Last Updated: October 1, 2019
Welcome, and thank you for your interest in Ginger.io, Inc. ("Ginger.io," "we," or "us") along with our related networks, applications, mobile applications, and other services provided by us (collectively, the "Software Service").
Ginger.io uses the Software Services to facilitate your relationship with Ginger.io of California Medical P.C. or an affiliated medical provider (collectively "G.io Medical," together with Ginger.io, "Ginger") to provide tele-coaching, tele-therapy, tele-psychiatry, and other teleservices (collectively, the "Teleservices," together with the Software Service, the "Service"). These Terms of Service are a legally binding contract between you and Ginger regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
TELESERVICES. BY USING THE TELESERVICES FACILITATED BY THE SOFTWARE SERVICES, YOU CONSENT TO THE SELECTED TELESERVICES YOU CHOOSE TO USE AND TO THE PROVIDER OF SUCH TELESERVICES. SUCH CONSENT INCLUDES YOUR AUTHORIZATION FOR THE SELECTED TELESERVICES, INCLUDING WITHOUT LIMITATION THE USE OF CERTAIN REMOTE-ACCESS COMMUNICATION FEATURES/FUNCTIONALITY (SUCH AS VIDEO, TEXT, OR AUDIO), INFORMATION AND RECORDS FOR DELIVERING THE SELECTED SERVICES IN COMPLIANCE WITH APPLICABLE LAW.
EMERGENCIES. YOU AGREE THAT THE SERVICE IS NOT INTENDED TO BE USED IN A MEDICAL EMERGENCY.
SOFTWARE SERVICES. EXCEPT FOR SERVICES PROVIDED BY A LICENSED HEALTHCARE PROVIDER, THE SOFTWARE SERVICE IS NOT INTENDED TO BE USED FOR SELF-DIAGNOSIS OR MEDICAL ADVICE, AND THE SOFTWARE SERVICE IS SOLELY A TOOL TO BE USED IN CONJUNCTION WITH A TELESERVICE HEALTHCARE PROVIDER, INCLUDING G.IO MEDICAL. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN, TELESERVICE HEALTHCARE PROVIDER OR OTHER QUALIFIED HEALTH PROVIDER REGARDING A MEDICAL CONDITION OR TREATMENT.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 16, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND GINGER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 16.)
1. Ginger Service Overview
- 1.1 Ginger.io. Ginger.io is a technology company that provides the Software Service, including Teleservices communication functionality as well as behavioral analytics.
- 1.2 G.io Medical. G.io Medical is an independent, third-party professional medical corporation that provides healthcare services such as licensed psychotherapy and psychiatry, including Teleservices. G.io Medical is a licensed medical provider that can provide medical advice, diagnosis, and treatment, as applicable.
- 1.3 Medical Services Disclaimer. Ginger.io does not provide medical or other healthcare services and solely provides the Software Services, a technology platform through which an independent, third-party healthcare provider (such as G.io Medical) provides healthcare services to you. Any medical or healthcare services provided through the use of the Software Services, such as the tele-therapy or tele-psychiatry services, are provided by G.io Medical or another authorized and licensed third party medical or healthcare services provider.
You understand and agree that Ginger.io is not a licensed medical provider and does not provide medical care, healthcare services or emergency services. You further understand and confirm that you must use a licensed healthcare provider (such as G.io Medical) as described below in order to receive medical care, or healthcare services. The actual healthcare services you receive through the Ginger.io technology platform will be provided by professionals who work for an independent, third-party licensed healthcare provider referred to you by or in the Software Service.
- 1.5 Teleservices. You may have access to the following Teleservices provided by a Teleservice provider (such as G.io Medical).
- a. Tele-coaching, which uses unlicensed personnel with the applicable educational degrees to provide such coaching, and otherwise help you clarify and understand a problem or need for change or improvement; this Teleservice is NOT INTENDED TO, NOR DOES IT, PROVIDE CLINICAL COUNSELING OR THERAPY, MEDICAL ADVICE, DIAGNOSIS, OR MEDICAL TREATMENT. While this Teleservice may be provided by a licensed medical provider such as G.io Medical, coaching is not a licensed or regulated service and does not require licensed professionals.
- b. Tele-therapy, which uses licensed therapists to provide clinical counseling and psychotherapy to address mental, psychological, behavioral or emotional issues/conditions.
- c. Tele-psychiatry, which uses licensed medical doctors specializing in psychiatry to address psychological, physical, mental, behavioral or emotional conditions.
- Please note that the Teleservice healthcare provider may use social workers, nurse practitioners, or other licensed personnel to provide or supervise call-based, video-based, or text-based Teleservices as part of the Teleservice, which may include (without limitation) medical referral or emergency call-based services.
