Terms of Use

EmsanaCare’s Terms of Use
LAST UPDATED: February 6, 2023

Please read these terms and conditions of use carefully. By clicking “I accept” and accessing or using the EmsanaCare Service, you agree that you have read and understood the terms, and as a condition of using the EmsanaCare Service you agree to be bound by the terms and conditions described herein and all terms incorporated by reference, including the Messaging Terms of Use, Privacy Policy, HIPAA Notice of Privacy Practices. If you do not agree to all of these terms, do not use the EmsanaCare service.

ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 18, THE ARBITRATION CLAUSE BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND EMSANACARE WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND BY ACCEPTING THESE TERMS OF USE, YOU AND EMSANACARE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND WAIVING ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. 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 18.)

These terms and conditions of use (“Terms of Use”) apply to your access to, and use of, the Website of EmsanaCare, Inc. (“EmsanaCare”), located at emsanacare.com and all related web sites, mobile sites, data files, visualizations, and applications which link to these Terms of Use (the “Sites”) and to all features and services accessed through the Sites, including when you interact with an our services, and as further described in below (collectively the “EmsanaCare Service”). These Terms of Use do not alter in any way the terms or conditions of any other agreement you may have with EmsanaCare, or its subsidiaries or affiliates, for products, services or otherwise.

To the full extent permitted by applicable law, EmsanaCare reserves the right to change or modify any of the terms and conditions contained in the Terms of Use or any policy or guideline of the Sites or the EmsanaCare Service, at any time and at its sole discretion by providing notice the Terms of Use have been modified. Please check these Terms of Use periodically for changes. Such notice may be provided by sending an email, by posting a notice on the Sites, by posting the revised Terms of Use on the Sites and revising the date at the top of these Terms of Use or by such other form of notice as determined by EmsanaCare. If a change to these Terms of Use materially modifies your rights or obligations, we may require that you accept the modified Terms of Use in order to continue to use the EmsanaCare Service. Otherwise, your continued use of these Sites or the Emsana Service following the posting of the revised Terms of Use or other notice of such changes will constitute your acceptance of such changes or modifications. Any changes or modification will be effective within seven (7) days of the posting of the revisions on the Sites unless you notify EmsanaCare within such thirty (30) days that you do not agree to the changes and you stop using the Sites and the EmsanaCare Service.

1. The EmsanaCare Service. Emsana uses proprietary processes and algorithms to provide information to users (“Users”) to assist them in finding and selecting a doctor or other health provider (a “Provider”) on their own behalf or on the behalf of others. The EmsanaCare Service may also include a text messaging, online chat, and email to assist Users in finding and making an appointment with a Provider (the “Care Connector Service”). If you make an appointment through the Care Connector Service, you acknowledge and agree that you are entering into a direct relationship with the Provider. It is solely up to you to verify whether the insurance plan you have will apply to the Provider and the services being provided. You also agree to and acknowledge EmsanaCare’s Messaging Terms and Conditions.

2. Privacy Policy and Notice of Privacy Practices Please refer to EmsanaCare’s Privacy Policy for information on how EmsanaCare collects, uses and discloses personally identifiable information. To read more about our privacy practices that apply specifically to the health and insurance information that we collect with respect to your use of certain features of the EmsanaCare Service, please refer to our HIPAA Notice of Privacy Practices.

3. Eligibility. You must be at least eighteen (18) years old to use the Sites and/or the EmsanaCare Service. By agreeing to these Terms of Use, you represent and warrant to us that: (a) you are at least eighteen (18) years old; (b) you have not previously been suspended or removed from the Sites and/or the EmsanaCare Service; and (c) your registration and your use of the EmsanaCare Service is in compliance with any and all applicable laws and regulations.

