the deletion, failure to store, mis-delivery, or untimely delivery of any information or material.
• General. WE MAKE NO REPRESENTATION OR WARRANTY THAT (i) THE OUCHIE APP OR WEBSITE WILL MEET YOUR REQUIREMENTS, (ii) THE OUCHIE APP OR WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (iii) THE QUALITY OF ANY SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE OUCHIE APP OR WEBSITE WILL MEET YOUR EXPECTATIONS. WE UNDERTAKE NO OBLIGATION TO UPDATE, AMEND OR CLARIFY THE OUCHIE APP OR WEBSITE. YOU AGREE THAT YOUR USE OF THE OUCHIE APP OR SITE IS AT YOUR SOLE RISK.
• No Medical Advice. THE INFORMATION AND SERVICES PROVIDED THROUGH OUCHIE ARE PROVIDED FOR GENERAL CONSUMER UNDERSTANDING AND EDUCATIONAL PURPOSES ONLY AND SHOULD NOT BE INTERPRETED AS A RECOMMENDATION FOR A SPECIFIC TREATMENT PLAN, PRODUCT OR COURSE OF ACTION. THE INFORMATION MAY CONTAIN INACCURACIES AND TYPOGRAPHICAL ERRORS. MEDICAL INFORMATION CHANGES RAPIDLY. ALTHOUGH WE MAY UPDATE THE OUCHIE APP OR WEBSITE, SOME OF THE INFORMATION MAY BE OUT OF DATE OR CONTAIN OTHER ERRORS. WE DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY INFORMATION POSTED OR ANY OPINION, ADVICE OR STATEMENT DISPLAYED ON THE OUCHIE APP OR WEBSITE. YOU AGREE THAT YOUR USE OF OUCHIE IS AT YOUR SOLE AND EXCLUSIVE RISK. THE INFORMATION PROVIDED BY OUCHIE SHOULD NOT BE RELIED UPON FOR SPECIFIC MEDICAL ADVICE FOR ANY PERSON. NEITHER UPSIDE HEALTH, OUCHIE, NOR OUR REPRESENTATIVES AND AGENTS ASSUME ANY RESPONSIBILITY FOR HOW YOU USE THE INFORMATION PROVIDED THROUGH OUCHIE. YOU SHOULD ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER PRIOR TO STARTING ANY NEW TREATMENT OR IF YOU HAVE ANY QUESTIONS REGARDING YOUR LABORATORY RESULTS, YOUR MEDICAL CONDITION(S) OR ANY HEALTH CARE SERVICES THAT HAVE BEEN OR MAY BE PROVIDED TO YOU. YOU UNDERSTAND THAT OUCHIE IS NOT A MONITORING SERVICE OF ANY KIND.
• TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE OUCHIE APP AND WEBSITE ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND. YOUR USE OF THE OUCHIE APP AND/OR WEBSITE AND ANY TOOLS AND FUNCTIONALITY INCLUDED AS PART OF THE OUCHIE APP AND/OR WEBSITE IS AT YOUR SOLE RISK. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND WITH REGARD TO OUCHIE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS, RESULTS, AND LACK OF NEGLIGENCE.
VII. LIMITATION OF LIABILITY AND REMEDIES
• Exclusion. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OUCHIE BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY (INCLUDING OF GOOD FAITH OR OF REASONABLE CARE), NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO YOUR USE OF OR INABILITY TO USE OUCHIE OR ANY ASSOCIATED PRODUCT OR SERVICE, EVEN IF WE KNOW OF, OR SHOULD HAVE KNOWN OF, THE POSSIBILITY OF SUCH DAMAGES. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE OUCHIE APP OR SITE, OR WITH ANY OF THE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE OUCHIE APP OR WEBSITE AND ITS ASSOCIATED PRODUCTS AND SERVICES. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. TO THE EXTENT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE NOT PERMITTED, THE PARTIES AGREE THAT LIABILITY AND DAMAGES OF UPSIDE HEALTH, INC. IN THE AGGREGATE FOR ALL CAUSES WILL BE LIMITED TO $100.00 U.S.
