Essentially, by registering for or receiving services or downloading or using the Ginger.io mobile application (the "App"), you agree to the following:
Ginger.io, Inc. ("Ginger.io") is a technology company that provides a technology platform that includes teleservices communication functionality as well as behavioral analytics. Ginger.io collects data from you, including answers to health-related questions and summarized information that your phone provides, like number of phone calls and texts. Ginger.io never collects the content of your calls or texts.
Ginger.io of California Medical P.C. or an affiliated medical provider (collectively "G.io Medical") is an independent, third-party professional medical corporation that provides healthcare services such as licensed psychotherapy and psychiatry. G.io Medical is a licensed medical provider that can provide medical advice, diagnosis, and/or treatment as applicable. G.io Medical uses Ginger.io's Software to provide healthcare services.
You understand and confirm 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. One such provider is G.io Medical.
By using the services, you give informed consent to the selected teleservices and to the provider of such teleservices. Such consent involves your authorization for the selected services, 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. THIS IS VERY IMPORTANT, AS IT AFFECTS YOUR RIGHTS AND RESPONSIBILITIES UNDER CERTAIN SELECTED TELESERVICES. PLEASE READ BELOW.
YOU AGREE THAT THE APP, ANY COMPONENT OF THE APP, AND ANY INFORMATION MADE AVAILABLE THROUGH THE APP (COLLECTIVELY, OUR "SOFTWARE") ARE NOT INTENDED TO BE USED MEDICAL EMERGENCIES, SELF-DIAGNOSIS OR MEDICAL ADVICE, AND THAT THE SOFTWARE IS SOLELY A TOOL TO BE USED IN CONJUNCTION WITH A TS HEALTHCARE PROVIDER. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN, TS HEALTHCARE PROVIDER OR OTHER QUALIFIED HEALTH PROVIDER REGARDING A MEDICAL CONDITION OR TREATMENT.
1.a. Grant of License. Subject to the terms and conditions of this Agreement, Ginger.io hereby grants to you a personal, non-transferable, non-exclusive, revocable, royalty-free, limited license to install and use the Software on your mobile device for the purposes of inputting responses to surveys and/or participating in a study, program, treatment or services from a designated third-party, a TS healthcare provider, and/or G.io Medical (collectively, the "Institutional Client") and/or tracking and analyzing your mobile interactions for purposes of monitoring, predicting, and/or reporting certain health-related factors to such Institutional Client and/or to you and/or your doctor/healthcare provider and/or to a third party you have authorized to receive it.
1.b. Teleservices. Subject to the terms and conditions of this Agreement, and as selected or used by you, you may have access to the following TS provided by a TS healthcare provider (such as G.io Medical):
tele-coaching, which uses unlicensed personnel with the applicable educational degrees to coach/help you clarify and understand the problem or need for change/improvement; this TS is NOT INTENDED TO, NOR DOES, PROVIDE CLINICAL COUNSELING OR THERAPY, MEDICAL ADVICE, DIAGNOSIS, OR MEDICAL TREATMENT. While this TS 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.
tele-therapy, which uses licensed therapists to provide clinical counseling and/or psychotherapy to address mental, psychological, behavioral or emotional issues/conditions.
tele-psychiatry, which uses licensed medical doctors specializing in psychiatry to address psychological, physical, mental, behavioral or emotional conditions.
Please note that the TS healthcare provider may use social workers, nurse practitioners, or other licensed personnel to provide or supervise call-based, video-based, or text-based services/teleservices as part of the TS, which may include (without limitation) medical referral or emergency call-based services.
1.c. Ginger.io may change or discontinue, temporarily or permanently, any feature or component of the Software and/or TS platform at any time without notice.
1.d. By your use of the TS, you hereby give consent to such services being provided to you.
2.a. Software Use Restrictions. You shall not sublicense, distribute, hypothecate, lease, loan or otherwise convey or transfer the Software or any portion or use thereof to anyone, and under no circumstance may you use or allow the use of the Software in any manner other than as expressly set forth above. You shall not modify the Software, incorporate the Software in whole or in part in any other product or create derivative works based on all or part of the Software. You shall not remove any copyright, trademark, proprietary rights, disclaimer or warning notice(s) included on or embedded in any part of the Software. You shall not use the Software in connection with a service bureau, time sharing or fee-for-service arrangement with third parties.
