Terms of Service
Last Updated: July 6, 2020
What We Do
Zencare offers an online platform to allow therapists, psychiatrists, other mental health professionals, nutritional therapists, and social workers (each, a “Therapist”) and the public at large (each, a “User”) to connect with each other (the “Services”) through our website located at https://zencare.co (the “Site”). By accessing or using our Site, you agree to comply with and be legally bound by these Terms, and any amendments thereon as published on the Site at https://zencare.co/terms/, whether or not you become a Therapist or a User of the Services. These Terms govern your access to and use of the Site and Services. If you do not agree to these Terms, you may not continue to use the Site or Services.
NOTICE REGARDING DISPUTE RESOLUTION: THESE TERMS CONTAIN PROVISIONS THAT GOVERN HOW CLAIMS YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING AN OBLIGATION TO ARBITRATE DISPUTES, WHICH WILL, SUBJECT TO LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING ARBITRATION, UNLESS YOU OPT-OUT. UNLESS YOU OPT-OUT OF ARBITRATION: (A) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS PART OF ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND (B) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
Eligibility to Use the Site and the Services
If you are under the age of 13, you may not use the Services, in compliance with the Children's Online Privacy Protection Act. You must be at least 18 years of age, or the legal age to form a binding contract in your jurisdiction if that age is greater than 18 years of age, to use the Services. If you are between the ages of 13 and the applicable legal age to form a binding contract in your jurisdiction, you can use the Services only in conjunction with, and under the supervision of, your parent or guardian who has agreed to these Terms. If you are the parent or legal guardian of a child under the age of 18, you may use the Services on behalf of such minor child. By using the Services on behalf of a minor child, you represent and warrant that you are the parent or legal guardian of such child. If you do not qualify under these Terms, you must not use the Services.
Any use of the Services is void where prohibited by law, and the right to access the Services is revoked in such jurisdictions.
By using the Services, you represent and warrant that you have the right, authority, and capacity to enter into these Terms and to abide by all of the terms and conditions set forth herein. The Services are administered in the United States and intended for U.S. persons only.
We reserve the right to suspend or terminate any User or Therapist account and your use of the Services in our sole discretion.
Zencare reserves the right, at its sole discretion, to modify these Terms, the Site, or any Services at any time and without prior notice. If we modify these Terms, we will update the “Last Updated Date” at the top of these Terms. You are responsible for regularly reviewing these Terms. By continuing to access or use the Site or Services after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site and Services.
Disclaimer of Medical Liability
THE SERVICES ARE OFFERED FOR INFORMATIONAL, EDUCATIONAL AND SCHEDULING PURPOSES ONLY, AND ARE NOT INTENDED TO BE A SUBSTITUTE FOR MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. ZENCARE DOES NOT OFFER OR GIVE THERAPY OR MEDICAL ADVICE. WE DO NOT PROVIDE THERAPY, MEDICAL OR DIAGNOSTIC SERVICES.
ZENCARE SOLELY OFFERS AN ONLINE PLATFORM OR MARKETPLACE FOR THERAPISTS AND USERS TO MEET ONLINE AND FOR USERS TO OBTAIN INFORMATION TO DETERMINE WHETHER SUCH USER WOULD LIKE TO ENGAGE THE SERVICES OF ANY THERAPIST. ZENCARE DOES NOT HIRE THE THERAPISTS. ZENCARE ASSUMES NO RESPONSIBILITY FOR ANY ACT OR OMISSION OF ANY THERAPIST. ZENCARE’S RESPONSIBILITIES ARE LIMITED TO FACILITATING THE AVAILABILITY OF THE SITE AND SERVICES.
THERAPISTS ARE SOLELY RESPONSIBLE FOR THEIR INTERACTIONS WITH YOU AND ANY AND ALL CLAIMS, INJURIES, ILLNESSES, DAMAGES, LIABILITIES AND COSTS (“CLAIMS”) SUFFERED BY YOU AS A RESULT OF YOUR INTERACTION WITH OR VISIT TO ANY SUCH THERAPIST. YOU AGREE NOT TO IMPOSE OR ATTEMPT TO IMPOSE LIABILITY ON OR SEEK ANY LEGAL REMEDY FROM ZENCARE WITH RESPECT TO ANY AND ALL SUCH CLAIMS. ZENCARE CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY PROFILE. ZENCARE IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL THERAPY SERVICES OBTAINED THROUGH OUR SERVICES. ACCORDINGLY, ANY THERAPY SERVICES OBTAINED BY A USER THROUGH OUR SITE WILL BE MADE AT SUCH USER’S OWN RISK. NOTHING STATED, POSTED, OR AVAILABLE THROUGH THE SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE OR THE PROVISION OF MEDICAL CARE.
