The Obria Group, Inc. EULA for Obria Direct App
THIS IS A BINDING LEGAL DOCUMENT. PLEASE READ THIS AGREEMENT CAREFULLY AND PROVIDE YOUR ACCEPTANCE OF IT BY CLICKING ON THE “AGREE” BUTTON AT THE BOTTOM. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT USE THE OBRIA MOBILE APPLICATION. THIS AGREEMENT IS SOLELY BETWEEN YOU AND THE OBRIA FOUNDATION, INC. (“OBRIA”, “we” or “us”). APPLE, INC. (INCLUDING ITS AFFILIATES, “APPLE”) AND GOOGLE INC. (INCLUDING ITS AFFILIATES, “GOOGLE”) ARE NOT RESPONSIBLE FOR ANY OBLIGATIONS UNDER THIS AGREEMENT OR ANY OBLIGATIONS CONCERNING THE OBRIA MOBILE APPLICATION WHATSOEVER. THIS AGREEMENT SETS FORTH THE TERMS UPON WHICH YOU, AS A USER OF THE OBRIA MOBILE APPLICATION, ARE AUTHORIZED TO DOWNLOAD, INSTALL AND USE THE OBRIA MOBILE APPLICATION ON YOUR APPLE iOS OR ANDROID DEVICE.
TERMS AND CONDITIONS OF USE
Welcome to the Obria Direct Mobile Application (the “Mobile App”), the mobile application for Apple iOS and Android devices that allows users to access and receive services from Obria’s licensed healthcare providers (“Obria Medical Clinic Services” and together with software services provided by the Mobile App, the “Services”). Obria Medical Clinic Services are provided by appropriately licensed nurses, who are affiliated with the Obria Medical Clinics. To download, install or use the Mobile App to access and receive Services, you must agree to be bound by all of the terms of this Agreement. By clicking on the “Agree” button at the bottom of this Agreement or by downloading, installing or using the Mobile App, you are agreeing to be bound by all of these terms. Please print and keep a copy of this Agreement. We may, from time to time, change the terms of this Agreement.
THIS AGREEMENT GOVERNS YOUR USE OF THE MOBILE APP TO ACCESS THE SERVICES, AND DOES NOT REPLACE ANY OTHER CONSENTS OR TERMS AND CONDITIONS TO WHICH YOU MUST ALSO AGREE BEFORE RECEIVING OBRIA MEDICAL CLINIC SERVICES.
IF YOU HAVE A MEDICAL EMERGENCY, PLEASE DIAL 911 IMMEDIATELY. DO NOT USE THE SERVICES FOR AN EMERGENCY MEDICAL NEED.
YOUR USE OF THE OBRIA MEDICAL SERVICES DOES NOT REPLACE A FORMAL MEDICAL CONSULTATION WITH A LICENSED MEDICAL DOCTOR. FOR ONGOING MEDICAL CARE, PLEASE SCHEDULE AN APPOINTMENT WITH YOUR REGULAR MEDICAL DOCTOR OR CALL OR USE THE MOBILE APP TO SCHEDULE AN APPOINTMENT WITH ONE OF THE OBRIA MEDICAL CLINICS’ MEDICAL DOCTORS.
LICENSE AND RESTRICTIONS
Subject to the terms and conditions herein and any modifications to these terms in the future for which we provide you notice, we hereby grant to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use the software, content, and documentation on and in the Mobile App, in object code format, only on any iOS or Android device that you own or control to the extent necessary for you to receive Services using the Mobile App. You agree not to sell, rent, lease, transfer, sublicense, provide service bureau or timeshare services, distribute or otherwise make the Mobile App available to third parties for any reason. You further agree not to: (i) modify, translate, copy, reverse engineer, decompile, disassemble, re-engineer, or otherwise create or attempt to create the source code of the Mobile App, or its structural framework, or (ii) modify or create derivative works of the Mobile App or use the Mobile App in whole or in part for any purpose except as expressly provided in this Agreement. You also agree not to allow or permit others, directly or indirectly (including but not limited to the use of wizards, agents, bots, or other utilities) to perform any of the actions prohibited in (i) and (ii) in the immediately preceding sentence.