- 1.6 Teleservices Restrictions. Without limiting any other restrictions set forth in these Terms, you shall refrain from any abusive, dangerous, or threatening behavior when using the Service. Ginger reserves the right to immediately terminate your access to or use of the Service if, in its sole discretion, such behavior is exhibited. Ginger has the right to contact emergency services to the extent it, in its sole discretion, Ginger believes that you pose an imminent threat of harm to yourself, to property or to another person.
- 1.7 Records. Notwithstanding anything to the contrary herein, G.io Medical or the applicable Teleservice Provider will retain medical records with respect to your use of Teleservices for the duration of any contract it has with an applicable Enterprise Customer and thereafter as required by applicable law, and provide you access thereto in accordance with applicable law.
2. Eligibility. You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations.
3. Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you may be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org. Depending on how your register, your account may be associated with an enterprise customer of Ginger.io ("Enterprise Customer").
4. General Payment Terms. Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable.
- 4.1 Price. Ginger.io reserves the right to determine pricing for the Service. Ginger.io will make reasonable efforts to keep pricing information published on the Software Service up to date. We encourage you to check our website periodically for current pricing information. Ginger.io may change the fees for any feature of the Service, including additional fees or charges, if Ginger.io gives you advance notice of changes before they apply. The fees you owe may vary based on your associated Enterprise Customer's agreement with Ginger.io, or the coverage offered by your applicable health insurance provider. Ginger.io is not responsible for whether your health insurance offers any amount of coverage for the Services. Ginger.io, at its sole discretion, may make promotional offers with different features and different pricing to any of Ginger.io's Enterprise Customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
- 4.3 Subscription Service. The Service may include automatically recurring payments for periodic charges ("Subscription Service"). If you activate a Subscription Service, you authorize Ginger.io to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The "Subscription Billing Date" is the date when you purchase your first subscription to the Service. Your account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next subscription period. The subscription will continue unless and until you cancel your subscription or we terminate it. You must cancel your subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your account. We will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information). You may cancel the Subscription Service via a functionality of the Software Service or by contacting us at: email@example.com.
- 4.4 Cancellation Fees. Teleservices are subject to certain cancellation fees, as disclosed via the Software Service. Such cancellation fees will be owed if you miss a scheduled session, and fail to provide the required advanced notice, as communicated to you in advance.
- 4.5 Delinquent Accounts. Ginger.io may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
- 5.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Ginger.io grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Software Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use the Software Service.
- 5.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Software Service; (b) make modifications to the Software Service; or (c) interfere with or circumvent any feature of the Software Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Software Service, you may not use it.
- 5.3 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service ("Feedback"), then you hereby grant Ginger.io an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
6. Ownership; Proprietary Rights. The Software Service is owned and operated by Ginger.io. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Software Service ("Materials") provided by Ginger.io are protected by intellectual property and other laws. All Materials included in the Software Service are the property of Ginger.io or its third party licensors. Except as expressly authorized by these Terms or by Ginger.io, you may not make use of the Materials. Ginger.io reserves all rights to the Materials not granted expressly in these Terms.
7. Third Party Terms
- 7.1 Third Party Services and Linked Websites. Ginger.io may provide tools through the Service that enable you to export information, including User Content, to third party services. By choosing to use one of these tools, you agree that Ginger.io may transfer that information to the applicable third party service. You acknowledge these third party services are not under Ginger.io's control, and, to the fullest extent permitted by law, Ginger.io is not responsible for any third party service's use of your exported information. The Software Service may also contain links to third party websites. Linked third party websites are not under Ginger.io's control, and Ginger.io is not responsible for their content.
- 7.2 Third Party Software. The Software Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components ("Third Party Components"). Although the Software Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
8. User Content
- 8.1 User Content Generally. Certain features of the Software Service may permit users to upload content to the Software Service, including messages, data, text, and other types of works ("User Content") and to publish User Content on the Software Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
- 8.2 Limited License Grant to Ginger. By providing User Content to or via the Software Service, you grant Ginger.io a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense to third party service providers acting on Ginger.io's behalf) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute or use your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed as necessary to provide the Services to you.
- 8.3 User Content Representations and Warranties. Ginger.io disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Software Service. By providing User Content via the Software Service, you affirm, represent, and warrant that:
- a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Ginger.io to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Ginger.io, the Service, and these Terms;
- b. you will not use the Services to: (i) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (ii) cause Ginger to violate any law or regulation; and
- c. your User Content could not be deemed by a reasonable person to be objectionale, profane, indecent, pornographic, harassing, threatening, embarassing, hateful, or otherwise inappropriate.
