Last modified: July 23, 2020
1. Privacy Practices
2. Services Provided – No Medical Care or Advice by Ophelia Health
We offer an online communication platform for Providers and their patients to connect via the Site through the use of synchronous and asynchronous telecommunications technologies. The Site facilitates communication between patients and Providers.
Ophelia Health does not provide medical advice or care. Ophelia Health contracts with Ophelia Medical, an independent, physician-owned medical group with a network of United States based Providers who provide clinical telehealth services. Ophelia Medical Providers deliver clinical services via the Ophelia Health platform to their patients. Providers are independently contracted or employed by the Ophelia Medical. Providers are not contracted or employed by Ophelia Health. The Providers, and not Ophelia Health, are responsible for the quality and appropriateness of the care they render to you. Ophelia Health and Ophelia Medical do not provide any legal advice or representations in any way regarding any legal issues associated with advice, information, goods, or services offered by a Provider, including but not limited to any compliance obligations or steps necessary to comply with any state or federal laws and regulations.
The Providers are independent of Ophelia Health and are merely using the Site as a way to communicate with you. Any information or advice received from a Provider comes from them alone, and not from Ophelia Health. Your interactions with the Providers via the Site are not intended to take the place of your relationship with your regular health care practitioners or primary care physician. Neither Ophelia Health, nor any of its subsidiaries or affiliates or any third party who may promote the Site or Service or provide a link to the Service, shall be liable for any professional advice obtained from a Provider via the Site or Service, nor any information obtained on the Site. Ophelia Health does not recommend or endorse any specific Providers, tests, physicians, medications, products, or procedures. You acknowledge that your reliance on any Providers or information delivered by the Providers via the Site or Service is solely at your own risk and you assume full responsibility for all risks associated herewith.
Ophelia Health does not make any representations or warranties about the training or skill of any Providers who deliver services via the Site or Service. You will be provided with available Providers based solely on the information you submit to the Site. You are ultimately responsible for choosing your particular Provider.
The content of the Site and the Services, including without limitation, text, copy, audio, video, photographs, illustrations, graphics, and other visuals, is for informational purposes only and does not constitute professional medical advice, diagnosis, treatment, or recommendations of any kind by Ophelia Health. You should always seek the advice of your qualified health care professionals with any questions or concerns you may have regarding your individual needs and any medical conditions. All information provided by Ophelia Health, or in connection with any communications supported by Ophelia Health, is intended to be for general information purposes only, and is in no way intended to create a provider-patient relationship as defined by state or federal law. While Ophelia Health facilitates your selection of, and communications with, Providers, Ophelia Health does not provide medical services, and the doctor-patient relationship is between you and the Ophelia Medical Provider you select.
Not for Emergencies
IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, YOU SHOULD DIAL “911” IMMEDIATELY.
Ophelia Health’s Site and Services are not for medical emergencies or urgent situations. You should not disregard or delay to seek medical advice based on anything that appears or does not appear on the Site. If you believe you have an emergency, call 9-1-1 immediately.
You should seek emergency help or follow up care when recommended by a Provider or when otherwise needed. You should continue to consult with your primary provider and other healthcare professionals as recommended. Always seek the advice of a physician or other qualified healthcare provider concerning questions you have regarding a medical condition and before stopping, starting, or modifying any treatment or modification.
Risks of Telehealth Services
By using the Services, you acknowledge the potential risks associated with telehealth services. These include but are not limited to the following: information transmitted may not be sufficient (e.g. poor resolution of images) to allow for appropriate medical or health care decision making by the Provider; delays in evaluation or treatment could occur due to failures of electronic equipment; a lack of access to your medical records may result in adverse drug interactions or allergic reactions or other judgment errors; although the electronic systems we use incorporate network and software security protocols to protect the privacy and security of health information, those protocols could fail causing a breach of privacy of your health information.