The Site is not intended for diagnosis, including information regarding which drugs or treatment may be appropriate for you, and you should disregard any such drug treatment advice if delivered through the Site. You are advised to exercise a high level of care and caution in the use of the Site.
You agree, confirm and acknowledge that you are aware of the fact that the Services do not substitute for a face-to-face session by a licensed qualified professional. You should never rely on or make health or well-being decisions purely on use of this Site. You should never disregard, avoid, or delay in obtaining medical advice from your doctor or other qualified healthcare professional because of information or advice you received through the Site.
Any information presented on the Site by Therapists, advertisers, and other Users is presented for your awareness and may not be appropriate for any particular individual or prediction of effectiveness, outcome or success. If you rely on any Content (as defined below) listed on the Site, you do so solely at your own risk.
If you are thinking about suicide or if you are considering taking actions that may cause harm to you or to others or if you feel that you or any other person may be in any danger or if you have any medical emergency, you must immediately call the emergency service number and notify relevant authorities. This Site provides emergency contact information at the bottom of all pages. You acknowledge, confirm and agree that the Site is not designed for use in instances of serious mental condition diagnosis or drug treatment.
Even though we take steps to verify the information provided to us by the Therapists, we cannot guarantee the authenticity of such information, including medical degrees, licenses, certification, credentials, or background. We do not recommend or endorse any Therapist, nor do we make any representation or warranty with respect to the quality of the services they may provide.
No Doctor/Patient Relationship
NO LICENSED MEDICAL PROFESSIONAL/PATIENT RELATIONSHIP IS CREATED BY USING INFORMATION PROVIDED BY OR THROUGH THE USE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, THE “BOOK A PHONE CONSULTATION,” “COMPLETE APPOINTMENT” FEATURE, “EMAIL/CONTACT THERAPIST” FEATURE, LINKS TO OTHER SITES OR ANY ASSISTANCE WE MAY PROVIDE TO HELP YOU FIND AN APPROPRIATE HEALTH CARE PROVIDER.
Site Access and Profiles
If you are a User, you may engage with the Site without providing Personal Information. However, if you would like to send a message to, or book a phone consultation with, a Therapist on the Site, you may be asked for Personal Information such as your first and last name, email address, phone number, and type of insurance, which will be delivered to the Therapist. By booking a phone consultation or sending a message through Zencare’s form using the message button, you understand that your message will be sent by email, which is not a secure means of communication.
If you are a Therapist, you agree to work with Zencare to create an online profile (each a “Profile”). Therapists will provide Zencare with information such as his or her name, educational background, and professional statement, and a Zencare representative will create a Profile on the Site and update information on the Profile as requested going forward. Profiles will be made publicly available via the Site. A Therapist may not have more than one (1) active Profile and each Therapist agrees to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Each Therapist agrees not to disclose his or her username or password to his or her Profile to any third party and takes sole responsibility for any activities or actions under his or her respective Profile. Therapists should immediately notify us of any unauthorized use of a Profile. Zencare reserves the right, at any time and without prior notice, to remove or disable access to any Profile and terminate a Therapist’s account and access to the Site and the Services for any reason, in its sole discretion.
We have no control over and cannot guarantee the availability of any Therapist at any particular time or guarantee a particular Therapist’s office hours. We will not be liable for cancelled or otherwise unfulfilled appointments or any injury resulting therefrom, or for any other injury resulting from the use of the Services whatsoever. Users are strongly advised to perform their own investigation prior to selecting a Therapist by making confirming telephone calls to the appropriate licensing authorities to verify listed credentials, education, and insurance coverage, and to further verify information about a particular Therapist by confirming with the Therapist’s office, the medical association relative to the Therapist’s specialty and the Therapist’s state medical board. Users hereby acknowledge and agree that notwithstanding the assistance that the Services provided to Users in locating Therapists, the ultimate decision to engage the services of a Therapist remains solely with the User, and each User hereby agrees to assume any risk inherent in utilizing the Services and/or deciding to actually engage, and use the services of, any Therapist listed in our Site.
We will use certain defined terms in this section and throughout these Terms as follows:
- “Therapist Content” means Content that Therapists submit or transmit to, through, or in connection with the Services, such as professional experience, certifications, messages and information that Therapists publicly display in their Profiles.
