Terms of Service
Last Updated: January 5, 2016
PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
The terms and conditions stated herein (collectively, the “Terms”) constitute a legal agreement between you and Zencare Group Inc., a Delaware corporation (the “Company”). In these Terms, “Zencare”, “we”, “us” or “our” means Zencare Group Inc., and/or “you” or “your” means any user of the Services (defined below).
In order to use the Services you must agree to the terms and conditions that are set out below. By using the Site, you hereby expressly acknowledge and agree to be bound by the Terms, and any future amendments and additions to these Terms as published from time to time at http://zencare.co/terms/.
Zencare reserves the right to modify the terms and conditions of these Terms or any other policy relating to the Services at any time, effective upon posting of an updated version of these Terms on the Site. You are responsible for regularly reviewing these Terms. Continued use of the Service after any such changes shall constitute your consent to such changes.
By accessing or using the Services or clicking “accept” or “agree” to these Terms, you acknowledge that you have read, understand and agree to be bound by these Terms. THESE TERMS CONTAIN, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER.
Disclaimer of Medical Liability
THE SERVICES ARE OFFERED FOR INFORMATIONAL, EDUCATIONAL AND SCHEDULING PURPOSES ONLY, AND IS 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. WE CAREFULLY SCREEN OUR THERAPIST APPLICANTS. HOWEVER, 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 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 THERAPIST ACCOUNT. 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 AN 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 that 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 are not a complete 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. Furthermore, we strongly recommend that you will consider seeking advice by having an in-person appointment with a licensed and qualified professional. Never disregard, avoid, or delay in obtaining medical advice from your doctor or other qualified healthcare professional by face-to-face appointment, because of information or advice you received through the Site.
The services discussed and/or advertised within the Services are not applicable to all individuals or all clinical situations. We make no claims as to the effectiveness of any such services. Any services represented on the Site by Therapists, advertisers, and other Services participants, either paid or unpaid, are presented for your awareness and do not necessarily imply appropriateness for any particular individual or prediction of effectiveness, outcome or success. We do not recommend or endorse any specific tests, Therapists, health care providers, procedures, opinions, or other information that may appear on the Site. If you rely on any Content 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 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 .
Zencare reserves the right, at its sole discretion, to modify the Site Services or to modify these Terms at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of 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.
You must be 18 or over, or the legal age to form a binding contract in your jurisdiction if that age is greater than 18 years of age, to register with us or use the Services. If you are between the ages of 13 and 18 or the applicable legal age 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 under the age of 13, you may not use the Services, in compliance with the Children's Online Privacy Protection Act. 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, do not use the Services. Membership in 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 United States users only; any use outside of the United States is at the Users’ own risk and Users are responsible for compliance with any local laws applicable to their use of the Services.
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 Therapist Accounts;
- “Third Party Content” means Content that originates from parties other than Zencare, Users or Therapists, which is made available in connection with the Services;
- “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 Services, inquiries concerning possible medical needs, participation in the other interactive and community features of the Services, and updates to your Account that appears on the Site. You may submit User Content or Therapist Content, as applicable, by emailing us at firstname.lastname@example.org or through the “Contact” section of the Site.
It is important that you act responsibly when providing User Content or Therapist Content, as applicable. In providing feedback, please give clear, honest information about the Therapist and 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. When participating in other interactive or community aspects of the Services, please do not post any information that another User or Therapist may use to identify you as an individual, but please do include all relevant information in a concise manner to help us provide you with a helpful response.
You acknowledge and agree that all User Content and Therapist Content, as applicable, will be the sole and exclusive property of Zencare and you hereby irrevocably assign to Zencare and agree to irrevocably assign to Zencare all of your rights, titles, and interests in and to all User Content and Therapist Content, as applicable, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At Zencare’s request and expense, you will execute documents and take such further acts as Zencare may reasonably request to assist Zencare to acquire, perfect, and maintain its intellectual property rights and other legal protections in such User Content and/or Therapist Content, as applicable.
If you are a Therapist posting Therapist Content to your Therapist Account, such information about your office, service, or specialty, or other information, you 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 your Therapist Content will be complete and accurate to the best of your knowledge;
- You acknowledge that Zencare does not represent and has no control over Users of the Site and Services. 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 Therapist Account 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;
- Therapist Content may not falsely express or imply that such Therapist Content or material is sponsored or endorsed by Zencare;
- Therapist Content may not be unlawful or promote or encourage illegal activity; and
- You understand and agree that Zencar 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 other Users of the Services.
How the Site and Services Work
As stated above, Zencare makes available an online platform or marketplace for Therapists and Users to meet online and arrange for Users to obtain therapy services from any Therapist listed on our Site. Zencare does not provide therapy or medical services. Zencare’s responsibilities are limited to facilitating the availability of the Site and Services.