Neither Ophelia Health nor Ophelia Medical endorse any specific medication, pharmacy, or pharmacologic product. If a Provider prescribes a medication, he/she will limit supply based upon state regulations and will only prescribe a medication as determined in his/her own discretion and professional judgment. There is no guarantee a prescription will be written. Providers do not prescribe DEA controlled substances or scheduled medications, or certain other drugs which may be harmful because of their potential for abuse. Providers reserve the right to deny care for actual or potential misuse of the Services.
You agree that any prescriptions that you acquire from a Provider will be solely for your personal use. You agree to fully and carefully read all provided product information and labels and to contact a physician or pharmacist if you have any questions regarding the prescription. Ophelia Health and Ophelia Medical fully honor patient freedom of choice and, if you receive a prescription for a medication, you always have the option to instruct Ophelia Medical to transmit that prescription to the pharmacy of your choice.
Not an Insurance Product
Neither Ophelia Health nor Ophelia Medical are insurers. The Services are not insurance products, and the amounts you pay to Ophelia Health or Ophelia Medical are not insurance premiums. If you desire any type of health or other insurance, you will need to purchase such insurance separately.
3. Availability of Services
Ophelia Health and Ophelia Medical operate subject to state and federal regulations, and the Services may not be available in your state. You represent that you are not a person barred from enrolling for or receiving the Services under the laws of the United States or other applicable jurisdictions in which you may be located. Access to and use of the Site or the Services is limited exclusively to users located in States within the United States where the Services are available. Services are not available to users located outside the United States. Accessing the Site or Services from jurisdictions where content is illegal, or where we do not offer Services, is prohibited.
4. Ordering and Purchasing of Services or Products
Order Acceptance and Shipment
Your placement of an order does not necessarily ensure that we will accept your order. We may require additional information regarding your order if you have not provided all the information required by us. Once a properly completed order and authorization of your form of payment is received, we will process your order and Product for shipment. If, for some reason, we determined that we cannot ship your Products within thirty (30) days following our receipt of a properly completed order, we will cancel your order and advise you of such action. We do not accept orders from dealers, wholesalers, or other customers who intend to resell items offered on our Site.
Typographical Errors and Incorrect Pricing
In the event a Product or Service is listed at an incorrect price due to typographical error or error in pricing information received from a third party, we shall have the right to refuse or cancel any orders placed for the Products or Services listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit or debit card charged. If your credit or debit card has already been charged for the purchase and your order is canceled, we will promptly issue a credit to your credit or debit card account in the amount of the charge.
Risk of Loss
All Products purchased from our Site are delivered to shipment carriers. The risk of loss and title for such Products pass to you when they are delivered to the carrier.
You may return Products in accordance with our Returns Policy posted on our Site.
You can purchase services and items on the Site. To simplify the user experience on the Site, you are able to pay for your purchases via the Site with Ophelia Health serving as payment processing agent on your behalf. If you elect to purchase a service from Ophelia Medical or an item (e.g., a prescription product) from a pharmacy listed on our Site, then the total price you pay includes the amount charged by Ophelia Medical for the service, as well as the amount charged by the pharmacy. We also charge a subscription fee for you to use and access the Site and its features via your user account. We collect the amounts charged by the pharmacy and Ophelia Medical on your behalf and pass through to them the payment for their actual charges. Before making a purchase, you will see an itemized invoice listing the actual charges by Ophelia Medical for the services, the pharmacy for the prescription products, and us for the online membership fee.
We accept credit and debit cards issued by U.S. banks. If a credit card account is being used for a transaction, Ophelia Health may obtain preapproval for an amount up to the amount of the payment. If you enroll to make recurring payments automatically, all charges and fees will be billed to the credit card you designate during the setup process. If you want to designate a different credit card or if there is a change in your credit card, you must change your information online. This may temporarily delay your ability to make online payments while we verify your new payment information.