NOT MEDICAL CARE AND ADVICE
Any information or content appearing within the Mobile App, including any posted questions and answers, are for informational purposes only and do not constitute medical advice or create a physician-patient relationship. Any information or answers to your health questions that our nurses provide are based on general healthcare information and protocols and the relevant information that you provide to them; they are not intended to be medical care or to create an ongoing professional health care relationship. The Obria Medical Clinic Services are not a substitute for a formal consultation with a medical doctor or other qualified health care provider, which we urge you to seek for any of your medical conditions. We do not provide medical opinions or diagnoses regarding your medical condition or any medical treatment or prescriptions that only a medical doctor can provide, through the Mobile App. You should always consult your medical doctor regarding the specifics of your case. Reliance on any information that we provide is solely at your own risk.
The Mobile App and our answers to your health questions may contain health information that you may find to be sexually explicit or otherwise offensive.
We require that you separately provide written consent through the registration process, for any advice or healthcare information provided by our nurses that may qualify as TeleHealth services. Information that you transmit through this Mobile App may become part of your electronic health record with Obria and is subject to Obria’s Notice of Privacy Practices.
THIRD PARTY TERMS OF AGREEMENT
Certain components of the Mobile App may be provided by third parties. Any software, content or services provided by us from a third party (“Third Party Components”) are provided to you hereunder subject to the terms and conditions of the applicable third party, which terms and conditions for such Third Party Components may change from time to time and if not otherwise provided to you are available by request from us. If any such Third Party Components become unavailable to us for any reason, or we deem it appropriate, in its reasonable discretion, then we may remove or replace such Third Party Components.
You must comply with all applicable third party terms of agreement while using the Mobile App, such as the terms of your agreement with your wireless data service provider.
RESERVATION OF RIGHTS
We shall at all times solely and exclusively own all right, title, and interest in and to the Mobile App and the related documentation, materials created or generated by us as well as the specifications, technology and all intellectual property or other rights in the foregoing, including but not limited to any and all modifications and derivative works. No implied licenses are granted.
You agree that you shall use the Mobile App to access the Services only in accordance with the terms of this Agreement and applicable law. You agree to use the Mobile App in a manner consistent with all applicable standards and requirements, local, state, and national laws and regulations, and otherwise in accordance with this Agreement and any rules, policies and procedures established by us for use of the Mobile App. By registering and using the Mobile App, you represent and warrant that all information provided to us in connection with this Agreement, including in the process of registration for the Mobile App, is true, accurate and complete. You are responsible for obtaining and maintaining all equipment and systems necessary to access the Mobile App and for paying all charges related thereto.
To use the Mobile App and Services, you are required to open an account, and you must provide the complete and accurate information requested on the registration form. You will also be asked to provide a user name and password. You are entirely responsible for maintaining the confidentiality of your password. You may not use the account, username, or password of someone else at any time. You agree to notify us immediately on any unauthorized use of your account, user name, or password. We will not be liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge. You may be held liable for any losses incurred by us, or our affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of your account or password. We reserve the right to revoke or deactivate your account at any time.
The Mobile App and Services are maintained in accordance with the security requirements contained in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Security Rule contained at 45 C.F.R. Part 160 and Subparts A and C of Part 164.
You agree not to access or use the Mobile App in an unlawful way or for an unlawful or illegitimate purpose. You shall not post, transmit or store (a) a message or information under a false name; (b) information that is unlawful, libelous, defamatory, obscene, fraudulent, predatory of minors, harassing, threatening or hateful to any person; or (c) information that infringes or violates any of the intellectual property rights of others or the privacy or publicity rights of others. You shall not attempt to disrupt the operation of the Mobile App or Services through use of methods such as viruses, Trojan horses, worms, time bombs, denial of service attacks, flooding or spamming. You shall not use the Mobile App in any manner that could damage, disable or impair our services or networks. You shall not attempt to gain unauthorized access to any user accounts or computer systems or networks, through hacking, password mining or any other means. You shall not use any robot, scraper or other means to access the Mobile App for any purpose.
OPERATION AND RECORD RETENTION
We reserve complete and sole discretion with respect to the operation and use of the Mobile App. We may collect, retain and use records and other data and information relating to your use of the Mobile App, including but not limited to, the history of use. We may also, among other things, withdraw, suspend or discontinue the Mobile App or any functionality or feature of the Mobile App. We are not responsible for maintaining data arising from the use of the Mobile App. We reserve the right to maintain, delete or destroy all communications and materials posted or uploaded through the Mobile App pursuant to any internal record retention and/or destruction policies as such policies may be amended from time to time.