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.
While Zencare does research and verify certain documents of the Therapists using the Site, we do not guarantee the verification of medical degrees, qualifications, licensure, certification, credentials, competence or background of any Therapist. Your relationship relating to our Site is strictly with the Therapist. They provide their own license and insurance and state their own expertise in their chosen fields. We are not involved in any way with the actual substance of that relationship or any part of the services provided by any Therapist and we do not validate, and are not involved in, any of the services provided by Therapists listed on our Site.
You are strongly advised to perform your 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 Therapy’s specialty and your state medical board.
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.
In furtherance of (and not in any limitation of) the above, you hereby acknowledge and agree that notwithstanding the assistance that the Services provided to you in locating Therapists, the ultimate decision to engage the services of a Therapist remains yours and yours alone, and you hereby agree 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.
Zencare reserves the right, at any time and without prior notice, to remove or disable access to any Account for any reason, in its sole discretion, that we consider to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site or Services.
As a Therapist, you must create a profile and subscribe to use our Services (“Profile”). If you are a Therapist, you must work with Zencare to create a Profile. You will provide Zencare with information such as your name, educational background, and professional statement, and a Zencare representative will create a Profile for you on the Site and update information on the Profile as requested going forward. Therapist Profiles will be made publicly available via the Site and Services. Users will be able to engage the services of a Therapist via the Site and Services based upon the information provided in a Therapist Profile.
As part of the Services, we reserve the right to publish any Therapist Content in a Therapist Profile, including information about such Therapist’s services and any recommendations submitted by any User regarding the use of such Therapist’s services and to remove such Therapist Content for any reason. We are not, however, responsible for any failure or delay in removing Therapist Content.
If you are a User, you may engage with most of the Site without creating an account. If you would like to book a phone consultation with a Therapist on the Site, you may be asked for information such as your first and last name, email address, and phone number, which will be delivered to the Therapist, and have the option of providing a username and password to create a login account (“User Account”) to make it easier to book appointments going forward. Appointments can be booked without creating a User Account and the creation of a User Account is entirely optional. You can also send messages to therapists using the message button found on each therapist profile (e.g. "Message Dr. Smith"). By using the message button, you understand that your message will be sent by e-mail, which is not a secure means of communication.
We will create your Therapist Account or User Account, as applicable, for your use of the Site based upon the personal information you provide to us. You may not have more than one (1) active Account. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. You are responsible for safeguarding your password. A Therapist or User, as applicable, agrees to not disclose his or her password to any third party and that he or she will take sole responsibility for any activities or actions under his or her Account, whether or not such Therapist or User, as applicable, has authorized such activities or actions. A Therapist or User, as applicable, will immediately notify us of any unauthorized use of his or her Account.
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, AND “CONTACT THERAPIST” FEATURE, LINKS TO OTHER SITES OR ANY ASSISTANCE WE MAY PROVIDE TO HELP YOU FIND AN APPROPRIATE HEALTH CARE PROVIDER.
Authorization and Acknowledgment
In connection with using the Services for informational and educational 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;
- In addition to signing a contract, Therapists may pay a fee to Zencare in order to be listed on the Site;
- Zencare will provide you with a list of Therapists who may be suitable to deliver the health care that you are seeking based solely on the information that you provide to Zencare (such as insurance information, proximity to your geographical location, and additional criteria that you specify); and
- YOU ARE ULTIMATELY RESPONSIBLE FOR CHOOSING YOUR OWN THERAPIST.
The price for engaging the services of a Therapist will be as quoted on the Therapist Profiles. 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. We do not collect any payments from Users through our Site. Users will pay for therapy services directly to Therapists.
The health insurances that a Therapist accepts will be as quoted on the Therapist Profiles. These insurances 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 health insurance information with the Therapists and health insurance company databases, we cannot guarantee the Therapist’s exact health insurance policies at any given time.
The features, information and materials provided and depicted through the Services and on Site are protected by copyright, trademark and other intellectual property laws, and are the sole property of Zencare, except for any legal names and trademarks of Therapists listed in our Site, which belong to such Therapists. All Services Content is provided to Users by Zencare solely to support User’s permitted use of the Services. The Services Content may be modified from time to time by Zencare in its sole discretion and without notice. Except as expressly set forth herein, no license right or interest is granted to Users or Therapists for any other purpose, and any other use of the Services or the Services Content by Users or Therapists shall constitute a material breach of these Terms. Zencare retains all rights in the Services and Zencare Content and any associated trademarks, copyrights, trade secrets or other intellectual property rights.