- “Third Party Content” means Content that originates from parties other than Zencare, Users or Therapists, which is made available in connection with the Services.
- “User Content” means Content that Users submit or transmit to, through, or in connection with the Services, such as recommendations, feedback, messages and information, including Personal Information.
- “Zencare Content” means text, images, graphics, photos, audio, video, location data, information, suggestions, guidance, and all other forms of data, communication, or materials provided by Zencare.
Users and Therapists may have the opportunity to submit User Content and Therapist Content, as applicable, including feedback regarding Users’ experiences with Therapists who are featured on the Site, inquiries concerning possible medical needs, participation in the other interactive and community features of the Services, and updates to Profiles.
It is important that you act responsibly when providing Content to the Site. In providing feedback, please give clear, honest information about your experiences, but do not use inappropriate language, make gratuitous personal criticisms or comments or provide information that others could use to determine your identity.
Therapists are also subject to the following additional terms:
- Zencare restricts participation in the Services to Therapists who hold active medical licenses and all certifications necessary to practice any specialty services offered to Users. If you are a Therapist, you represent and warrant, by your continued use of the Services, that you hold an active medical license and all necessary certifications and will notify us promptly if any of this information changes;
- You represent and warrant that at all times your Therapist Content will be complete and accurate;
- You acknowledge that Zencare does not represent and has no control over Users. Zencare disclaims all warranties in and liability for, and you agree not to hold Zencare liable for, the actions or inactions of Users, including, without limitation, negative feedback, failure to show up at the designated time for appointments, or failure to comply with these Terms;
- You acknowledge that, in providing the Services, Zencare may: (i) update your Profile with information obtained from third party sources in consultation with you; (ii) contact you by phone, email, text, or other media; and (iii) take all other actions necessary to provide the Services and keep any Therapist Content complete and current;
- You agree not to falsely express or imply that such Therapist Content is sponsored or endorsed by Zencare;
- Therapist Content may not be unlawful or promote or encourage illegal activity; and
- You understand and agree that Zencare may (but is not obligated to) review and delete any Therapist Content that in the sole judgment of Zencare violates these Terms or which might be offensive, illegal, or that might violate the rights of, harm, or threaten the safety of others.
As part of the Services, we reserve the right to publish information about such Therapist’s services and any recommendations submitted by any User regarding the use of such Therapist’s services, as well as to remove Therapist Content for any reason. We are not, however, responsible for any failure or delay in removing Therapist Content.
Therapist Content found on the Site is intended for general reference purposes only. Such Therapist Content is both self-reported by the Therapist and/or collected from other data sources that are generally confirmed by the Therapist. Such Therapist Content often changes frequently and may become out of date or inaccurate. We are not involved in any of the services provided by Therapists listed on our Site. We do not recommend or endorse any specific tests offered by Therapists.
These content standards apply to User Content and Therapist Content. User Content and Therapist Content must in their entirety comply with all applicable federal, state, local and international laws and regulations. Additionally, without limiting the foregoing, Content must not:
- Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable;
- Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
- Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person;
- Be likely to deceive any person;
- Promote any illegal activity, or advocate, promote or assist any unlawful act;
- Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person;
- Impersonate any person, or misrepresent your identity or affiliation with any person or organization;
- Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising; or
- Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
If you believe that any Content violates your copyright, please notify us with the claim of copyright infringement and we will respond expeditiously in accordance with the Digital Millennium Copyright Act of 1998 (“DMCA”). It is the policy of Zencare to terminate the Content of repeat infringers. Click here to read our Copyright Policy.
The Services are offered solely for personal use for the purposes described in these Terms. Any and all other uses are prohibited. You agree not to (and not to allow any third party to):
- use manual or automated software, devices, scripts, robots or other means or processes to access, “scrape,” “crawl” or “spider” any web pages, database records or other services contained in the Site, Services or Zencare Content;
- use the Site or Services for any commercial or other purposes that are not expressly permitted by these Terms;
- take any action that imposes or may impose (in Zencare’s sole determination) an unreasonable or a disproportionately large load on the Services or Zencare’s infrastructure;
- interfere with or damage our Site or Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
- systematically retrieve data or other content from our Site or Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
- attempt to probe, scan, or test the vulnerability of any Zencare system or network or breach any security or authentication measures;
- use our Site or Services to transmit, distribute, post or submit any information concerning any other person or entity without their permission;
- copy, store or otherwise access any information contained on the Site or Services for purposes not expressly permitted by these Terms;
- use any portion of the Services or Zencare Content to provide, or incorporate any portion of the Services or Zencare Content into, any product or service provided to a third party;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site or Services;
- modify any Services or Zencare Content or create any derivative product from any of the foregoing;
- register for more than one Profile or register for a Profile on behalf of an individual other than yourself;
- use the Services or Zencare Content for any illegal purpose;
- publicly disseminate information regarding the performance of the Services or Zencare Content or access or use the Services or Zencare Content for competitive analysis or benchmarking purposes; or
- advocate, encourage, or assist any third party in doing any of the foregoing.