- 8.4 User Content Disclaimer. We are under no obligation to edit or control User Content that you post or publish, and will not be in any way responsible or liable for User Content. Ginger.io may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable.
9. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
- a. use the Service except for your own personal use;
- b. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
- c. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
- d. interfere with security-related features of the Software Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Software Service except to the extent that the activity is expressly permitted by applicable law;
- e. interfere with the operation of the Software Service or any user's enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; or (ii) interfering with or disrupting any network, equipment, or server connected to or used to provide the Software Service;
- f. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Software Service account without permission, or falsifying your age or date of birth;
- g. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
- h. attempt to do any of the acts described in this Section 9 or assist or permit any person in engaging in any of the acts described in this Section 9.
10. Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time upon 7 days' notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 10, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
11. Term, Termination and Modification of the Service
- 11.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 11.2.
- 11.2 Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Ginger.io may, at its sole discretion, terminate these Terms or your account on the Software Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. If Ginger.io terminates your account, you will receive a pro rata refund of any fees that you have prepaid for the Service. You may terminate your account and these Terms at any time by terminating your account via a functionality of the Software Service or by contacting customer service at firstname.lastname@example.org. If you have an account through an Enterprise Customer, your account may terminate if the Enterprise Customer's relationship with Ginger terminates or expires, or if you end your relationship with the Enterprise Customer. If this happens, Ginger.io will use reasonable efforts to give you seven (7) days' notice before access to your account is terminated.
- 11.3 Effect of Termination. Upon termination of these Terms, subject to Section 1.7, and subject to G.io Medical's obligations under applicable law: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Software Service; (c) you must pay Ginger.io any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.3, 6, 8.2, 11.3, 12, 13, 14, 15, 16, 17, and 18 will survive.
- 11.4 Modification of the Service. Ginger.io reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Apart from the pro rata refund of any prepaid fees in Section 11.2, Ginger will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
12. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Ginger, the Enterprise Customer (if applicable) and each of their respective officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the "Ginger Entities") from and against any claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. The foregoing indemnification obligation is subject to Ginger promptly informing you in writing of any such claim, demand, action, or suit; provided that any failure to so inform you shall not prejudice your obligation of indemnity, except to the extent materially prejudiced thereby. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
13. Assumption of Risk. The Software Service is designed to provide a designated third-party with health-related information based on your inputs to surveys and mobile interactions, as such interactions are catalogued via your mobile device. The Software Service and any related data supplied to you by Ginger.io is not, nor a substitute for, medical advice. By granting you the right to use the Software Service, the Ginger Entities do not assume any obligation or liability with respect to your health or your physical activity or condition. In no event shall the Ginger Entities be liable for any death or bodily injury that you suffer, or that you cause to any third party, in connection with your use of the Software Service or any activity you undertake in connection with your use of the Software Service. As between you and the Ginger Entities, you are solely responsible for your use of the Software Service and your health and medical condition and treatment related thereto. The Ginger Entities shall have no liability for any unauthorized disclosure of your personally identifiable information caused by your actions or omissions.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, YOU AGREE THAT: (1) IF YOU ARE IN NEED OF OR ARE SEEKING MEDICAL TREATMENT OR EMERGENCY CARE, YOU SHOULD CONTACT YOUR HEALTHCARE PROVIDER OR CALL 911 IMMEDIATELY; (2) GINGER.IO DOES NOT PROVIDE MEDICAL TREATMENT, ADVICE, OR DIAGNOSIS AND IS NOT A HEALTHCARE PROVIDER; (3) GINGER.IO IS NOT YOUR HEALTHCARE PROVIDER, IS NOT AND DOES NOT PROVIDE 911 OR OTHER EMERGENCY SERVICES, AND MAY NOT CONTACT YOU OR ANYONE ON YOUR BEHALF WITH RESPECT TO YOUR MEDICAL CONDITION OR TREATMENT; (4) ANY WRITTEN MATERIAL PROVIDED BY GINGER.IO AND NOT BY G.IO MEDICAL THROUGH THE SOFTWARE SERVICE IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO REPLACE THE RELATIONSHIP BETWEEN YOU AND YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER; (5) GINGER.IO IS NOT A LICENSED MEDICAL CARE PROVIDER AND HAS NO EXPERTISE IN DIAGNOSING, EXAMINING, OR TREATING MEDICAL CONDITIONS OF ANY KIND, OR IN DETERMINING THE EFFECT OF ANY SPECIFIC TREATMENT ON A MEDICAL CONDITION; (6) YOU SHOULD ALWAYS CONSULT A PHYSICIAN IF YOU HAVE ANY QUESTIONS REGARDING A MEDICAL CONDITION; (7) NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ OR RECEIVED USING THE SOFTWARE SERVICE; (8) THE GINGER ENTITIES ASSUME NO LIABILITY WITH RESPECT TO ANY SURVEY OR RESEARCH/MEDICAL PROGRAM OR STUDY WITH WHICH YOU MAY BE USING THE SOFTWARE SERVICE; AND, (9) THE GINGER ENTITIES ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, EFFECTIVENESS, OR CORRECT USE OF INFORMATION YOU RECEIVE THROUGH OR IS GENERATED BY THE SOFTWARE SERVICE BY YOU.