By making User Content or Therapist Content, as applicable, available on or through 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 User Content or Therapist Content, as applicable, 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 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 User Content or Therapist Content, as applicable, 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 obtaining services from 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 Services 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 Services are offered solely for User’s 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 Services 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 Services Content to provide, or incorporate any portion of the Services or Services 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 Services Content or create any derivative product from any of the foregoing;
- register for more than one Account or register for an Account on behalf of an individual other than yourself;
- use the Services or Services Content for any illegal purpose;
- publicly disseminate information regarding the performance of the Services or Services Content or access or use the Services or Services 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, 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 Services 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.
The Site and 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 your ability to use all or any element of the Services or may terminate these Terms effective immediately, without any notice or explanation. 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 Therapist Account or User Account, as applicable. You agree that Zencare shall not be liable to you for any termination of these Terms or for any effects of any termination of these Terms. You may cancel your Therapist Account or User Account, as applicable, at any time by sending an email to email@example.com. Please note that if your Therapist Account or User Account, as applicable, is cancelled, we do not have an obligation to delete or return to you any User Content or Therapist Content you have submitted through the Site.
Zencare may send you email messages to provide you information regarding our Services. You may report a problem to us regarding any Therapist listed on our Site, but we cannot guarantee that we will contact the Therapist to remedy such problem.
Limitation of Liability
YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS THE CANCELLATION OF YOUR ACCOUNT. 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 SERVICES, REGARDLESS OF THE FORM OF ACTION, EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT OF FEES, IF ANY, THAT YOU PAID TO UTILIZE THE SERVICES OR (B) $100. 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 ANY WAY CONNECTED WITH (A) THESE TERMS, (B) ANY USE OF THE SITE OR SERVICES, (C) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF THE SERVICES), OR (D) YOUR USE OF ANY SERVICES PROVIDED BY A THERAPIST OR THE PERFORMANCE, NON-PERFORMANCE OR CONDUCT OF ANY THERAPIST IN CONNECTION WITH THE SERVICES. IN ADDITION, YOU SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD PARTY DIRECTING YOU TO THE SITE BY REFERRAL, LINK OR ANY OTHER MEANS IS NOT LIABLE TO USER FOR ANY REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE SERVICES OR THE CONTENT. ZENCARE IS NEITHER AN AGENT OF NOR OTHERWISE ASSOCIATED WITH ANY THERAPIST LISTED IN THE SITE.
You and Zencare understand and agree that the disclaimers, exclusions and limitations in this Section titled “Liability Limitations” 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 SERVICES, ALL CONTENT, AND ANY OTHER INFORMATION, AND MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, ARE PROVIDED TO USER ON AN “AS IS” 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 SERVICES CONTENT OR ANY OTHER DATA OR INFORMATION PROVIDED OR RECEIVED THROUGH THE SERVICES. ZENCARE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, THE SITE OR ANY COMMUNICATION, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN 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 OR SOFTWARE ARE FREE OF COMPUTER VIRUSES, CONTAMINANTS OR OTHER HARMFUL ITEMS, OR THAT IT WILL PRESERVE OR MAINTAIN ANY SUCH SERVICES CONTENT WITHOUT LOSS. 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 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 release, defend, indemnify, and hold Zencare and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless 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 or Services, or your violation of these Terms; (b) your User Content or Therapist Content, as applicable; and (c) your engagement and use of any services provided 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.
Electronic Contracting and Notices
Your affirmative act of using and/or registering for the Services constitutes your electronic signature to these Terms and your consent to enter into agreements with us electronically.
These Terms constitute the entire and exclusive understanding and agreement between Zencare and you regarding the Site and Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Zencare and you regarding the Site and Services.
You may not assign or transfer these Terms, by operation of law or otherwise, without Zencare’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Zencare may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Zencare (i) via email (in each case to the address that you provide) or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Controlling Law and Jurisdiction
These Terms will be interpreted in accordance with the laws of the State of New York, without regard to its conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a state court located in New York County, New York or a United States District Court located in New York County, New York for any actions for which the parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction, as set forth in the Dispute Resolution provision below.
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and Zencare or their successors or assigns shall exclusively be settled through binding and confidential arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by these Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and Zencare must abide by the following rules: (a) ANY CLAIMS BROUGHT BY YOU OR ZENCARE MUST BE BROUGHT IN THE PARTY'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Zencare will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (d) Zencare also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (e) the arbitrator shall honor claims of privilege and privacy recognized at law; (f) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (g) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (h) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding the foregoing, either you or Zencare may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in New York County, New York. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in New York County, New York in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within New York County, New York for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of subparts (a) and (b) in this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (a) or (b) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Zencare shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in New York County, New York.
For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
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 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. 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 of 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 such right or provision 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.
If you have any questions about these Terms, please contact Zencare at firstname.lastname@example.org.