4. No Recommendations or Medical Advice; No Tax, Financial or Legal Advice; No Liability for Providers or Estimates. EmsanaCare is not a referral service and neither EmsanaCare nor its contractors or the Care Connectors recommend, endorse, discourage, screen or approve any providers, practices, or any medical procedures, tests, products or services, nor does EmsanaCare provide medical advice, diagnosis, or treatment of any kind. You are solely responsible for selecting and determining the suitability of providers you use or recommend to others and for obtaining any additional information you need to make an informed decision prior to utilizing or recommending any provider, whether or not you obtained information about such provider through the EmsanaCare service and whether or not EmsanaCare assisted in making an appointment with such provider. Any cost or pricing information provided through the EmsanaCare Service, including any information regarding the amounts you or another individual and your or their insurance company might be expected to pay a provider, is an estimate only, based on a variety of factors considered by EmsanaCare and is not intended as a representation or guarantee as to the specific pricing applicable to particular procedures for a given provider. If you have a question regarding a medical condition, you should seek advice and treatment from a qualified health care professional. If you have a medical emergency, call 911 immediately.

In addition, neither EmsanaCare nor its affiliates, contractors, or Care Connectors are providing any federal or state tax advice or financial or legal advice and EmsanaCare is not a healthcare or financial planner or advisor. Please consult your tax or legal advisors for more information about your specific tax, financial or legal situation.

EmsanaCare makes no representations or warranties of any kind regarding, and disclaims all responsibility or liability for: (a) the quality or suitability of any Provider; (b) the advice, treatment or other services rendered and any claims arising therefrom; (c) the results obtained from any Provider; (d) the conduct or actions of any Provider or other third parties from whom you may have received any products or services; (e) the accuracy of any information accessed through the EmsanaCare Service including cost estimates, and insurance coverage; and (f) any third-party products or services selected based on information provided on the Sites or through use of the Care Connector Services.

5. Alerts and Notifications; Consent to Use of Mobile Communications. As part of the EmsanaCare Service, you may (if enabled) receive text messages, alerts, confirmations, emails, or other types of messages from EmsanaCare. You can opt in or out of these messages through the Sites by emailing hello@emsanacare.com (with the exception of important service announcements and administrative messages) or by replying “STOP” via text message. You may continue to receive text messages for a short period of time while we process your request, and you may also receive text messages confirming the receipt of your opt-out request. You consent to EmsanaCare’s communicating with you about the Service in connection with the features, functions and activities contained therein by SMS, text message, email or other electronic means. Your carrier’s normal messaging, data and other rates and fees will apply to these communications.

6. Data Use. Subject to compliance with applicable law, and EmsanaCare’s Privacy Policy, you agree that EmsanaCare and its contractors will have the right to create statistical and other aggregate data based on the data and information obtained in connection with the EmsanaCare Service (the “Derived Data”) and to use the Derived Data for statistical, research, educational, product improvement, and benchmarking purposes, including conducting health outcomes research, creating aggregate medical utilization and quality of care benchmarks, and implementing pharmacoeconomic and health policy studies. EmsanaCare will be the sole owner of all rights in and to the Derived Data.

7. Copyright. Unless otherwise indicated, the Sites and all content and other materials on the Sites, including, without limitation, the EmsanaCare logo, and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, the “Site Materials”) are the proprietary property of EmsanaCare or its licensors or users and are protected by U.S. and international copyright laws. These Terms of Use do not grant Users a license to: (a) any resale or commercial use of the Sites, the Site Materials, or the EmsanaCare Service; (b) the collection and use of any Provider listings, pictures or descriptions; (c) the distribution, public performance or public display of any Site Materials; (d) the modification or other derivative use of the Sites and the Site Materials, or any portion thereof; (e) the use of any data mining, scraping, robots or similar data gathering or extraction methods; (f) the downloading (other than page caching) of any portion of the Sites, the Site Materials or any information contained therein, except as expressly permitted on the Sites; or (g) any use of the Sites, the Site Materials or the EmsanaCare Service other than for their intended purpose. Any use of the Sites or the Site Materials other than as specifically authorized herein, without the prior written permission of EmsanaCare, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.

8. Trademarks. EmsanaCare, the EmsanaCare logos and any other EmsanaCare product or service name or slogan contained in the Sites are trademarks of EmsanaCare, and may not be copied, imitated or used, in whole or in part, without the prior written permission of EmsanaCare or the applicable trademark holder. You may not use any metatags or any other “hidden text” utilizing “EmsanaCare” or any other name, trademark or product or service name of EmsanaCare without EmsanaCare’s prior written permission. In addition, the look and feel of the Sites, including all page headers, custom graphics, buttons, icons and scripts, is the service mark, trademark and/or trade dress of EmsanaCare and may not be copied, imitated or used, in whole or in part, without EmsanaCare’s prior written permission.

