These Terms of Use (this “Agreement”) is a legal agreement between you (“you” or “your”) and Delfina Care Inc. (“Company,” “we,” “our” or “us”) for use of www.delfina.com (the “Site”) and the Delfina mobile application, “Delfina” (the “App”), the Delfina Care software (the “Software”), and the blood pressure cuffs, glucometers, and weigh scales (the “Devices”) (collectively the “Platform”), and all related non-clinical support services, features, and content offered by the Company through the Platform (the “Services”). Company and you may each be referred to as a “Party” or collectively referred to as the “Parties”.
PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST COMPANY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
Please read this Agreement very carefully before accessing or using our Platform or Services. By using and continuing to use our Platform and Services, you acknowledge you have read, understand, and agree to be bound by the Agreement, including those additional terms, conditions and policies referenced herein, or available by hyperlink. Please print a copy of this Agreement for your records. If you do not agree to all the terms and conditions of this Agreement, then you may not access or use the Platform or the Services. If this Agreement is considered an offer, acceptance is expressly limited to this Agreement.
Please refer to our Privacy Policy for information about how we collect, use, store, and disclose your personal information (“Privacy Policy”). You agree that information provided by you in connection with the Platform and the Services shall be governed by the Privacy Policy, which is hereby incorporated and made part of this Agreement. You also agree that information provided by you in connection with the Platform and the Services may also be governed by the applicable Medical Group (defined below) Notice of Privacy Practices, and is hereby incorporated and made part of this Agreement.
The Platform and the Services provide you with access to general health information and the ability to manage and track your medical notes and health data. More specifically, the Platform utilizes a patient’s data (demographic, physical, mental, and clinical health data) uploaded to the Platform by the patient or a medical professional to create a personalized pregnancy plan, including educational materials and articles. In connection with such patient data input, the Platform will also track patient provided weight, mood, and blood pressure and flag the patient when a data input is out of expected ranges. From time to time, Company may upgrade, change, enhance, or modify portions of the Platform, including, but not limited to, the App, Devices, or Software in its sole discretion (“Enhancements”). Such Enhancements or new releases of any aspect of the Platform may be designated by Company as “Beta Software.” Such Beta Software will not be ready for use in a production environment. At this early stage of development, operation of the Beta Software may be unpredictable and lead to erroneous results. The Company shall initially offer the Platform as Beta Software, until such time as the Company deems the Platform suitable for commercial use. You acknowledge and agree that: (i) the Beta Software is experimental and has not been fully tested; (ii) the Beta Software may not meet your requirements; (iii) the use or operation of the Beta Software may not be uninterrupted or error free; (iv) your use of the Beta Software is for purposes of evaluating and testing the product and providing feedback to Company; (v) if you are a Provider, as described in Section 13, you shall inform your employees, staff members, and other users regarding the nature of the Beta Software; and (vi) you will hold all information relating to the Beta Software and your use of the Beta Software, including any performance measurements and other data relating to the Beta Software, in strict confidence and shall not disclose such information to any unauthorized third parties. Your use of the Beta Software shall be subject to all of the terms and conditions set forth herein relating to the Platform. You shall promptly report any errors, defects, or other deficiencies in the Beta Software to Company. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, ALL BETA SOFTWARE IS PROVIDED “AS-IS” AND “AS-AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND. You hereby waive any and all claims, now known or later discovered, that you may have against Company and its suppliers or licensors arising out of your use of the Beta Software.