You represent and warrant that if you are making online payments that (a) any credit card, debit card and bank account information you supply is true, correct, and complete, (b) charges incurred by you will be honored by your credit/debit card company or bank, (c) you will pay the charges incurred by you in the amounts posted, including, without limitation, any applicable taxes, and (d) you are the person in whose name the card was issued and you are authorized to make a purchase or other transaction with the relevant credit card and credit card information.
If you purchase a subscription to our Services, your subscription is continuous and will be automatically renewed at the end of the applicable subscription period, unless you cancel your subscription before the end of the then-current subscription period. If you cancel your subscription, your account will automatically close at the end of your current billing period. Ophelia Health may change the price for your Ophelia Health subscription, from time to time and will communicate any price changes to you in advance and, if applicable, how to accept those changes. Price changes will take effect at the start of the next subscription period following the date of the price change. Subject to applicable law, you accept the new price by continuing to use the Ophelia Health Services after the price change takes effect. If you do not agree with a price change, you have the right to reject the change by unsubscribing from the Services prior to the price change going into effect.
No-Show / Cancellation Fee
Please note that we charge a $50 fee for all visits that are no-showed or not canceled/rescheduled within 24 hours of the scheduled start time. This policy is in place to protect our clinicians’ time, and to keep Ophelia affordable for all patients.
5. Eligibility; Site Access, Security and Restrictions; Passwords
You agree to fully, accurately, and truthfully create your Ophelia Health Account (“Account”), including but not limited to your name, mailing address, phone number, email address, and password, which become your Ophelia Health ID and credentials. The Ophelia Health ID or credentials are personal to you, and you are solely responsible for maintaining the confidentiality of your Ophelia Health ID or credentials, and for all activities that occur under such Ophelia Health ID or credentials. You agree to prohibit anyone else from using your Ophelia Health ID or credentials and agree to immediately notify Ophelia Health of any actual or suspected unauthorized use of your Ophelia Health ID or credentials or other security concerns of which you become aware. Your access to the Site may be revoked by Ophelia Health at any time with or without cause.
You may not use any scraper, crawler, spider, robot, or other automated means of any kind to access or copy data on the Site, deep-link to any feature or content on the Site, bypass our robot exclusion headers, or other measures we may use to prevent or restrict access to the Site. Violations of system or network security may result in civil or criminal liability. Ophelia Health may investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software, or routine to interfere or attempt to interfere with the proper working of this Site or any activity being conducted on this Site.
6. Electronic Communications
When you use the Site or Services, or send e-mails, messages, and other communications from your desktop or mobile device to us, you are communicating with us electronically. You consent to receive communications from us electronically. You agree that (a) all agreements and consents can be signed electronically and (b) all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such notices and other communications be in writing. Ophelia Health and Ophelia Medical may contact you by telephone, mail, or email to verify your Account information. Ophelia Health and Ophelia Medical may request further information from you and you agree to provide such further information to ensure that you have not fraudulently created your Account. If you do not provide this information in the manner requested within 14 days of the request, we reserve the right to suspend, discontinue, or deny your access to and use of the Site and the Services until you provide the information to us as requested.
7. Consent to Receive Calls and Text Messages and Video Recording
By providing your mobile number, you are agreeing to be contacted by or on behalf of Ophelia Health at the mobile number you have provided, including calls and text messages, to receive informational, Product or Service related (e.g., progress tracking, reminders, etc.) messages and communications relating to the Site and Services. Message and data rates may apply. For help, text the word HELP to (215) 585-2144. To stop receiving text messages text the word STOP to (215) 585-2144. We may confirm your opt out by text message. If you subscribe to multiple types of text messages from us, we may unsubscribe you from the service that most recently sent you a message or respond to your STOP message by texting you a request to identify services you wish to stop. Please note, that by withdrawing your consent, some Site features and certain Services may no longer be available to you. Keep in mind that if you stop receiving text messages from us you may not receive important and helpful information and reminders about your Services.
8. Ownership Of The Site And Related Materials; Additional Restrictions
All pages within this Site and any material made available for download are the property of Ophelia Health, or its licensors or suppliers, as applicable. The Site is protected by United States and international copyright and trademark laws.