You are granted a limited, non-exclusive right to create a text hyperlink to the Sites for non-commercial purposes, provided such link does not portray EmsanaCare or any of its products and services in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use an EmsanaCare logo or other proprietary graphic of EmsanaCare as a link to the Sites without the express written permission of EmsanaCare. Further, you may not use, hot-link to, frame or utilize framing techniques to enclose any EmsanaCare trademark, logo or other proprietary information, including the images found at the Sites, the Site Materials (including any charts or data), and the layout/design of any page or form contained on a page on the Sites without EmsanaCare’s express written consent. Except as noted in Section 7 above, you are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright or proprietary right of EmsanaCare or any third party.

All other trademarks, registered trademarks, product names and company names or logos mentioned in the Sites are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.

9. Third-Party Content

9.1 EmsanaCare may provide, link to or utilize third-party data and other content, on the Sites or in connection with the EmsanaCare Service (collectively the “Third-Party Content”) as a service to those interested in this information. EmsanaCare does not control, endorse or adopt any Third-Party Content and makes no representation or warranties of any kind regarding the Third-Party Content, including without limitation regarding its accuracy, currency, or completeness. EmsanaCare makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party Web sites accessible by hyperlink from the Sites, or Web sites linking to the Sites. Such sites are not under EmsanaCare’s control and EmsanaCare is not responsible for the contents of any linked site or any link contained in a linked site, or any review, changes or updates to such sites. EmsanaCare provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement or adoption by EmsanaCare of any site or any information contained therein. When you leave the Sites, you should be aware that EmsanaCare’s terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Sites.

9.2 You acknowledge and agree that EmsanaCare is not responsible or liable in any manner for any Third-Party Content and undertakes no responsibility to update or review any Third- Party Content. Users use such Third-Party Content and anything derived therefrom at their own risk.

10. Copyright Complaints. If you believe that anything on the Sites infringes upon any copyright which you own or control, you may file a notification of such infringement with EmsanaCare’s Designated Agent as set forth below.

Mailing Address: Copyright Agent, EmsanaCare, Inc, 275 Battery Street, Suite 480, San Francisco, CA 94111
Email: legal@emsanacare.com

Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys’ fees, incurred by EmsanaCare or the alleged infringer as the result of EmsanaCare’s relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.

In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, EmsanaCare has adopted a policy of terminating, in appropriate circumstances and at EmsanaCare’s sole discretion, Users who are deemed to be repeat infringers. EmsanaCare may also at its sole discretion limit access to the Sites and/or terminate the EmsanaCare Service for any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

11. Submissions. You acknowledge and agree that any materials, including but not limited to questions, comments, suggestions, ideas, plans, notes, drawings, images, photos, original or creative materials or other information, regarding EmsanaCare, the Sites, or the EmsanaCare Service, that are provided by you in the form of text, chat, email or other submissions to EmsanaCare, or any postings on the Sites, are non-confidential and shall become the sole property of EmsanaCare. EmsanaCare shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these materials for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

12. User Content and Conduct.

12.1. EmsanaCare Services may include text, online chat areas (“Chat Areas”), in which you create, post or store any content, messages, reviews, materials, text, photos, video, graphics, or other items or materials on the Sites (“User Content”). You are solely responsible for your use of such Interactive Areas and use them at your own risk. You agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Sites any of the following:

User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, false, misleading, fraudulent or otherwise objectionable;
User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law, including, without limitation, the regulations of the U.S. Securities and Exchange Commission or any rules of a securities exchange such as the New York Stock Exchange, the American Stock Exchange or the NASDAQ;
User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting any User Content, you represent and warrant that you have the lawful right to distribute and reproduce such User Content;
User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
Unsolicited promotions, political campaigning, advertising or solicitations;
Private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
Viruses, corrupted data or other harmful, disruptive or destructive files; and
User Content that, in the sole judgment of EmsanaCare, is objectionable, offensive, or which may expose EmsanaCare or its users to any harm or liability of any type.