Company is not a medical group and does not provide medical advice, care, or treatment. Company provides administrative and management services to independent, physician-owned and operated, medical practices. Any telemedicine consults and treatment obtained through our Platform are provided by independently owned and operated medical practices, such as Delfina Medical Group, P.A., Mary Parman, D.O., P.C., or your healthcare provider who utilizes our Platform (collectively the “Medical Group”). Company provides the Platform and Services, information, materials, and data (collectively, “Information”) contained therein for informational and educational purposes only. We do not warrant or represent the accuracy, completeness, currency, or suitability of any Information made available through the Platform or the Services. Company does not provide any medical advice on the Platform or through the Services, and the Information should not be so construed or used. USING, ACCESSING, OR BROWSING THE PLATFORM OR PROVIDING PERSONAL OR MEDICAL INFORMATION TO COMPANY, EITHER THROUGH THE PLATFORM OR THE SERVICES, DOES NOT CREATE A PHYSICIAN-PATIENT, PROFESSIONAL-CLIENT, OR SIMILAR RELATIONSHIP BETWEEN YOU AND COMPANY. NOTHING CONTAINED IN THE PLATFORM IS INTENDED TO CREATE A PHYSICIAN-PATIENT, PROFESSIONAL-CLIENT, OR SIMILAR RELATIONSHIP TO REPLACE THE SERVICES OF A LICENSED, TRAINED PHYSICIAN OR HEALTH PROFESSIONAL, OR TO BE A SUBSTITUTE FOR MEDICAL ADVICE OF A PHYSICIAN OR TRAINED HEALTH PROFESSIONAL LICENSED IN YOUR STATE. YOU SHOULD NOT RELY ON ANYTHING CONTAINED IN THE PLATFORM OR LEARNED THROUGH THE SERVICES, AND YOU SHOULD CONSULT A PHYSICIAN LICENSED IN YOUR STATE IN ALL MATTERS RELATING TO YOUR HEALTH. You hereby agree that you shall not make any health or medical related decision based in whole or in part on anything contained in the Platform or learned through the Services. You are solely responsible for the use of any Information available through this Platform or the Services. COMPANY IS NOT A LICENSED MEDICAL CARE PROVIDER AND THE PLATFORM AND THE SERVICES ARE NOT INTENDED TO REPLACE PROFESSIONAL MEDICAL ADVICE OR DIAGNOSE, TREAT OR MANAGE ANY ILLNESS OR MEDICAL CONDITION, OR SERVE AS A BIRTH CONTROL METHOD OR CONTRACEPTION. PLEASE CONSULT WITH A LICENSED PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROVIDER BEFORE MAKING ANY DECISIONS OR TAKING ANY ACTIONS THAT MAY AFFECT YOUR HEALTH AND SAFETY OR THAT OF YOUR FAMILY OR FETUS. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ OR LEARNED IN CONNECTION WITH THE PLATFORM OR SERVICES. ALWAYS CONSULT WITH YOUR HEALTHCARE PROFESSIONAL IF YOU HAVE ANY QUESTIONS OR CONCERNS ABOUT YOUR HEALTH OR CONDITION OR EXPERIENCE ANY CHANGES IN YOUR CONDITION OR HEALTH STATUS. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911 (OR OTHER APPLICABLE EMERGENCY PHONE NUMBER) OR GO TO THE NEAREST OPEN EMERGENCY ROOM IMMEDIATELY.
YOU EXPRESSLY AGREE THAT THE USE OF, OR INABILITY TO USE, THE PLATFORM OR THE SERVICES IS AT YOUR SOLE RISK. THE CONTENT AVAILABLE THROUGH THE PLATFORM AND THE SERVICES IS FOR INFORMATIONAL, PERSONAL, AND EDUCATIONAL PURPOSES ONLY AND IS NOT A SUBSTITUTE FOR THE PROFESSIONAL JUDGMENT OF A QUALIFIED HEALTHCARE PROFESSIONAL. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ OR LEARNED IN CONNECTION WITH THE PLATFORM AND SERVICES. ALWAYS CONSULT WITH YOUR HEALTHCARE PROFESSIONAL IF YOU HAVE ANY QUESTIONS OR CONCERNS ABOUT YOUR HEALTH OR CONDITION OR EXPERIENCE ANY CHANGES IN YOUR CONDITION OR HEALTH STATUS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, COMPANY AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS DISCLAIM ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. THE PLATFORM AND THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE EXTENT PERMITTED BY APPLICABLE LAW, COMPANY AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE PLATFORM AND SERVICES, OR THE CONTENT OF ANY THIRD-PARTY WEBSITES OR SERVICES LINKED TO OR INTEGRATED WITH OUR PLATFORM. WE DO NOT REPRESENT OR WARRANT THAT (1) YOUR USE OF OUR PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (2) ANY ERRORS IN THE PLATFORM WILL BE CORRECTED, (3) THE QUALITY OF THE PLATFORM AND SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU WILL MEET YOUR EXPECTATIONS, (4) THE PLATFORM WILL BE FREE OF ANY WORMS OR VIRUSES OR ANY CODE OF A MALICIOUS AND/ OR DESTRUCTIVE NATURE, (5) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM AND THE SERVICES WILL BE ACCURATE OR RELIABLE, (6) YOUR USE OF THE PLATFORM AND SERVICES WILL RESULT IN ANY HEALTH RELATED IMPROVEMENTS OR OUTCOMES, (7) A LICENSED, TRAINED PHYSICIAN OR HEALTH PROFESSIONAL HAS READ, RECEIVED, OR REVIEWED ANY CONTENT THAT MAY BE PROVIDED TO YOU THROUGH THE PLATFORM OR SERVICES, (8) ANY SPECIFIC TEST, PROCEDURES, OPINIONS, OR OTHER INFORMATION THAT MAY APPEAR THROUGH THE PLATFORM OR SERVICES, OR ANY PARTICULAR DRUG OR TREATMENT SUGGESTED IN THE CONTENT IS SAFE, APPROPRIATE, OR EFFECTIVE FOR YOU, (9) COMPANY IS A LICENSED MEDICAL CARE PROVIDER, OR (10) THE PLATFORM AND THE SERVICES ARE INTENDED TO REPLACE PROFESSIONAL MEDICAL ADVISE OR TO DIAGNOSE, TREAT, OR MANAGE ANY ILLNESS OR MEDICIAL