9. No Users Under 18 Years Old
In order to access the Site and the Services, you represent and warrant that you are older than 18 years old. If you are under the age of 18, please do not attempt to register with us at this Site or provide any personal information about yourself to us. If we learn that we have collected personal information from someone under the age of 18, we will promptly delete that information. If you believe we have collected personal information from someone under the age of 18, please contact us at email@example.com.
10. Accuracy of Information; Functionality
Although Ophelia Health attempts to ensure the integrity and accurateness of the Site and Service descriptions, it makes no representations, warranties, or guarantees whatsoever as to the correctness or accuracy of the Site, Service descriptions and other content on the Site. It is possible that the Site could include typographical errors, inaccuracies or other errors, and that unauthorized additions, deletions, and alterations could be made to the Site by third parties. In the event that an inaccuracy arises, please inform Ophelia Health so that it can be corrected. Information contained on the Site may be changed or updated without notice. Additionally, Ophelia Health shall have no responsibility or liability for information or content posted to the Site from any non-Ophelia Health affiliated third party.
Ophelia Health and Ophelia Medical each reserves complete and sole discretion with respect to the operation of the Site and the Services. We may withdraw, suspend, or discontinue any functionality or feature of the Site or the Services among other things. We are not responsible for transmission errors, corruption, or compromise of information carried over local or interchange telecommunications carrier. We are not responsible for maintaining information arising from use of the Site or with respect to the Services. We reserve the right to maintain, delete, or destroy all communications or information posted or uploaded to the Site or the Services in accordance with our internal record retention or destruction policies.
11. Links to Other Sites
Ophelia Health makes no representations whatsoever about any other website that you may access through this Site. When you access a non-Ophelia Health site, please understand that it is independent from Ophelia Health, and that Ophelia Health has no control over the content on that website. In addition, a link to a non-Ophelia Health website does not mean that Ophelia Health endorses or accepts any responsibility for the content, or the use, of the linked site. It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access any of the third party sites linked to this Site, you do this entirely at your own risk.
12. User Information
If you submit, upload, post, or transmit any health information, medical history, conditions, problems, symptoms, personal information, consent forms, agreements, requests, comments, ideas, suggestions, information, files, videos, images, or other materials to us or our Site (“User Information”), you agree not to provide any User Information that (a) is false, inaccurate, 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. You agree not to contact other Site users through unsolicited e-mail, telephone calls, mailings, or any other method of communication. You represent and warrant to Ophelia Health and Ophelia Medical that you have the legal right and authorization to provide all User Information to Ophelia Health and Ophelia Medical for use as set forth herein and required by Ophelia Health and the Ophelia Medical Provider.
Ophelia Health or Ophelia Medical may de-identify your information such that it is no longer considered protected health information or personally identifiable information. Ophelia Health or Ophelia Medical may disclose, aggregate, sell, or otherwise use such de-identified information to third parties for analytics, research, or other purposes.
You agree not to: (i) access the Site or use the Services in any unlawful way or for any unlawful purpose; (ii) post or transmit (1) a message under a false name, or (2) any data, materials, content, or information (including, without limitation, advice, and recommendations) (collectively “Information”) which is (A) libelous, defamatory, obscene, fraudulent, false, or contrary to the ownership or intellectual property rights of any other person, or (B) contains or promotes any virus, worm, Trojan horse, time bomb, malware, or other computer programing or code that is designed or intended to damage, destroy, intercept, download, interfere, manipulate, or otherwise interrupt or expropriate the Site or the Services, personal information, software, equipment, servers, or Information or facilitate or promote hacking or similar conduct; (iii) impersonate or misrepresent your identity or falsely state or misrepresent your affiliation with a person or entity; (iv) tamper, hack, spoof, copy, modify, or otherwise corrupt the administration, security, or proper function of the Site or the Services; (v) use robots or scripts with the Site; (vi) attempt to reverse engine, reverse assemble, reverse compile, decompile, disassemble, translate, or otherwise alter, defraud, or create false results from any executable code, information on, or received by this Site; (vii) to have any antivirus or antispyware software running that is set to override the internet browser’s cookies setting; (viii) incorrectly identify the sender of any message transmitted to Ophelia Health; (ix) alter the attribution or origin of electronic mail, messages, or posting; (x) harvest or collect personal health information about any other individual who uses the Site or the Services; and (xi) infringe or facilitate infringement on any copyright, patent, trademark, trade secret, or other proprietary, publicity, or privacy rights of any party, including but not limited to, such rights of third parties.