2.b. TS Use Restrictions. You shall refrain from any abusive, dangerous, or threatening behavior when using the TS. You shall not violate any laws in using the TS. Ginger.io (or G.io Medical) reserves the right to immediately terminate your access to or use of the TS if, in its sole discretion, such behavior is exhibited or you violate or attempt to violate any laws or breach this Agreement. Ginger.io or the applicable TS healthcare provider has the right to contact emergency services to the extent either of them, in its sole discretion, believe that you pose an imminent threat of harm to yourself, to property or to another person.
3. Copying Restrictions. You may copy the Software onto your mobile device, and you may make one (1) copy of the Software for backup or archival purposes. You agree that (i) your use and possession of such copies shall be solely under the terms and conditions of this Agreement, and (ii) you shall place the same proprietary and copyright notices and legends on all such copies as included by Ginger.io on any media embodying an authorized copy of the Software originally provided by Ginger.io. Except as expressly described in this paragraph, you are not permitted to copy the Software.
4. Disclosure Restrictions. You acknowledge that the Software, including the source code for the Software and any information derived therefrom, is proprietary to, and constitutes the intellectual property (including without limitation a valuable trade secret) of, Ginger.io. If you should gain access to such materials, you shall not disclose them to anyone.
6. Privacy Terms. For information about our privacy practices in connection with our services, please read the Privacy Statement The Privacy Statement explains how Ginger.io collects, protects, uses and shares your personally identifiable information in connection with your use of our services. In connection with creating an account or clicking an "I Accept" button or an equivalent indicator with regards to the access and use of Software, you have indicated that you agree to the terms of the Privacy Statement.
7. Communications. Email and text messaging allow us to exchange information with you efficiently in connection with the provision of our services. At the same time, we recognize that email and text messaging are not a completely secure means of communication because these messages can be addressed to the wrong person or accessed improperly while in storage or during transmission. Your use of the Software or our services means that you agree and consent to the use of email and/or text messaging as an acceptable form of communication for the purposes of receiving such services.
8. Login Information and Access. Ginger.io may issue to you, or prompt you to provide, a username/password for login to download, access and use the Software. Ginger.io will protect as confidential any personally identifying information that you may provide to complete the applicable online forms to establish your username/password or account with Ginger.io ("Account Data"), which Account Data shall continue to be owned by you. You agree to provide, maintain and update true, accurate, current and complete Account Data, and represent that you will not misrepresent your identity or your affiliation with any person or entity. Ginger.io and/or the Institutional Client reserve the right to authenticate any information you provide. You shall be responsible for all use and access of the Software by means of usernames/passwords issued to you. You will notify Ginger.io promptly of any unauthorized use of your username/password or account or any other known or suspected breach of security, or other occurrence requiring username/password or account cancellations or changes. Ginger.io cannot and does not assume any responsibility or liability for any information submitted by someone who has fraudulently accessed your account or for any third party's fraudulent use or misuse of information submitted by you. You are solely responsible for providing accurate information so that you can be provided with the appropriate care. Ginger.io and the Institutional Client are not responsible for your failure to provide the information needed to provide you with appropriate care.
9. Feedback. Ginger.io may ask for your feedback regarding your use and evaluation of the Software, including, without limitation, any problems encountered in the Software or TS (the "Evaluation Data"). If such Evaluation Data is provided to Ginger.io, it will be deemed and remain the sole property of Ginger.io, and will not be subject to any obligation of confidence on the part of Ginger.io. Additionally, Ginger.io shall have all ownership, right, title and interest in and to the Evaluation Data and any and all intellectual property and proprietary rights thereto and therein. You hereby transfer and assign to Ginger.io any and all intellectual property rights you may have in and to the Evaluation Data and agree to cooperate with Ginger.io to perfect Ginger.io's sole and exclusive ownership in and title to the Evaluation Data. Complaints can be directed to Ginger.io at the contact information listed below or on our website: www.ginger.io
10. Transfer Restrictions. You may not sublicense, delegate, assign or otherwise transfer this Agreement, the license granted herein, or any other of your rights or obligations under this Agreement, in whole or in part.