CONDITION, SERVE AS A BIRTH CONTROL METHOD OR CONTRACEPTION. YOU (AND NOT COMPANY) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. COMPANY AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (2) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE PLATFORM OR CONSUMPTION OF ANY CONTENT; (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY INFORMATION, PERSONAL INFORMATION, OR USER DATA; (4) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE PLATFORM; (5) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE PLATFORM; (6) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THE PLATFORM OR SERVICES; OR (7) LOSS OR DAMAGED CAUSED BY ANOTHER USER’S VIOLATION OF THIS AGREEMENT. COMPANY DOES NOT ENDORSE OR MAKE ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES WITH RESPECT TO THE DEVICES AND ANY WARRANTIES, IMPLIED OR EXPRESS, ARE PURPOSEFULLY AND ENTIRELY DISCLAIMED. YOU ARE RESPONSIBLE FOR COMPLYING WITH ALL TERMS AND CONDITIONS, DISCLAIMERS, WARNING NOTICES, AND OTHER DOCUMENTATION AND INSTRUCTIONS PROVIDED WITH DEVICES OR ISSUED BY DEVICE MANUFACTURERS. YOU ACKNOWLEDGE THAT COMPANY IS SERVING AS A RESELLER OF THE DEVICES AND THE TERMS OF SUCH PURCHASE, AND ANY REMEDIES FOR ANY ISSUES RELATING THERETO, SHALL BE SUBJECT TO DEVICE AVAILABILITY AND SEPARATE TERMS, CONDITIONS, AND WARRANTIES, IF ANY, ISSUED BY THE DEVICE MANUFACTURER.
4.1. Account Registration. You are required to create an account in order to use the Platform (“Account”), which can be done by completing the registration process in the Platform. You agree that all information provided by you is accurate, full, complete, and up to date at all times. Any registration is solely for you and you may only use one single Account. You may not use the Accounts of others, or allow others to use your Account, and you are solely responsible for preventing such unauthorized use of your Account. 4.2. Consent to Receive Electronic Communications. By creating an Account, you consent to receive electronic communications from Company (e.g., via email or SMS messages). These communications may include notices about your Account (e.g., password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. We may also send you promotional communications via email and SMS messages, including, but not limited to, newsletters, special offers, surveys, and other news and information we think will be of interest to you. You may opt out of receiving these promotional communications at any time by following the unsubscribe instructions provided therein. Company is committed to being compliant with the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM Act”) and the Telephone Consumer Protection Act (“TCPA”). In the event you receive an e-mail or text message from us which you do not believe is fully compliant with the CAN-SPAM Act or the TCPA, please contact us. 4.3. Account Security. You acknowledge that you shall be held solely responsible and solely liable for anything that occurs in your Account and any activity resulting from your Account. You agree that we rely on the user ID and password protection format to confirm whether users accessing and using our Platform are authorized to do so. You are responsible for taking all reasonable steps to ensure that no unauthorized person shall have access to your Account. It is your sole responsibility to (i) control the dissemination and use of user ID and password, and (ii) authorize, monitor, and control access to and use of your Account and password. You shall notify us immediately if you suspect or become aware that your Account is being used without authorization or of any other breach of security. We strongly recommend having a complex password, which should be kept secure at all times. You are also encouraged to change your password regularly. If you wish to cancel and remove your Account, please send us an e-mail of your request to support@delfina.com. Your Account will terminate within reasonable time following your request, and from that date of termination you will no longer be able to access your Account. 4.4. User is Responsible for Equipment to Connect to the Platform. With the exception of the Devices, you must provide all equipment necessary to connect to and access the Platform and Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Platform and Services. 4.5. Errors, Inaccuracies and Omissions. Occasionally there may be information on the Platform that contains typographical errors, inaccuracies, or omissions that may relate to the Platform’s descriptions, information, materials, pricing, promotions, and offers. We reserve the right, without prior notice, to (i) correct any errors, inaccuracies, or omissions, and (ii) change or update information or cancel orders, if any information in the Platform or on any related website is inaccurate at any time (including after you have submitted an order). We undertake no obligation to update, amend, or clarify information in the Platform or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Platform or on any related website, should be taken to indicate that all information in the Platform or on any related website has been modified or updated.