You agree to defend, indemnify, and hold harmless Ophelia Health, Ophelia Medical, and the Providers from and against all third party claims, damages, and expenses (including, but not limited to, reasonable attorneys’ fees) against or incurred by us arising out of any User Information you upload to or transmit through the Site or any breach of this Section 12.
13. Claims of Copyright Infringement
We disclaim any responsibility or liability for copyrighted materials posted on our Site. If you believe that your work has been copied in a manner that constitutes copyright infringement, please follow the procedures set forth below.
Ophelia Health respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act ("DMCA"), we will respond promptly to notices of alleged infringement that are reported to Ophelia Health’s Designated Copyright Agent, identified below.
Notices of Alleged Infringement for Content Made Available on the Site
If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through our Site by sending us a notice ("Copyright Notice") complying with the following requirements.
Ophelia Health, Inc.
755 Park Avenue
New York, NY 10021
14. Intellectual Property
With the exception of your electronic medical record, Ophelia Health and Ophelia Medical, as applicable, retain all right, title, and interest in and to the Site, the Services and any information, products, documentation, software, or other materials on the Site, and any patent, copyright, trade secret, trademark, service mark, or other intellectual property, or proprietary right in any of the foregoing, except for information on the Site licensed by Ophelia Health or Ophelia Medical (in that case, the license provider retains all right, title, and interest therein). The information available through the Site and the Services is the property of Ophelia Health or Ophelia Medical, as applicable. You agree not to store, copy, modify, reproduce, retransmit, distribute, disseminate, rent, lease, loan, sell, publish, broadcast, display, or circulate such information to anyone. Use, reproduction, copying, or redistribution of Ophelia Health or Ophelia Medical trademarks, service marks, and logos are strictly prohibited without the prior written permission of Ophelia Health or Ophelia Medical, as applicable. The immediately foregoing sentence also applies to any third party trademarks, service marks, and logos posted on the Site. Nothing contained on the Site should be construed as granting, by implication, estoppel, waiver, or otherwise, any license or right to use any trademarks, service marks, or logos displayed on the Site without the written grant thereof by Ophelia Health, Ophelia Medical, or the third party owner of such trademarks, service marks, or logos. The Site may contain other proprietary notices and copyright information, the terms of which you agree to follow.
Ophelia Health may delete any information provided by you that it deems in its sole discretion fraudulent, abusive, defamatory, obscene, or in violation of copyright, trademark, or other intellectual property or ownership right of any other person or entity.
15. CAN-SPAM Act and Telephone Consumer Protection Act Compliance
Ophelia Health and Ophelia Medical are 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”). You consent to receive text messages from us as set forth in Section 7, above (Consent to Receive Calls and Text Messages and Video Recordings). Emails, newsletters, and text messages received from us are intended to fully comply with the CAN-SPAM ACT and the TCPA. In the event you receive an email or text message from us which you do not believe is fully compliant with the CAN-SPAM ACT or the TCPA, please contact us immediately at the address listed below under the section “How to Contact Us.”
You shall not use or permit any of your employees, agents, or affiliates to market, promote, or solicit Ophelia Health products or services in ways that would violate the CAN-SPAM ACT, the TCPA or any other laws. You shall not: (a) infringe on the rights of others; distribute chain letters or unsolicited bulk electronic mail (“spamming”); (b) propagate computer worms or viruses; (c) use a false identity; (d) attempt to gain unauthorized entry to any site or network; or (e) infringe copyrights, trademarks, or other intellectual property rights.