We may suspend or terminate your access to or use of the Mobile App at any time, for any reason or for no reason. We have the right (but not the obligation) to refuse to provide access to the Mobile App to any person, agency or organization, or to prohibit any person, agency or organization from using the Services, at any time, for any reason or for no reason at all, in our sole discretion. We reserve the right to change, suspend, or discontinue all or part of the Mobile App, temporarily or permanently, without prior notice.
VIOLATION OF THIS AGREEMENT
You acknowledge that your access to the Mobile App shall be immediately suspended and this Agreement shall be terminated if you violate any provision of this Agreement. You acknowledge and agree that a violation of this Agreement by you will result in irreparable injury for which monetary damages are an inadequate remedy that will entitle us to obtain, without the posting of any bond or other security, a court order prohibiting you from using the Mobile App and Services.
All of the content available on or through the Mobile App is the property of Obria or its licensors and is protected by copyright, trademark, patent, trade secret and other intellectual property law. We give you permission to display, download, store and print the content only for your personal use. You agree not to reproduce, retransmit, distribute, disseminate, sell, publish, broadcast, or circulate the content received through the Mobile App to anyone. Any copy made of information obtained through the Mobile App must include the copyright notice. All software and accompanying documentation made available for download from the Mobile App is the copyrighted work of Obria or its licensors. All Obria trade and service names, including, but not limited to “OBRIA”, are trademarks of Obria. All other brands and names are the property of their respective owners. Nothing contained in this Agreement or in the Mobile App should be construed as granting any license or right to use any trademark of Obria or its licensors or suppliers without the express written permission of Obria or such third-party that may own the trademark.
The Mobile App was created to assist women between the ages of 15-25 who have questions or concerns regarding an unplanned pregnancy or sexually transmitted disease. We do not direct any of our content specifically at children under 13 years of age. We understand and are committed to respecting the sensitive nature of children’s privacy online. If we learn or have reason to suspect that a user of the Mobile App is under age 13, we will promptly delete any personal information in that user’s account.
When you open an account through the Mobile App, we will collect your first name, last name, date of birth, sex, email address, phone number and zip code. If you use the Mobile App to connect with an Obria healthcare provider and you share any information regarding your medical condition or history with that healthcare provider, the medical information may be preserved in an electronic health record, subject to our Notice of Privacy Practices.
We will not share your personal information with any third parties without your consent, except (i) as necessary to provide you with the Services you have requested through the Mobile App, (ii) with respect to your electronic health records, with our affiliated healthcare clinics or (iii) to comply with the law. Our maintenance of your personal health information will be in accordance with federal and state privacy and security laws and our Notice of Privacy Practices.
We may use your personal information to send you reminders about health-related matters. We may use your personal information to verify your identity, to check your qualifications, or to follow up with transactions initiated through the Mobile App. We may also use your contact information to inform you of any changes to the Mobile App, or to send you additional information about us. If you allow us to track your location through your mobile device, we may use this information to inform you of the nearest medical clinic affiliated with Obria.
We may disclose personal information if required to do so by law or in the good-faith belief that such action is necessary to (i) conform to the edicts of the law or comply with legal process served on us or our affiliates, (ii) protect and defend our rights or property or the rights or property of the users of the Mobile App, or (iii) act under exigent circumstances to protect the safety of the public or users of the Mobile App.
In order to accommodate changes in our business, we may sell portions of our company or buy other companies or assets, including, without limitation, the information collected through the Mobile App. If we or substantially all of our assets are acquired, customer information will be one of the assets transferred to the acquirer.
Areas accessed using the Mobile App may contain links to other web sites. Please note that when you click on any of these links, you are entering another web site for which we have no responsibility or control. The inclusion of any link does not imply affiliation, endorsement or adoption by us of the linked site or any medical or other information contained therein. We encourage you to read the terms and conditions, data-gathering practice and privacy policies of all linked sites as they may materially differ from ours. You agree that we shall not be responsible for any loss or damage of any sort incurred as a result of any such links or as the result of the presence of such links on this site. It is up to you to take precautions to ensure that whatever linked material you select is free of items such as viruses, worms, Trojan horses and other destructive items.