When creating an Account and using the Platform and Services, you will be asked to provide certain personal information which may include personal health information. By providing such personal information, you agree to the terms of our Privacy Policy and expressly consent to Company’s collection, storage, use, and disclosure of your personal information in accordance with the Privacy Policy. You grant Company and all other persons or entities involved in the operation of the Platform and the Services the right to transmit, monitor, retrieve, store, and use your information in connection with the operation of the Platform and Services. Company cannot and does not assume any responsibility or liability for any information you submit, or your or third parties’ use or misuse of information transmitted or received using the Platform. We may derive and compile, either manually or automatically, anonymized and aggregated data related to the performance, operation, and use of the Platform and Services (“Statistical Information”) including by you, and use such Statistical Information for our business purposes, including for operations management, for research and development, and for sharing with relevant parties. We own the rights in and to such Statistical Information.
6.1. License Grant. Subject to your compliance with this Agreement, during the term of this Agreement Company grants you a limited worldwide, revocable, non-exclusive, non-transferable, non-sublicensable license to download and install a copy of the Platform on a mobile device or computer that you own or control and to run such copy of the Platform solely for your own personal non-commercial purposes. Company reserves all rights in and to the Platform and Services not expressly granted to you under this Agreement. 6.2. Use Restrictions. There is certain conduct which is strictly prohibited when using the Platform and Services. Except as expressly permitted in this Agreement, you (i) may not make available or use the Platform or Services for the benefit of any third party, including, but not limited to, as a service bureau; (ii) may not sell, resell, license, sublicense, transfer, distribute, make available, rent or lease the Platform, or exploit the Platform or Services for any commercial purposes; (iii) may not use the Platform to store or transmit any illegal, immoral, unlawful, and/or unauthorized materials or interfere with or violate a third party’s rights to privacy and other rights, or harvest or collect personally identifiable information about third parties without their express consent; (iv) may not use the Platform to transmit or otherwise make available any malicious code, including any virus, worm, trojan horse, time bomb, web bug, spyware, or any other computer code, file, or program; (v) may not interfere with or disrupt the integrity, performance, or operation of the Platform or any part thereof; (vi) may not attempt to gain unauthorized access or bypass any measures imposed to prevent or restrict access to the Platform; (vii) may not use or take any direct or indirect action that imposes or circumvents any usage limits; (viii) may not copy (except for making a reasonable number of copies for backup or archival purposes), modify, distribute, create derivative works, translate, port, reverse engineer, decompile, or disassemble any portion of the Platform, or any material that is subject to our proprietary rights or use any of the foregoing to create any software or service similar to the Platform; (ix) may not use any information or materials of any user or other third party appearing on or through the Platform, without our prior written consent; or (x) may not misrepresent or impersonate any person or provide inaccurate Account information. Any breach of this Agreement by you, as shall be determined in our sole discretion, may result in the immediate suspension or termination of your Account.