You further agree to comply with U.S. export laws concerning the transmission of technical data and regulated materials via the Internet. You agree to indemnify and hold Ophelia Health and its affiliates harmless for any and all acts found or suspected to be in violation hereof. You shall indemnify and hold Ophelia Health and its affiliates harmless against and from losses, damages, costs, and reasonable attorney fees incurred in defending or resolving any suits brought against Ophelia Health or any of its affiliates by anyone arising out of any alleged violation of any anti-spamming rules, regulations, laws, statutes. Your Account will be terminated for any of the above infractions.
16. Disclaimer of Warranties
OPHELIA HEALTH DOES NOT WARRANT THAT ACCESS TO OR USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SITE WILL BE CORRECTED. THIS SITE, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY SITE-RELATED SERVICE, IS PROVIDED "AS IS," WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND TITLE/NON-INFRINGEMENT. OPHELIA HEALTH DOES NOT WARRANT THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE INFORMATION OBTAINED THROUGH THE SITE.
YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS SITE, SITE-RELATED SERVICES, AND LINKED WEBSITES. OPHELIA HEALTH DOES NOT WARRANT THAT FILES AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER DESTRUCTIVE PROGRAMMING. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACK UP AND SECURITY.
WARRANTIES RELATING TO PRODUCTS OR SERVICES OFFERED, SOLD, AND DISTRIBUTED BY OPHELIA HEALTH ARE SUBJECT TO SEPARATE WARRANTY TERMS AND CONDITIONS, IF ANY, PROVIDED BY OPHELIA HEALTH OR THIRD PARTIES WITH OR IN CONNECTION WITH THE APPLICABLE PRODUCTS OR SERVICES. OPHELIA HEALTH DOES NOT GUARANTEE THAT THROUGH USE OF OUR SERVICES ANY PRESCRIPTIONS WILL BE WRITTEN FOR YOU. OPHELIA MEDICAL PROVIDERS DO NOT PRESCRIBE DEA CONTROLLED SUBSTANCES, SUCH AS THOSE CONTAINING OPIOIDS OR AMPHETAMINES. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE USE OR MISUSE OF THE PRODUCTS OBTAINED THROUGH OUR SITE MAY RESULT IN UNDESIRABLE OR UNEXPECTED CONSEQUENCES. OPHELIA HEALTH DOES NOT ACCEPT ANY LIABILITY FOR THE CONSEQUENCES ARISING FROM THE APPLICATION, USE, OR MISUSE OF ANY PRODUCTS OR SERVICES CONTAINED ON OR MADE AVAILABLE THROUGH THE SITE, INCLUDING ANY INJURY OR DAMAGE TO ANY PERSON OR PROPERTY AS A MATTER OF NEGLIGENCE, OR OTHERWISE, INCLUDING YOUR FAILURE TO COMPLY WITH ANY WARNING LABELS ATTACHED TO THE PRODUCTS.
17. Limitation of Liability Regarding Use of Site
EXCEPT AS PROVIDED BY LAW, AND WITHOUT LIMITATION:
OPHELIA HEALTH SHALL NOT BE LIABLE FOR THE ACTS OR OMISSIONS OF OPHELIA MEDICAL OR THE PROVIDERS. OPHELIA HEALTH AND ANY THIRD PARTIES MENTIONED ON THIS SITE ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE, SITE-RELATED SERVICES, CONTENT OR INFORMATION CONTAINED WITHIN THE SITE, OR ANY LINKED WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE, SITE-RELATED SERVICES, OR LINKED WEBSITES IS TO STOP USING THE SITE OR THOSE SERVICES. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM LIABILITY OF OPHELIA HEALTH TO YOU WITH RESPECT TO YOUR USE OF THIS SITE IS $500 (FIVE HUNDRED DOLLARS). YOU HEREBY AGREE TO WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL LAWS THAT LIMIT THE EFFICACY OF SUCH INDEMNIFICATIONS OR RELEASES.