• Indemnification. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD EACH OF UPSIDE HEALTH, INC., ITS OFFICERS, MANAGERS, DIRECTORS, ADVISORS, ATTORNEYS, CONSULTANTS, EMPLOYEES, AGENTS, EQUITY OWNERS, CREDITORS AND MEMBERS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DEMANDS, EXPENSES, COSTS, DAMAGES PENALTIES, FORFEITURES, SUITS, JUDGMENTS AND THE ASSOCIATED COSTS AND EXPENSES (INCLUDING ATTORNEY’S FEES AND COSTS), WHICH WE MAY HEREAFTER INCUR, BECOME RESPONSIBLE FOR OR PAY OUT ARISING OUT OF YOUR USE OF OUCHIE, YOUR USE OF ANY PRODUCT OR SERVICE OBTAINED THROUGH THE OUCHIE APP AND/OR WEBSITE, YOUR LINKING TO THE OUCHIE APP AND/OR WEBSITE, YOUR BREACH OF ANY TERM OR PROVISION OF THESE TERMS, CONTENT YOU SUBMIT, POST, TRANSMIT, OR MAKE AVAILABLE THROUGH THE SERVICE, YOUR USE OF THE SERVICE, YOUR CONNECTION TO THE SERVICE, YOUR VIOLATION OF THE SERVICE AGREEMENT OR YOUR VIOLATION OF ANY RIGHTS OF ANOTHER INCLUDING BUT NOT LIMITED TO ANOTHER’S COPYRIGHT, PATENT, TRADEMARK, TRADE SECRETS, OR OTHER INTELLECTUAL PROPERTY RIGHT.
Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, this limitation may not apply, in part, to you. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THIS WEB SERVICE, OR WITH ANY OF THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THIS WEB SERVICE.
THE SERVICE IS PROVIDED ON AN “AS-IS”, “AS AVAILABLE” BASIS. OUCHIE, ITS AFFILIATES, AGENTS, AND LICENSORS, CANNOT AND DO NOT WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE INFORMATION AVAILABLE THROUGH THE SERVICE, OR THE SERVICE ITSELF. NEITHER OUCHIE, NOR ANY OF ITS AFFILIATES, AGENTS, OR LICENSORS, SHALL BE LIABLE TO THE SUBSCRIBER OR ANYONE ELSE FOR ANY LOSS OR INJURY CAUSED IN WHOLE OR IN PART BY ITS NEGLIGENCE OR CONTINGENCIES BEYOND ITS CONTROL IN DELIVERING THE SERVICE AND ANY INFORMATION THROUGH THE SERVICE. IN NO EVENT WILL UPSIDE HEALTH, INC., ITS AFFILIATES, AGENTS, OR LICENSORS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY THE YOU IN RELIANCE ON SUCH INFORMATION, OR FOR DIRECT, CONSEQUENTIAL, SPECIAL OR SIMILAR DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE USER AGREES THAT THE LIABILITY OF OUCHIE, ITS AFFILIATES, AGENTS, AND LICENSORS, IF ANY, ARISING OUT OF ANY KIND OF LEGAL CLAIM (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE), IN ANY WAY CONNECTED WITH THE SERVICE OR THE INFORMATION IN THE SERVICE, SHALL NOT EXCEED THE AMOUNT THAT YOU PAID FOR USE OF THE SERVICE
VIII. GENERAL TERMS
• Modification. We reserve the right at any time and in our sole discretion to change the terms, conditions, and notices under which Ouchie is offered, including but not limited to the charges associated with the use of the Ouchie app and/or website. We may revise these Terms at any time by posting changes to the Website or App. Although we may attempt to notify you when major changes are made to these Terms, you should from time to time review the then-current Terms because they are binding on you. You agree that we will not be liable to you or to any third party for any modification, suspension or discontinuance of the Website or App.