7.1. Intellectual Property Ownership. (i) All content on the Platform and Services (including, for example, text, designs, graphics, logos, icons, images, audio clips, downloads, interfaces, Information, code and software, and the selection and manner of compilation and presentation) (collectively, the “Content”), is owned by Company, our content providers, or our licensors (as applicable), and may be protected by copyright, trademark, and other applicable laws. Company, our content providers, or our licensors (as applicable) retain full and complete title to and reserve all rights in the Content on the Platform and Services, including all associated intellectual property rights. Company neither warrants nor represents that your use of Content on the Platform will not infringe rights of third parties. (ii) You may access the Platform and Services only for your permitted use under this Agreement, and you may not modify or delete any copyright, trademark, or other proprietary notice relating to any Content you access. Your access to and use of the Platform and Services does not grant you any license or right to use any trademark, logo, or service mark displayed on the Platform or through the Services. You agree not to display or use in any manner the Company marks without Company's advance written permission. (iii) All software used in connection with the Platform and the Services is the property of Company or our licensors and protected by United States and international copyright laws, and subject to separate license terms, in which case those license terms will govern such software. You agree not to reproduce, duplicate, copy, sell, resell, or exploit any portion of the Platform or Services, use of the Platform or Services, access to the Platform or Services, or any contact on the Platform through which the Platform and Services are provided, without express written permission by us. (iv) All rights not expressly granted herein are reserved by Company, our affiliates, and licensors. You agree to abide by all additional restrictions displayed on the Platform and Services, and as they may be updated from time to time. 7.2. Feedback. By sending us any feedback, comments, questions, ideas, proposals, or suggestions concerning Company, the Platform, or the Services whether online, by email, by postal mail, or otherwise (collectively, “Feedback”), you represent and warrant (i) that you have the right to disclose the Feedback, (ii) that the Feedback does not violate the rights of any other person or entity, including, but not limited to, intellectual property rights, such as infringing a copyright, trademark, or patent; violating a right of privacy, attribution or withdrawal; or otherwise misappropriating a trade secret, and (iii) that your Feedback does not contain the confidential or proprietary information of any third party or parties. By sending us any Feedback, you further (a) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (b) acknowledge that we may have something similar to the Feedback already under consideration or in development, and (c) grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license, under all intellectual property rights, to use, make, have made, incorporate into the Platform or Services, modify, copy, display, perform, distribute, prepare derivative works, publish, distribute, and sublicense the Feedback, without any credit or compensation to you. This Feedback section shall survive any termination of your Account or any aspect of the Platform or Services.
Certain information, content, and services available via the Platform and Services may include materials from third-parties or provide you with access to third-party tools, and resources over which we neither monitor nor have any control nor input. Further, third-party links on the Platform may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy of any third-party materials or websites, or for any other materials, products, or services of third parties. The views expressed in third-party materials, websites, resources, products, or services are those of such third-party, and do not necessarily reflect our views. You acknowledge and agree that we provide access to such materials, websites, tools, and resources “as is” and “as available” without any warranties, representations, or conditions of any kind and without any endorsement. We do not warrant and will not have any liability or responsibility arising from or relating to third-party materials, websites, tools, products, and resources. Any use by you of third-party materials, tools, products, services, and resources offered through the Platform or Services is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which such items are provided by the relevant third-party provider(s). We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. You may not use third-party content without that third-party’s permission, or as otherwise allowed by law. Complaints, claims, concerns, or questions regarding third-party products or services should be directed to the applicable third-party.
If you wish to terminate this Agreement you may do so at any time for any reason or without reason by ceasing use and deleting your Account. Deleting your Account can only be done by sending an email directly at support@delfina.com with a specific request which will require us to authenticate the request. Thereafter you shall not be able to use the Platform or Services until you renew your registration to the Platform. Cancelling your Account may cause the loss of certain information you provided us and/or the capacity of your Account. We do not accept any liability for such loss. Termination of your Account shall not relieve you of your obligations to pay amounts accrued or owing, nor affect any legal rights or obligations which may have arisen under the Agreement prior to or at the date of termination. We may terminate, limit, or suspend your access to all or any part of your Account at any time, with or without cause, or with or without notice, effective immediately, and such termination may result in the destruction of all information and data associated with your use of the Platform and Services, in accordance with applicable law. Upon termination of your Account: (i) all rights granted to you hereunder will automatically terminate, and (ii) you must immediately cease all use of the Platform or the Services.