In connection with your use of the tele-coaching service, you will work with a coach who will provide personal support, encouragement and motivation. The coaches or individuals who provide the tele-coaching services do not provide medical advice. The coaches do not provide professional clinical counseling or other clinical or psychotherapy services. None of the advice provided by the coaches or the Software Service should be considered medical or clinical advice and none of such information is intended as medical or clinical advice. You should always talk to your medical or other healthcare professionals for diagnosis and treatment, including information regarding which drugs or treatment may be appropriate for you. Do not disregard professional medical advice or delay seeking professional advice because of information you have read on our mobile application or received through tele-coaching. Do not stop taking any medications without speaking to your physician, nurse practitioner, physician assistant, mental health provider or other healthcare professional. The information provided in or through the Software Service, the website or the coaches, is not intended to be a substitute for professional medical advice, diagnosis or treatment that can be provided by your doctor or physician, nurse, or any other medical or clinical healthcare professional.
Apart from the pro rata refund of any prepaid fees in Section 11.2, you agree that the Ginger Entities shall not be liable to you for any unavailability, modification, suspension or discontinuance of any feature or component of the Service.
14. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. GINGER DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. GINGER DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND GINGER DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR GINGER ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE GINGER ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Ginger does not disclaim any warranty or other right that Ginger is prohibited from disclaiming under applicable law.
15. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE GINGER ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY GINGER ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 16.4 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE GINGER ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO GINGER FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $10,000.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16. Dispute Resolution and Arbitration
- 6.1 Generally. In the interest of resolving disputes between you and Ginger in the most expedient and cost effective manner, and except as described in Section 16.2, you and Ginger agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND GINGER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- 16.2 Exceptions. Despite the provisions of Section 16.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- 16.3 Arbitration. Any arbitration between you and Ginger will be settled under the Federal Arbitration Act and administered by the American Arbitration Association ("AAA") under its Consumer Arbitration Rules (collectively, "AAA Rules") as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Ginger. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- 16.4 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail ("Notice of Arbitration"). Ginger's address for Notice is: 116 New Montgomery St Suite 500, San Francisco, CA 94105. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so directly within 30 days after the Notice of Arbitration is received, you or Ginger may commence an arbitration proceeding in accordance with the procedures set forth herein. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Ginger must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Ginger in settlement of the dispute prior to the award, Ginger will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
- 16.5 Fees. If you commence arbitration in accordance with these Terms, Ginger will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Franciso, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Ginger for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
- 16.6 No Class Actions. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND GINGER 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 Ginger agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
- 16.7 Modifications to this Arbitration Provision. If Ginger makes any future change to this arbitration provision, other than a change to Ginger's address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Ginger's address for Notice of Arbitration, in which case your account with Ginger will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- 16.8 Enforceability. If Section 16.6 is found to be unenforceable or if the entirety of this Section 16 is found to be unenforceable, then the entirety of this Section 16 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 17.2 will govern any action arising out of or related to these Terms.
- 17.2 Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Ginger.io submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
- 17.4 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Software Service (the "Additional Terms"). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
- 17.6 Contact Information. The Service is offered by Ginger.io, Inc., located at 116 New Montgomery St Suite 500, San Francisco, CA 94105. You may contact us by sending correspondence to that address or by emailing us at email@example.com.
- 17.7 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
- 17.8 No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
- 17.9 International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
18. Notice Regarding Apple. This Section 18 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Ginger.io only, not with Apple Inc. ("Apple"), and Apple is not responsible for the Software Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Software Service. If the Software Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Software Service. Apple is not responsible for addressing any claims by you or any third party relating to the Software Service or your possession and/or use of the Software Service, including: (a) product liability claims; (b) any claim that the Software Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Software Service and/or your possession and use of the Software Service infringe a third party's intellectual property rights. You agree to comply with any applicable third party terms when using the Software Service. Apple and Apple's subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that: (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.