18. No Third Party Rights
20. Supplemental Terms Applicable to Providers
To be a healthcare provider using the Site (for purposes of this Section 20, “Provider” or “you”) you must be a licensed physician, nurse practitioner, or healthcare professional contracted or employed by Ophelia Medical, 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 Ophelia Health users (including, but not limited to, your Ophelia Medical patients) is directly between you and the patient. The patient will never have a physician-patient relationship with Ophelia Health. Ophelia Health 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 and Ophelia Medical is solely responsible for all billings and collections from patients and other consumers, and Ophelia Health shall have no liability whatsoever to Provider with respect to any amounts owed by any patient or other consumer to Provider.
Ophelia Health does 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 Services in determining Provider’s compliance obligations under law. Provider and Ophelia Health agree that Ophelia Health is not providing to customers, patients, or anyone else, medical advice or legal advice.
Provider will use the Site and Services only in accordance with applicable standards of good medical practice. While software products such as the Site and Services 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 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 shall be solely responsible for its use of the Site and Services, and the provision of medical services to Provider’s patients. In this regard, Provider releases Ophelia Health and waives any and all potential claims against Ophelia Health as a result of Provider’s use of the Site and Services, and the provision of 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 Ophelia Health 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 Ophelia Health, regardless of the cause if such claim arises for any reason whatsoever, out of Provider’s use or operation of the Site and Services. To the extent applicable, Provider will obtain Ophelia Health’s prior written consent to any settlement or judgment in which Provider agrees to any finding of fault of Ophelia Health or defect in the Site or Services. Ophelia Health 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 Site (“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-mail, telephone calls, mailings, or any other method of communication. You represent and warrant to Ophelia Health that you have the legal right and authorization to upload all Provider Content at the Site. Ophelia Health shall have a royalty-free, irrevocable, transferable right and license to use the Provider Content however Ophelia Health 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. Ophelia Health 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.
Ophelia Health 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 Site. You grant Ophelia Health the right to use the name that you submit in connection with any Provider Content. You agree not to use a false email 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 Site or provide to patients or other consumers. Ophelia Health and its affiliates take no responsibility and assume no liability for any Provider Content submitted by you or any third party.
21. Dispute Resolution; Arbitration Agreement
We will try to work in good faith to resolve any issue you have with the Site, including without limitation, Products and Services ordered or purchased through the Site, 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.
If you desire to assert a claim against Ophelia Health, and you therefore elect to seek arbitration, you must first send to Ophelia Health, by certified mail, a written notice of your claim ("Notice"). The Notice to Ophelia Health should be addressed to: Ophelia Health, Inc., Attn: Legal, 8755 Park Avenue, Suite 4A, New York, NY 10021 ("Notice Address"). If Ophelia Health 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 Ophelia Health, must (a) describe the nature and basis of the claim or dispute, and (b) set forth the specific relief sought ("Demand"). If Ophelia Health and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Ophelia Health may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by Ophelia Health 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 Ophelia Health 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 $2,000.
YOU AND OPHELIA HEALTH AGREE THAT EACH 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, unless both you and Ophelia Health agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.
22. Force Majeure
24. Application Support; Functionality
All questions and requests relating to Site support must be directed to Ophelia Health. To submit a support request, please email us at firstname.lastname@example.org. Ophelia Health will use commercially reasonable efforts to respond to questions and provide support. Please note that we may change or remove functionality and other features of the Site at any time, without notice.
25. Revisions; General
Copyright/Trademark Information. Copyright ©2019 Ophelia Health, Inc. All rights reserved. All trademarks, logos, and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
How to Contact Us:
Ophelia Health, Inc.
755 Park Avenue
New York, NY 10021