ACCESS TO THE MOBILE APP AND THE INFORMATION CONTAINED VIA THE MOBILE APP IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, OBRIA DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT ACCESS TO THE MOBILE APP WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED; NOR DO WE MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE ADEQUACY, ACCURACY, RELIABILITY, TIMELINESS, CURRENCY, QUALITY, COMPLETENESS, USEFULNESS, PERFORMANCE, SECURITY, LEGALITY OR SUITABILITY OF THE MOBILE APP OR ANY OF THE INFORMATION, RESOURCES, PRODUCTS OR SERVICES PROVIDED BY OR THROUGH THE MOBILE APP. NO ADVICE OR OTHER REPRESENTATIONS BY OBRIA OR ITS AGENTS SHALL CREATE ANY WARRANTY. YOU EXPRESSLY AGREE THAT YOUR USE OF THE MOBILE APP AND YOUR RELIANCE UPON ANY OF THE CONTENTS ACCESSED IS AT YOUR SOLE RISK.
YOU SHALL BE SOLELY AND FULLY RESPONSIBLE FOR ANY DAMAGE TO THE MOBILE APP OR ANY COMPUTER SYSTEM, ANY LOSS OF DATA, OR ANY IMPROPER USE OR DISCLOSURE OF INFORMATION VIA THE MOBILE APP CAUSED BY YOU OR ANY PERSON USING YOUR ACCOUNT. WE CANNOT AND DO NOT ASSUME ANY RESPONSIBILITY FOR ANY LOSS, DAMAGES OR LIABILITIES ARISING FROM THE FAILURE OF ANY TELECOMMUNICATIONS INFRASTRUCTURE, OR THE INTERNET OR ANY ADVICE, IDEAS, INFORMATION, INSTRUCTIONS OR GUIDELINES ACCESSED THROUGH THE MOBILE APP. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSIONS MAY NOT APPLY. APPLE OR GOOGLE HAVE NO OBLIGATIONS UNDER THIS WARRANTY OR UNDER THIS AGREEMENT.
LIMITATIONS OF LIABILITY
IN THE EVENT OF ANY PROBLEM WITH THE MOBILE APP OR ANY CONTENT ACCESSED VIA THE MOBILE APP, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE MOBILE APP. UNDER NO CIRCUMSTANCES SHALL OBRIA, ANY OF ITS LICENSORS OR SUPPLIERS, APPLE OR GOOGLE BE LIABLE IN ANY WAY FOR YOUR USE OF THE MOBILE APP OR ANY OF THE CONTENTS ACCESSED, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, ANY INFRINGEMENT BY ANY CONTENT OF THE INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF THIRD PARTIES, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT.
UNDER NO CIRCUMSTANCES SHALL OBRIA AND ITS LICENSORS, SUPPLIERS, AND HEALTH CARE PROVIDERS, APPLE OR GOOGLE BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY PERSONAL INJURY, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR COMPUTER OR OTHERWISE) ARISING FROM OR IN CONNECTION WITH YOUR USE OF THE MOBILE APP OR THE SERVICES, WHETHER UNDER A THEORY OF BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MALPRACTICE OR OTHERWISE, EVEN IF WE OR THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Without limiting the generality or effect of other provisions of this Agreement, as a condition of use of the Mobile App and the Services, you agree to indemnify, hold harmless, and defend Obria, and its parents, subsidiaries, affiliates, licensors, suppliers and health care providers, and Apple and Google and the officers, directors, affiliates, subcontractors, agents and employees of each of them (collectively, “Indemnified Parties” and each, individually, an “Indemnified Party”) against all costs, expenses, liabilities and damages (including reasonable attorney’s fees) incurred by any Indemnified Party in connection with any third party claims arising out of: (i) your use of the Mobile App; (ii) your failure to comply with any applicable laws and regulations; and (iii) your breach of any of your obligations set forth in this Agreement. You shall not settle any such claim without the written consent of the applicable Indemnified Party. Apple and Google have no obligations under this Agreement including, without limitation, any obligation to indemnify you for any third party claims, any responsibility for the operation of the Mobile App or the Services, or any provision of maintenance or support for the Mobile App.
You agree that we may send to you in electronic form any privacy or other notices, disclosures, reports, documents, communications or other records regarding the Mobile App (collectively, “Notices”). We can send you electronic Notices (1) to the e-mail address that you provided to us when opening an account through the Mobile App or (2) by posting the Notice through the Mobile App. The delivery of any Notice from us is effective when sent, regardless of whether you read the Notice when you receive it or whether you actually receive the delivery. You can withdraw your consent to receive Notices electronically by discontinuing your use of the applicable service. In order to receive Notices electronically, you must have a personal computer with a modem connected to a communications source (telephone, wireless or broadband), and a Windows-based operating system or a Macintosh-based operating system with an Internet browser. You will need a printer attached to your personal computer to print any Notices.