11. Export Restrictions. You may not export or re-export any Software except in full compliance with all United States laws and regulations, executive orders and the like, including in particular the Export Administration Regulations of the U.S. Department of Commerce.
13. Enforcement of Terms; Effect of Termination. If you fail to fulfill any of your obligations under this Agreement, Ginger.io and/or its licensors may pursue all available legal remedies available to them. You agree that Ginger.io's licensors are third-party beneficiaries of this Agreement, and may enforce this Agreement as it relates to their intellectual property. Sections 2-5, 6(b) through 6(e), 7(b), 7(c), 9, 10, 11,13, 15 through 25 shall survive any termination or expiration of this Agreement. Upon any termination of this Agreement, your license to use the Software shall terminate and you shall promptly uninstall and remove the Software from the mobile device on which it was installed (and promptly uninstall, delete or destroy your authorized backup or archival copy).
14. U.S. Government Users. (a) If the Software is acquired by or on behalf of civilian agencies of the U.S Government, then, pursuant to FAR Section 12.212 and its successors (48 C.F.R. 12.212), the Government's right to use, reproduce or disclose the Software acquired under this Agreement is subject to the restrictions of this Agreement. If the Software is acquired by or on behalf of agencies or units of the Department of Defense (DoD), then, pursuant to DoD FAR Supplement Section 227.7202 and its successors (48 C.F.R. 227.7202) the Government's right to use, reproduce or disclose the Software acquired under this Agreement is subject to the restrictions of this Agreement. (b) Pursuant to the foregoing, U.S. Government users acknowledge that (i) the Software is commercial computer software, (ii) this Agreement embodies the licenses customarily used by Ginger.io for end user licenses in Software granted to the public, and (iii) the licenses set forth herein shall apply to all possession, use and duplication of the Software by the Government as permitted by applicable law. The contractor/manufacturer is Ginger.io, Inc.
15. Assumption of Risk. The Software 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 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, Ginger.io does not assume any obligation or liability with respect to your health or your physical activity or condition. In no event shall Ginger.io 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 or any activity you undertake in connection with your use of the Software. As between you and Ginger.io, you are solely responsible for your use of the Software and your health and medical condition and treatment related thereto. Ginger.io shall have no liability for any unauthorized disclosure of your personally identifiable information due to your actions or omissions or that of your healthcare provider.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT UNDER TELESERVICES, YOU AGREE THAT: (i) IF YOU ARE IN NEED OF OR ARE SEEKING MEDICAL TREATMENT OR EMERGENCY CARE, YOU SHOULD CONTACT YOUR HEALTHCARE PROVIDER OR CALL 911 IMMEDIATELY; (ii) GINGER.IO DOES NOT PROVIDE MEDICAL TREATMENT, ADVICE, OR DIAGNOSIS AND IS NOT A HEALTHCARE PROVIDER; (iii) 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; (iv) DATA PROVIDED BY GINGER.IO THROUGH THE SOFTWARE IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO REPLACE THE RELATIONSHIP BETWEEN YOU AND YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER; (v) 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; (vi) YOU SHOULD ALWAYS CONSULT A PHYSICIAN IF YOU HAVE ANY QUESTIONS REGARDING A MEDICAL CONDITION; (vii) NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ OR RECEIVED USING THE SOFTWARE; (viii) GINGER.IO HAS NO LIABILITY WITH RESPECT TO ANY SURVEY OR RESEARCH/MEDICAL PROGRAM OR STUDY WITH WHICH YOU MAY BE USING THE SOFTWARE; AND, (ix) GINGER.IO IS NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, EFFECTIVENESS, OR CORRECT USE OF INFORMATION YOU RECEIVE THROUGH OR IS GENERATED BY THE SOFTWARE.