10.1. Indemnification. You agree to indemnify, defend, and hold Company and its subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns, and employees, harmless from and against any and all losses, claims, damages, judgments, demands, actions, proceedings, investigations (whether formal or informal), or expenses (including reasonable attorneys’ fees), or threats thereof, due to, arising out of or relating to (i) your breach of this Agreement or the documents incorporated herein by reference or hyperlink, (ii) your violation of (a) any law or regulation, or (b) the rights of a third-party, or (iii) your use of the Platform or the Services. 10.2. Indemnification Procedures. In the event of such a claim, suit, or action, we will attempt to provide you notice of the claim, suit, or action at the contact information we have for your Account on file (provided, that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder). Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Company in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, this Agreement, or your access to the Platform or Services, including the use of any benefits through the Platform.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY AND ITS AFFILIATES, OFFICERS, DIRECTORS, AFFILIATES, AGENTS, CONTRACTORS, REPRESENTATIVES, INTERNS, SUPPLIERS, SERVICE PROVIDERS, APP PROVIDERS (AS DEFINED BELOW), OR LICENSORS BE RESPONSIBLE FOR ANY LOSS INCLUDING, WITHOUT LIMITATION, LOST PROFITS, REVENUES, OR FINANCIAL LOSSES, OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM THIS AGREEMENT, THE PLATFORM, OR THE SERVICES, OR FOR ANY DAMAGES RELATED TO THE LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, LOSS OF GOODWILL OR LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL THE MAXIMUM TOTAL LIABILITY OF COMPANY AND ITS AFFILIATES, FOR ANY CLAIMS ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE ACCESS TO AND USE OF THE PLATFORM OR SERVICES, EXCEED THE LESSER OF (1) $100 OR (2) TO THE TOTAL AMOUNT YOU PAID TO COMPANY IN FEES OVER THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE CLAIM. Some jurisdictions do not allow the exclusion of certain warranties and limitations of liability provided in this Section. If you are in such a jurisdiction, some of the above limitations and disclaimers may not apply to you. To the extent we may not, as a matter of applicable law, disclaim any implied warranty or limit our liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted by applicable law.
12.1. Mandatory Arbitration of Disputes. We will try to work in good faith to resolve any issue you have with the Platform or Services, if you bring that issue to the attention of our customer service department. However, we realize that there may be rare cases where we may not be able to resolve an issue to a customer's satisfaction. We each agree that any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof or the use of the Platform (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Company agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this Agreement, and that you and Company are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement. 12.2. Exceptions. As limited exceptions to Section 12.1. above: (a) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our respective intellectual property rights. 12.3. Dispute Resolution. If you desire to assert a claim against Company, and you therefore elect to seek arbitration, you must first send to Company, by certified mail, a written notice of your claim ("Notice"). The Notice to Company should be addressed to: Delfina Care Inc., Attn: LEGAL NOTICE, 2021 Fillmore St., Suite 37, San Francisco, CA 94115 ("Notice Address"). If Company desires to assert a claim against you and therefore elects to seek arbitration, it will send, by certified mail, a written Notice to the most recent address we have on file or otherwise in our records for you. A Notice, whether sent by you or by Company, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If Company and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Company may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by Company or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration from the American Arbitration Association at www.adr.org. If you are required to pay a filing fee, after Company receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for more than US $10,000. 12.4. Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Agreement. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other Party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org. 12.5. Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and each Party shall bear its own costs and expenses of arbitration, including legal fees. 12.6. Injunctive and Declaratory Relief. Except as provided in Section 12.2. above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either Party and may award declaratory or injunctive relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The Parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration. 12.7. Class Action Waiver. YOU AND COMPANY AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the Parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
These supplemental terms (“Supplemental Terms”) apply to Providers (defined below) in addition to the other provisions of this Agreement. In the event of a conflict between these Supplemental Terms and any other terms herein, these Supplemental Terms shall prevail. To be a healthcare provider using the Platform (for purposes of this Section, “Provider” or “you”), you must be a licensed physician, nurse practitioner, or healthcare professional contracted or employed by the Medical Group that is contracted with Delfina Care Inc., and must agree to comply with all laws, medical board rules, and other rules and regulations applicable to you as a Provider or otherwise. Your relationship with the Company users (including, but not limited to, your Medical Group patients) is directly between you and the patient. The patient will never have a physician-patient relationship with Company. Company does not practice medicine and offers no medical services. As set forth more fully below, Provider is solely responsible for all agreements, consents, notices, and other interactions with patients and other consumers. Without limiting the generality of the foregoing, Provider is responsible for all billings and collections from patients and other consumers, and Company shall have no liability whatsoever to Provider with respect to any amounts owed by any patient or other consumer to Provider. We do not provide any medical advice, legal advice, or representations in any way regarding any legal or medical issues associated with Provider, goods, or services offered by Provider, including