DISPUTE RESOLUTION AND ARBITRATION
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS. YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT MEANS THAT YOU UNDERSTAND AND KNOWINGLY AND VOLUNTARILY AGREE THAT YOU ARE: (1) WAIVING THE RIGHT TO A TRIAL BY JURY, (2) SUBMITTING ANY UNRESOLVED DISPUTE TO BINDING ARBITRATION, AND (3) WAIVING THE RIGHT TO PARTICIPATE OR BE REPRESENTED IN ANY CLASS ACTION PROCEEDING.
If you have a dispute, controversy or claim arising out of or relating in any way to this Agreement (“Dispute”), you agree to attempt to resolve the Dispute through informal good faith negotiations with Obria, to the extent allowed by law. You and Obria agree that any Dispute that cannot be informally resolved within a timely manner, shall be finally resolved by confidential, final binding arbitration in lieu of any trial before a judge and/or jury, except as (i) otherwise provided in this Agreement, or (ii) if such Dispute arises out of either your or our intellectual property rights for which a provisional remedy or equitable relief is sought. The arbitration and this Agreement shall be controlled and governed by the Federal Arbitration Act.
The party alleging the Dispute shall submit a formal written demand for arbitration to the other party within the time limit established by the applicable statute of limitations, or if there is none, within one (1) year of the date the aggrieved party first knows or should have known of the event giving rise to the Dispute. The Dispute shall be brought before the American Arbitration Association (the “AAA”) at a place in Orange County, under the AAA Commercial Arbitration Rules then in effect. The arbitration shall be conducted by a neutral arbitrator in accordance with the applicable AAA rules, or other rules mutually agreed upon in writing by the parties. If the parties cannot mutually agree upon an arbitrator within thirty (30) days after AAA has proposed names of potential arbitrators, then AAA shall choose the arbitrator.
The arbitrator shall render a written award and opinion that reveals the essential findings and conclusions upon which the award is based. Judgment upon any award rendered in such arbitration will be binding and final and may be entered in any court having jurisdiction thereof. Both you and we consent to the exclusive jurisdiction of the courts of Orange County, California for the resolution of any Dispute that is not resolved by arbitration. Each party will pay for its own attorneys’ fees.
WAIVER OF RIGHT TO FILE CLASS, COLLECTIVE, OR REPRESENTATION ACTIONS: Any Dispute in any forum shall be brought against a party only in the aggrieved party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, joint or representative proceeding. The aggrieved party’s claims may not be consolidated or joined in arbitration with the claims of other persons or individuals who may be similarly situated or have similar disputes, unless agreed to in writing by all parties. With respect to the claims covered by this Agreement, the Parties expressly waive any right to submit, initiate or participate in a representative capacity or as a plaintiff, claimant or member in a class action, collective action, or other representative or joint action, regardless of whether the action is filed in arbitration or in court.
This Agreement shall be governed by the laws of the State of California without regard to its rules on conflicts or choice of law. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
You also agree to comply with any applicable export laws concerning the Mobile App. This Agreement, which incorporates the Consent to TeleHealth Services and makes it a part of this Agreement, constitutes the sole Agreement between you and us for your use and our provision of the Mobile App and the subject matter hereof, and no representations, statements or inducements, oral or written, not contained in this Agreement shall bind either you or us. Any of the terms of this Agreement that are determined to be invalid or unenforceable shall be ineffective to the extent of such invalidity or unenforceability, without rendering invalid or unenforceable any of the remaining terms of this Agreement or affecting the validity or enforceability of the Agreement as a whole. Failure to insist on performance of any of the terms of the Agreement will not operate as a waiver of any subsequent default. No waiver by us of any right under this Agreement will be deemed to be either a waiver of any other right or provision or a waiver of that same right or provision at any other time. You may not assign, transfer or delegate your rights or obligations hereunder, in whole or in part. This Agreement shall be binding upon and inure to the benefit of each of the parties and the parties’ respective successors and permitted assigns. Except as otherwise specifically provided herein, this Agreement may not be modified, supplemented, qualified or interpreted except in writing signed by the parties. Apple and Google are third party beneficiaries of this Agreement and as such have the right to enforce the terms and conditions of this Agreement against you. Any questions or complaints with respect to the Mobile App should be directed to the following name and address:
The Obria Group, Inc.
17731 Irvine Blvd. Ste. 201-B
Tustin, CA 92780
A printed version of this Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.