• Jurisdiction and Arbitration. The Terms will be governed by and interpreted according to the laws of the State of New York, without regard to conflicts of law principles and the federal laws of the United States of America. All disputes and litigation related in any way to Ouchie shall be submitted to confidential arbitration in New York, New York under the rules of the American Health Lawyers Association, except that claims related to intellectual property rights and confidentiality may be brought to any state or federal court in the State of New York, County of New York, by Ouchie and you consent to exclusive jurisdiction and venue in such courts. Class action arbitration is not permitted. Use of Ouchie is not authorized in any jurisdiction that does not give full effect to all provision of these terms and conditions, including without limitation this section.
• Limitation on Claims. Any cause of action you may have with regard to the use of Ouchie must be instituted within six (6) months after the claim or cause of action arises or be forever waived and barred. If any court of competent jurisdiction finds any provision of these Terms to be unenforceable, such provision shall be enforced to the maximum extent permissible, and the remainder of these Terms shall be separately enforced.
• Equitable Relief. You agree that a breach by you of these Terms will cause us irreparable damage, which cannot be readily remedied by money damages. Accordingly, we can obtain an immediate injunction against a breach by you, without posting of bond or showing of damages, in addition to any other remedies available.
• Entire Agreement. The Terms embody the entire agreement regarding your use of Ouchie and supersedes all prior oral or written agreements and understandings. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in these Terms will affect, or be used to interpret, change or restrict the express provisions of these Terms.
• Deactivate. Ouchie reserves the right to deactivate any Username/Password combination that is used in breach of this Agreement.
• Monitoring and Enforcement. While Upside Health, Inc. has the right to monitor activity and content associated with the Service, we are not obligated to do so. And since we do not, and may not have the ability to, control or actively monitor content, we do not guarantee its accuracy, integrity or quality. Because community standards vary and individuals sometimes choose not to comply with our policies and practices, in the process of using the Service, you may be exposed to content that you find offensive or objectionable. You can contact us to let us know of content that you find objectionable. We may investigate the complaints and violations of our policies that come to our attention and may take any action that we believe is appropriate, including, but not limited to issuing warnings, removing the content or terminating accounts. However, because situations and interpretations vary, we also reserve the right not to take any action. Under no circumstances will we be liable in any way for any content, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any content on the website. You understand that Ouchie is not a monitoring service of any kind.
• Local Laws. As a consequence of the global nature of the Internet, you agree to comply with all local rules and laws regarding user conduct on the Internet and acceptable content. Specifically, you agree to comply with all applicable laws regarding obscene and indecent content and communications and those regarding the transmission of technical data exported from the United States or the country in which you reside.
• No Waiver. The failure of Upside Health, Inc. to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. Any waiver of any provision of the Terms of Service will be effective only if in writing and signed by Upside Health, Inc.
• Severability. If there is a determination that any provision of these Terms of Service is invalid or unenforceable, that determination will not affect the rest of the Terms of Service and the Terms of Service shall be deemed amended to the minimum extent necessary to make them valid and enforceable.
• Address. Official correspondence must be sent via postal mail to:
Upside Health, Inc. c/o Jennifer Kirschenbaum, Esq.
Kirschenbaum & Kirschenbaum, P.C.
200 Garden City Plaza, Suite 315
Garden City, New York 11530
(516) 747-6700 x.302
Electronic Notice. You understand and agree that this Service Agreement and any notices given pursuant to this Service Agreement are enforceable in electronic format.
There may be other information regarding the Service that the law requires us to send you. You consent to Upside Health sending you this information in electronic form. You have the right to withdraw this consent by notice to us, but if you do, you must stop using this Service. We may provide required information to you by email at the your registered address or by access to Ouchie.com or another website designated in an email notice or generally designated in advance for this purpose. Notices provided to you via email will be deemed given and received on the transmission date.