but not limited to any compliance obligations or steps necessary to comply with any state or federal laws and regulations. Provider should seek legal counsel regarding any legal and compliance issues and should not rely on any materials or content associated with the Platform or Services in determining Provider’s compliance obligations under the law. Provider and Company agree that Company is not providing to customers, patients, or anyone else, medical advice or legal advice. THE PLATFORM IS NOT MEANT TO SUBSTITUTE OR MODIFY YOUR PROFESSIONAL JUDGMENT IN ANY WAY. Provider will use the Platform only in accordance with applicable standards of good medical practice. While software products such as the Platform can facilitate and improve the quality of service that Provider can offer patients, many factors, including but not limited to the provider-patient relationship, can affect a patient’s outcome, and with intricate and interdependent technologies and complex decision-making, it is often difficult or impossible to accurately determine what the factors were and in what proportion they affected an outcome. Provider will advise patients, when reasonably necessary, that the medical services provided through or in connection with the Platform may not be a complete or adequate substitute for an in-person assessment by the Provider. Provider shall be solely responsible for its use of the Platform and the provision of medical services to Provider’s patients. In this regard, Provider releases Company and waives any and all potential claims against Company as a result of Provider’s use of the Platform and the provision of medical services to Provider’s patients. As a result of the complexities and uncertainties inherent in the patient care process, Provider agrees to defend, indemnify, and hold Company harmless from any claim by or on behalf of any patient of Provider, or by or on behalf of any other third party or person claiming damage by virtue of a familial or financial relationship with such a patient, which is brought against Company, regardless of the cause if such claim arises for any reason whatsoever, out of Provider’s use or operation of the Platform. To the extent applicable, Provider will obtain Company’s prior written consent to any settlement or judgment in which Provider agrees to any finding of fault of Company or defect in the Platform or Services. Company will promptly notify Provider in writing of any claim subject to this indemnification, promptly provide Provider with the information reasonably required for the defense of the same, and grant to Provider exclusive control over its defense and settlement. If you submit, upload, transmit, or post any consents, notices, advice, recommendations, comments, files, videos, images, or other materials to us or our Platform (“Provider Content”) or provide any Provider Content to patients or other consumers, you agree not to provide any Provider Content that (a) is defamatory, abusive, libelous, unlawful, obscene, threatening, harassing, fraudulent, pornographic, or harmful, or that could encourage criminal or unethical behavior, (b) violates or infringes the privacy, copyright, trademark, trade dress, trade secrets, or intellectual property rights of any person or entity, or (c) contains or transmits a virus or any other harmful component. Provider is solely responsible for obtaining all necessary agreements and consents from, and providing all required notices to, patients and other consumers. You agree not to contact other users through unsolicited e-mails, telephone calls, mailings, or any other method of communication. You represent and warrant to Company that you have the legal right and authorization to upload all Provider Content to the Platform. Company shall have a royalty-free, irrevocable, transferable right, and license to use the Provider Content however Company desires, including without limitation, to copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from or sell or distribute such Provider Content or incorporate such Provider Content into any form, medium, or technology throughout the world. Company is and shall be under no obligation: (i) to maintain any Provider Content in confidence; (ii) to pay to you any compensation for any Provider Content; or (iii) to respond to any Provider Content. Company does not regularly review Provider Content, but does reserve the right (but not the obligation) to monitor and edit or remove any Provider Content submitted to the Platform. You grant Company the right to use the name that you submit in connection with any Provider Content. You agree not to use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of any Provider Content. You are and shall remain solely responsible for the content of any Provider Content you post to the Platform or provide to patients or other consumers. Company and its affiliates take no responsibility and assume no liability for any Provider Content submitted by you or any third party.
14.1. Entire Agreement. This Agreement, our Privacy Policy and any other policies or operating rules posted by us on the Platform or in respect to the Platform constitute the complete and exclusive agreement and understanding between you and us related to the Platform and Services, and supersedes any prior or contemporaneous agreements, communications, and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Agreement). Any ambiguities in the interpretation of this Agreement shall not be construed against the drafting party. 14.2. Changes to the Platform; Changes to the Terms of Use. (i) Changes to the Platform; Automatic Updates. Company may from time to time in its sole discretion develop and provide Platform updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Additionally, Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You further agree that all Updates will be deemed part of the Platform and Services and be subject to all terms and conditions of this Agreement. Based on your mobile device settings, when your mobile device is connected to the internet either: (i) the Platform will automatically download and install all available Updates; or (ii) you may receive notice of or be prompted to download and install available Updates. In such event that your mobile device does not automatically download and install all available Updates, you agree to promptly download and install all Updates and acknowledge and agree that the Platform or portions thereof may not properly operate should you fail to do so. You give us permission to download and install Updates to the Platform on your device. This permission can be revoked at any time by deleting the App from your device. (ii) Changes to the Terms of Use. We reserve the right, at our sole discretion, to update, change, modify, or replace any part of this Agreement by posting updates and changes on the Platform. We may elect to notify you of such changes by mail, email, posting of modified the Agreement, or some other similar manner. However, it is your responsibility to check the Platform regularly for changes to this Agreement. Your continued use of or access of the Platform or Services following the posting of any changes to this Agreement constitutes acceptance of those changes. 