Zencare has the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Zencare may access, preserve and disclose any of your information if we are required to do so by law, or if we believe in good faith that it is reasonably necessary to (i) respond to claims asserted against Zencare or to comply with legal process (for example, subpoenas or warrants), (ii) enforce or administer our agreements with Users, such as these Terms, (iii) for fraud prevention, risk assessment, investigation, customer support, product development and de-bugging purposes, or (iv) protect the rights, property or safety of Zencare, its Users, its Therapists, or members of the public. You acknowledge that Zencare has no obligation to monitor your access to or use of the Site or Services or to review any Zencare Content, but has the right to do so for the purpose of operating and improving the Site and Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes), to ensure your compliance with these Terms, to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body, to respond to content that it determines is otherwise objectionable or as set forth in these Terms.
Authorization and Acknowledgment
In connection with using the Services for informational purposes and to locate and schedule appointments with Therapists, you understand that, in Zencare’s sole discretion:
- Zencare may pre-populate the Services with information for Therapists;
- Zencare may select Therapists to be featured on the Services based on pre-existing contractual agreements with the Therapists and such selection is not an endorsement of such Therapists;
- Zencare may charge Therapists a fee in order to be listed on the Site; and
- Zencare will provide the User with a list of Therapists who may be suitable to deliver the health care that the Users are seeking based solely on the information provided to Zencare (such as insurance information, proximity to your geographical location, and additional criteria that Users specify).
EACH USER IS ULTIMATELY RESPONSIBLE FOR CHOOSING HIS OR HER OWN THERAPIST.
Pricing and Payment
The price for engaging the services of a Therapist will be as quoted in the Therapist’s Profile. These prices are provided by the Therapist to Zencare and may be changed at the Therapist’s discretion from time to time. While Zencare will occasionally confirm the accuracy of pricing information with the Therapists, we cannot guarantee the Therapist’s exact pricing at any given time. Zencare charges a subscription fee to all Therapists listed on our Site. This subscription is an annual commitment, and Therapists are responsible for the remainder of the year if they cancel their membership before the full year is up. Therapists who receive additional free months of membership in their first year, for example in cases where Zencare is new to the geography in which they practice, are still responsible for twelve months worth of payment. Zencare is authorized to collect payment on behalf of the Therapists and may serve as a limited payment collection agent of the Therapists. As consideration for providing such service, Zencare reserves the right to retain a portion of the payment as a service change.
The health insurances that a Therapist accepts will be as quoted in the Profiles. This insurance information is provided by the Therapist to Zencare and may be changed at the Therapist’s discretion from time to time. While Zencare will occasionally confirm the accuracy of health insurance information with the Therapists and health insurance company databases, we cannot guarantee the accuracy of which health insurance policies are accepted by a Therapist at any given time.
Zencare name, logo and all related names, logos, product and service names, designs and slogans are trademarks of Zencare or its affiliates or licensors. You may not use such marks without the prior written permission of Zencare. All other names, logos, product and service names, designs and slogans on this Site are the trademarks of their respective owners.
By making Content available on or through the Site or Services, you hereby grant to Zencare a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify (for formatting purposes only), distribute, license, transfer, publicly display, publicly perform, transmit, stream, broadcast, access and otherwise exploit such Content on, through or by means of the Services, including for commercial, advertising and promotional purposes relating to the Services.
Subject to your compliance with these Terms, Zencare grants you a personal, revocable, limited, non-exclusive, non-transferable license to (i) access and view any Zencare Content solely for your personal and non-commercial purposes when you are using the Services; (ii) access and view any Content that belongs to other Users or Therapists to which you are permitted access, solely for your personal and non-commercial purposes when you are using the Services; and (iii) access and use the Services via an industry standard consumer web browser (such as MS Internet Explorer, Firefox, Safari, etc.), solely for the purpose of receiving information and scheduling communications with the Therapists, as permitted herein. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit any Zencare Content or any portion thereof, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Zencare or its licensors, except for the licenses and rights expressly granted in these Terms.