If you do not agree to the terms of this Agreement, stop now and do not use the Software or the applicable TS, including without limitation the tele-coaching TS.
In connection with your use of the Software and the tele-coaching TS, you'll work with a coach who will provide personal support, encouragement and motivation. The coaches 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 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, 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/physician, nurse, or any other medical or clinical healthcare professional.
You agree that Ginger.io shall not be liable to you or to any third party for any unavailability, modification, suspension or discontinuance of any feature or component of the Software or TS.
To the extent Ginger.io provides information from, or links or references to, websites operated by third parties, Ginger.io does not monitor or investigate such websites and Ginger.io is not responsible for the content, functionality, or practices of such websites. Inclusion of links to third party websites does not imply approval or endorsement of the linked website by Ginger.io. If you decide to access these third party websites, you do so at your own risk. You agree that Ginger.io has no liability for any damage or loss of any type that is a result of your use of a third party website.
16. Disclaimer of Warranty. GINGER.IO PROVIDES THE SOFTWARE TO YOU "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT; AND, GINGER.IO HEREBY DISCLAIMS ANY AND ALL SUCH WARRANTIES. GINGER.IO MAKES NO REPRESENTATION OR WARRANTY THAT THE SOFTWARE IS ACCURATE, COMPLETE OR UP-TO-DATE. GINGER.IO MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE USE OF THE SOFTWARE, THE RESULTS THEREFROM, OR THE USE OF ANY DATA (INCLUDING WITHOUT LIMITATION DATA PRODUCED BY THE SOFTWARE) OR INTERACTIONS OF ANY USER. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY GINGER.IO EMPLOYEE, REPRESENTATIVE OR DISTRIBUTOR SHALL CREATE A WARRANTY FOR THE SOFTWARE, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. GINGER.IO'S LICENSORS EXPLICITLY DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SOFTWARE. GINGER.IO DOES NOT WARRANT THAT THE SOFTWARE, OR ACCESS THERETO OR USE THEREOF, WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SOFTWARE WILL MEET ANY END USER'S REQUIREMENTS OR ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY STANDARDS. GINGER.IO DOES NOT WARRANT THAT ANY FUNCTIONALITY, INCLUDING WITHOUT LIMITATION ANY SECURITY MEASURE OR SECURITY FEATURE, PROVIDED HEREUNDER WILL BE ERROR-FREE, UNBREAKABLE, UNBREACHABLE, VIRUS FREE, OR INVIOLATE; AND, END USERS ASSUME THE ENTIRE RISK (AND ARE SOLELY RESPONSIBLE) THAT, NOTWITHSTANDING ANY SECURITY OR OTHER MEASURE THAT MAY BE PROVIDED BY GINGER.IO OR ITS LICENSORS HEREUNDER, THE SOFTWARE AND/OR THE DATA PROCESSED THEREBY MAY BE CORRUPTED, COMPROMISED, INACCESSIBLE OR LOST. THE SOFTWARE IS NOT DESIGNED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, GINGER.IO SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON CERTAIN TYPES OF DAMAGES, SO THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU.
Upon request by us, you agree to defend, indemnify and hold Ginger.io and its partners, affiliates, use providers, licensors, officers, directors, employees and agents harmless from and against any and all losses, liabilities, damages and costs, including but not limited to reasonable legal and accounting fees, arising from any claims, actions or demands related to or alleged to relate to: (a) your violation of this Agreement; or (b) your violation of any intellectual property or other third party rights or any applicable law in connection with your use of the Software. We reserve the right to assume control of the defense of any third party claim that is subject to indemnification by you, in which event you will cooperate with us.
18. Notices. Notices to you hereunder shall be sent to the address provided by you when you registered to download and install the Software.
Notices to Ginger.io shall be sent to:
Ginger.io, Inc. c/o Legal Counsel 332 Pine Street #800, San Francisco, CA 94104
Each party may change such address upon written notice to the other party.
19. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA without regard to its conflicts of laws provision. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. The parties hereby consent to, and hereby agree to submit to, the exclusive jurisdiction and venue in the state courts in San Francisco, CA or any federal court located therein. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover the costs and expenses (including reasonable attorneys' fees) that it incurred in connection with such action or proceeding and enforcing any judgment or order obtained. In the event of a breach, or threatened breach, of this Agreement by you which may harm the intellectual property or proprietary rights of Ginger.io (or its licensors/suppliers), the parties agree that (i) Ginger.io may suffer irreparable harm for which monetary damages may be insufficient as a remedy, (ii) Ginger.io shall be entitled to seek injunctive or other equitable relief, (iii) no bond or surety shall be required to be posted for such relief, and (iv) such relief shall be in addition to any and all other remedies in law or in equity to which Ginger.io may be entitled. Other than the foregoing injunctive or equitable relief, the parties shall seek resolution through binding arbitration using a single arbitrator and the rules promulgated by the American Arbitration Association. The decision of the arbitrator shall be binding on the parties and may be entered into a court of competent jurisdiction. All such arbitration shall be conducted in the jurisdiction set forth above. Other than the foregoing injunctive or equitable relief, the parties agree to waive their right to trial by jury.
20. Complete Agreement; Waiver; Severability. This Agreement contains the complete and entire agreement and understanding of the parties regarding the subject matter hereof, and supersedes all proposals, oral or written, all negotiations, conversations, discussions and all past course of dealing between you and Ginger.io relating thereto. In the event any term of this Agreement is held by a court of competent jurisdiction to be unenforceable, such unenforceability shall not affect the remaining terms of this Agreement in such jurisdiction or render unenforceable or invalidate such terms and provisions of this Agreement in other jurisdictions. Upon such determination that any of the terms or provisions of this Agreement are held to be invalid under any applicable statute or rule of law, they shall be severed from this Agreement and the remaining provisions of this Agreement shall survive and be interpreted so as best to reasonably effect the intent of the parties and the parties agree to replace any invalid or unenforceable provisions in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. Ginger.io's failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision unless such waiver is in writing and signed by Ginger.io.
21.a. INFORMED CONSENT. IF YOU USE THE TELE-THERAPY OR TELE-PSYCHIATRY SERVICES, YOUR USE OF THOSE SERVICES MUST BE THROUGH INFORMED CONSENT FOR TELEHEALTH SERVICES. BY CLICKING AN "I Accept" BUTTON OR AN EQUIVALENT INDICATOR WITH REGARDS TO ACCESS AND USE OF THE SOFTWARE YOU INDICATE YOU GIVE CONSENT TO TELEHEALTH AS AN ACCEPTABLE FORM OF DELIVERING HEALTHCARE SERVICES TO YOU.
21.b. Consent to Electronic Contracting. You agree that execution of this Agreement may occur by your manifesting your acceptance of it when you installed or used the Software, and that no signature on a paper copy of this Agreement is required in order to form a binding contract.
23. No Joint Venture; Independent Contractors. The parties will at all times be independent contractors and will so represent themselves to all third parties. Neither party has granted to the other the right to bind it in any manner whatsoever and nothing herein will be deemed to constitute either party the agent or legal representative of the other nor to constitute the parties as joint venturers.
24. Assignment. Any attempted assignment, sublicense, transfer, encumbrance of this Agreement (or of any of your rights or obligations herein) by you shall be void and shall constitute a material breach of this Agreement. This Agreement shall be binding upon and inure to the benefit of Ginger.io's successors and assigns and shall also be binding upon your successors.
26. Payment. It is your responsibility to know if your health insurance coverage includes telehealth or any of the selected TS. As part of the Software, Ginger.io may provide the functionality through which you pay the selected TS healthcare provider (such as G.io Medical) for the selected TS. Payment for the use of the Software and/or the TS is required and due at the time or point of service. Subscriptions are not refundable, even if you cancel or don't use the services. Therapy and psychiatry services are subject to cancellation fees if you miss a scheduled session and fail to give the required advance notice. Ginger.io and the Institutional Client are not responsible for the patient being reimbursed by their insurance. Payment is due and payable regardless of insurance or reimbursement.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
Last Updated: November 27, 2017