14.3. Governing Law. This Agreement and all disputes arising out of or relating to this Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Delaware in the United States, without regard to its conflict of laws principles. If the agreement to arbitrate provision is found to be unenforceable, then (a) the entirety of the arbitration provision shall be null and void, but the remaining provisions of this Agreement shall remain in full force and effect; and (b) exclusive jurisdiction and venue for any claims will be in state or federal courts located in and for Kent County, Delaware. 14.4. Severability. In the event that any provision of this Agreement is determined to be unlawful, void, or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from this Agreement, such determination shall not affect the validity and enforceability of any other remaining provisions. 14.5. Waiver. No delay or omission by us in exercising any rights or remedies thereunder shall impair such right or remedy or be construed as a waiver of any such right or remedy. Any single or partial exercise of a right or remedy by us shall not preclude further exercise or any right or remedy by us. No waiver by us shall be valid unless in writing signed by us. 14.6. Survival. Upon termination, all provisions of this Agreement, which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnification, and limitations of liability. 14.7. Assignment. You may not assign this Agreement to any other party. We may assign this Agreement or delegate any or all of our rights and responsibilities under this Agreement to any third parties, without notice to you. 14.8. Headings. The headings used in the Agreement are included for convenience only and will not limit or otherwise affect this Agreement.
We will not be deemed to be in breach of this Agreement or liable or deemed to have defaulted for any breach of this Agreement or our Privacy Policy, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond our reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, explosion, pandemic, or epidemic; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; and (g) other events beyond the reasonable control of Company. We will do our best to communicate with you and to provide notice within thirty (30) days of the Force Majeure Event, stating the period of time the occurrence is expected to continue. We shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. Company shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
If you are downloading the Platform from a third party app store or distribution platform (like the Apple App Store, Google Play or the Amazon Appstore) where the App is made available (each, an “App Provider”), your use of the Platform and Services may also be governed by usage rules which the App Provider may have established, and which relate to your use of the Platform and Services (“Usage Rules”). In addition to the Usage Rules specified in this Section below, it is your responsibility to determine what other Usages Rules are applicable to your use of the Platform and Services. You undertake to comply with all Usage Rules applicable to your use of the Platform and Services and these are incorporated herein by reference. Where any terms set out under in this Agreement are less restrictive than, or otherwise are in conflict with, applicable terms of the App Providers (including Apple’s usage rules set forth in Apple’s App Store Agreement), the terms of the applicable App Provider will prevail. We acknowledge and you acknowledge and agree that the App Provider(s) (and the App Providers’ subsidiaries) are third party beneficiaries of this Agreement and that, upon your acceptance of this Agreement, they will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereto. If you accessed or downloaded the Platform from the Apple App Store, then you agree to use the Platform and Services only: (1) on an Apple-branded product or device that runs iOS (Apple’s proprietary operating system software); and (2) as permitted by the “Usage Rules” set forth in Apple’s App Store Agreement. Subject to the terms of this Agreement, if you accessed or downloaded the Platform from an App Provider, then you acknowledge and agree that: (i) This Agreement is between you and Company, and not with any App Provider, and that, as between Company and the App Provider, Company, is solely responsible for the Platform. (ii) App Provider has no obligation to furnish any maintenance and support services with respect to the Platform or Services. (iii) In the event of any failure of the Platform or Services to conform to any applicable warranty, you may notify App Provider and App Provider will refund the purchase price for the Platform to you (if applicable) and, to the maximum extent permitted by applicable law, App Provider will have no other warranty obligation whatsoever with respect to the Platform or Services. Any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure of the Platform or Services to conform to any warranty will be the sole responsibility of Company to the extent set forth in this Agreement. (iv) App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the Platform or your possession and use of the Platform or Services, including, but not limited to: (a) product liability claims; (b) any claim that the Platform or Services fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. (v) In the event of any third-party claim that the Platform or your possession and use of the Platform or the Services infringes a third party’s intellectual property rights, to the extent required by this Agreement, Company will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim. (vi) You must also comply with all applicable third-party agreements when using the Platform or Services. (vii) You agree to comply with all applicable U.S. and foreign export laws and regulations to ensure that neither the Platform nor any technical data related thereto, nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the Platform you represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties, including without limitation, the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List.
Comments, questions, and concerns about the Agreement should be sent to us at support+terms@delfina.com or call at (617) 575-9166.