The Zencare Content may be modified from time to time by Zencare in its sole discretion and without notice.
If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Site in breach of the Terms, your right to use the Site will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the Site or any content on the Site is transferred to you, and all rights not expressly granted are reserved by Zencare. Any use of the Site not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark and other laws.
Links to Third Party Websites
The Site and the Services may contain links to third-party websites or resources. You acknowledge and agree that Zencare is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Zencare of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the content, products or services on or available from such websites or resources.
Zencare may suspend or terminate your ability to use all or any element of the Services or may terminate these Terms effective immediately, without any notice or explanation, in its sole discretion. Without limiting the foregoing, Zencare may suspend your access to the Services if we believe you to be in violation of any part of these Terms. After any suspension or termination, you may or may not be granted permission to re-establish a Profile. You agree that Zencare shall not be liable to you for the cancellation of your account or termination of your access to the Site and the Services or for any effects of such termination. You may cancel your account at any time by sending an email to email@example.com. Please note that if your account is cancelled, we do not have an obligation to delete or return to you any Content you have submitted through the Site.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ZENCARE BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS, OR DIRECT DAMAGES, OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE IN ANY WAY CONNECTED WITH (A) THESE TERMS, (B) ANY USE OF THE SITE OR THE SERVICES, (C) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF THE SERVICES), (D) USE OF ANY SERVICES PROVIDED BY A THERAPIST OR THE PERFORMANCE, NON-PERFORMANCE OR CONDUCT OF ANY THERAPIST IN CONNECTION WITH THE SERVICES, OR (E) TERMINATION BY ZENCARE OF YOUR ACCESS TO THE SITE AND THE SERVICES. ZENCARE IS NEITHER AN AGENT OF NOR OTHERWISE ASSOCIATED WITH ANY THERAPIST LISTED IN THE SITE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
IN NO EVENT SHALL OUR TOTAL CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO OR ARISING OUT OF YOUR USE OF THE SITE AND SERVICES, REGARDLESS OF THE FORM OF ACTION, EXCEED $100.
You and Zencare understand and agree that the disclaimers, exclusions and limitations in this Section titled “Limitation of Liability” and in the Section below titled “Disclaimer of Warranties” are essential elements of these Terms and that they represent a reasonable allocation of risk. In particular, you understand that Zencare would be unable to make the Services available to you except on these Terms and hereby agree that these Terms will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
Disclaimer of Warranties
THE SITE AND THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTY OF ANY KIND. ZENCARE EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS OR INDEMNITIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, TIMELINESS, OR COMPLETENESS OF ZENCARE CONTENT OR ANY OTHER DATA OR INFORMATION PROVIDED OR RECEIVED THROUGH THE SERVICES. ZENCARE SHALL NOT BE LIABLE FOR DELAYS OR INTERRUPTIONS OF ANY COMMUNICATION, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF ZENCARE. ZENCARE DOES NOT WARRANT THAT THE SERVICES WILL OPERATE ERROR-FREE, OR THAT THE SERVICES ARE FREE OF COMPUTER VIRUSES, CONTAMINANTS OR OTHER HARMFUL ITEMS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ZENCARE MAKES NO WARRANTIES ABOUT THE INFORMATION SYSTEMS, SOFTWARE AND FUNCTIONS MADE ACCESSIBLE THROUGH THE SERVICES OR ANY OTHER SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ZENCARE OR THROUGH THE SITE OR THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
You agree to defend, indemnify, and hold harmless Zencare and its affiliates and subsidiaries, and their officers, directors, employees and agents from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal fees, arising out of or in any way connected with (a) your access to or use of the Site and the Services; (b) violation by you of these Terms; (s) your Content; and (d) your engagement and use of any services provided by a Therapist, including but not limited to, any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of a your engagement and use of any services provided by a Therapist.
By using the Site and the Services you agree to release, discharge and hold harmless Zencare and its subsidiaries and affiliates from any and all losses, damages, rights, claims, actions of any kind and injury (including death) arising out of or relating to the Site, the Services or any act or omission by any person, including without limitation, any dispute between you and any other person or regarding any Content posted on the Site.
If you are a California resident, you waive California Civil Code §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.” This release includes, without limitation, any claim resulting from delay and the criminal acts of others.
Governing Law and Jurisdiction
All matters relating to the Site and the Services and any dispute or claim arising therefrom or related thereto shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction). Any legal suit, action or proceeding arising out of, or related to, the Site or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the City of New York and County of New York. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD-PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. FURTHER, EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.
Limitation on Time to File Claims
To the extent allowed by applicable law, you agree that you will bring any claim or cause of action arising from or relating to your access or use of the Site and the Services within one (1) year from the date on which such claim or action arose or accrued or such claim or cause of action will be irrevocably waived.
BINDING ARBITRATION AGREEMENT AND CLASS WAIVER DISCLOSURE
Pre-Filing Mediation. In the event of a dispute, prior to initiating arbitration, the party asserting the claim must first send to the other, by overnight courier, a written Notice of Claim (“Notice”). If you are the claimant, the Notice to us must be emailed to firstname.lastname@example.org. If we are the claimant, the Notice must be sent to the address we have on file for you in your account. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. Following receipt of the Notice, each party agrees to negotiate with the other in good faith about the claim. If the claim is not resolved to the satisfaction of the claimant within sixty (60) days after Notice is provided, the claimant may pursue the claim in arbitration or file a claim in small claims court, as appropriate.
Additional Arbitration Provisions:
(a) Settlement Offers: During the arbitration, the amount of any settlement offer made by you or us shall not be disclosed to the arbitrator.
(b) Initiating a Claim: The form required to initiate an arbitration can be printed or downloaded from www.adr.org. Alternatively, you may contact the arbitration administrator by calling 1-800-778-7879 or writing to the American Arbitration Association, 120 Broadway, Floor 21, New York, NY 10271.
(c) Fees for Initiating Arbitration: If you are required to pay a filing fee to initiate arbitration, after We receive notice of the initiation of arbitration, we will promptly reimburse you for your payment of the filing fee at the address provided in the Notice, unless your claim is for greater than US$10,000.
(d) Applicable Rules; Administrator: The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (the “AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879 or writing to the American Arbitration Association, 120 Broadway, Floor 21, New York, NY 10271. The arbitrator is bound by the terms of these Terms. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this Arbitration Agreement.
(e) Location of Hearing: Unless you and we agree otherwise, any arbitration hearings will take place in New York, New York. If your claim is for US$10,000 or less, we agree you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a written decision sufficient to explain the essential findings and conclusions on which the award is based.
(f) Class Waiver: YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate the claims of more than one party, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable as applied to any claim asserted by any individual, then the entirety of the arbitration provision set forth herein shall be null and void.
(g) Injunctive Relief Limitation: The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide the relief warranted by that party’s individual claim.
(h) Small Claims Procedure Alternative: Notwithstanding the foregoing binding arbitration procedure, either party may bring an individual action in small claims court (provided the claim otherwise qualifies for such a program) as an alternative to proceeding with arbitration.
Opt-Out Provision. YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN THIRTY (30) DAYS FROM THE DATE THAT YOU FIRST USE THE SERVICE (OR, FOR CURRENT USERS AND THERAPISTS, THIRTY (30) DAYS FROM THE DATE WHEN THIS PROVISION WAS FIRST POSTED ON THE SITE) BY WRITING TO HELLO@ZENCARE.CO. FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE OPTING OUT AND CONTAINING ENOUGH DETAILS ABOUT YOU FOR US TO BE ABLE TO IDENTIFY YOU WITHIN THIRTY (30) DAYS. IF MORE THAN THIRTY (30) DAYS HAVE PASSED, YOU ARE NOT ELIGIBLE TO OPT OUT OF THIS PROVISION AND YOU MUST PURSUE YOUR CLAIM THROUGH BINDING ARBITRATION AS SET FORTH IN THESE TERMS.
If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and these Terms shall continue in effect.
The failure by Zencare to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision of these Terms will be effective only if in writing and signed by a duly authorized representative of Zencare. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
All information communicated as part of the Service is considered an electronic communication. When you communicate with us through the Site or via other forms of electronic media, such as e-mail, you are communicating with us electronically. You agree that we may communicate electronically with you and that such communications, as well as notices, disclosures, agreements, and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication. You further acknowledge and agree that by clicking on a button labeled “SUBMIT”, “CONTINUE”, “REGISTER”, “I AGREE” or similar links or buttons, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by these Terms. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SERVICE.
Your Comments and Concerns
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