12.2. You further agree that you are solely responsible for your conduct while on the Sites and in connection with the EmsanaCare Service, and you agree that you will not do any of the following in connection with the Sites, the EmsanaCare Service or its users:

Use the Sites or the EmsanaCare Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Sites or that could damage, disable, overburden or impair the functioning of the Sites in any manner;
Impersonate or post on behalf or any person or entity or otherwise misrepresent your affiliation with a person or entity;
Stalk, intimidate, threaten, or otherwise harass or cause discomfort to EmsanaCare contractors or Care Connectors;
Send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
Harvest or otherwise collect information about users, including email addresses, without their consent;
Scrape the Sites or the EmsanaCare Service or otherwise use any data mining, robots or similar data gathering or extraction methods in connection therewith;
Use the Sites or the EmsanaCare Service for any illegal or unauthorized purpose or engage in, encourage, or promote any illegal activity, or any activity that violates these Terms of Use; or
Circumvent or attempt to circumvent any filtering, security measures or other features EmsanaCare may adopt to protect the Site, the Service, its users or third parties.

12.3. EmsanaCare takes no responsibility and assumes no liability for any User Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, or for any user conduct, nor is EmsanaCare liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. Your use of Chat Areas is at your own risk. Enforcement of the user content or conduct rules set forth in these Terms of Use is solely at EmsanaCare’s discretion, and failure to enforce such rules in some instances does not constitute a waiver of EmsanaCare’s right to enforce such rules in other instances. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Site will not contain any content that is prohibited by such rules. As a provider of interactive services, EmsanaCare is not liable for any statements, representations or User Content provided by its users in any forum, personal page or other Chat Area. Although EmsanaCare has no obligation to screen, edit or monitor any of the Content posted in any Chat Area, EmsanaCare reserves the right, and has absolute discretion, to remove, screen or edit any User Content posted or stored on the Sites at any time and for any reason without notice, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Sites at your sole cost and expense. Any use of the Chat Areas or other portions of the Sites in violation of the foregoing violates these Terms of Use and may result in, among other things, termination or suspension of your rights to use the Chat Areas and/or the Sites.

13. Activation Data and Security. In consideration of your use of the Sites and/or the EmsanaCare Service, if you activate your account, you agree to (a) provide accurate, current and complete information about you, e.g., your name, email address, or other contact information, as may be prompted by any registration forms on the Sites (“Activation Data”); (b) maintain the security of your identification, and you accept responsibility for all activities that occur under your account; (c) maintain and promptly update the Activation Data, and any other information you provide to EmsanaCare, to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Activation Data and any other information you provide to EmsanaCare.

14. Indemnification. You agree to defend, indemnify and hold harmless EmsanaCare, its independent contractors, service providers and consultants, and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to any User Content you post, store or otherwise transmit on or through the Sites or your use of the Chat Areas, including without limitation any actual or threatened suit, demand or claim made against EmsanaCare and/or its independent contractors, service providers, employees, directors or consultants, arising out of or relating to the User Content, your conduct, your violation of these Terms of Use or your violation of the rights of any third party.

15. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY EMSANACARE, THE SITES, THE SITE MATERIALS CONTAINED THEREIN AND THE EMSANACARE SERVICE ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. EMCANACARE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- INFRINGEMENT AS TO THE SITES AND THE EMSANACARE SERVICE, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN. EMSANACARE DOES NOT REPRESENT OR WARRANT THAT THE SITES, THE SITE MATERIALS, OR THE EMSANACARE SERVICE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

EMSANACARE IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS, INCLUDING RELATING TO PROVIDERS. WHILE EMSANACARE ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE SITES AND THE EMSANACARE SERVICES SAFE, EMSANACARE CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SITES OR THE EMSANACARE SERVICE OR ANY PORTION OF THE SITES OR EMSANACARE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SITES OR EMSANACARE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND EMSANACARE DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED; NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SITES AND/OR THE EMSANACARE SERVICE OR EMSANACARE ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITES AND/OR THE EMSANACARE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE EMSANACARE ENTITIES OR THE SITES OR THE EMSANACARE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS OF USE. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SITES AND/OR EMSANACARE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SITES AND/OR THE EMSANACARE 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 SITES AND/OR THE EMSANACARE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.

EMSANACARE RESERVES THE RIGHT TO CHANGE ANY AND ALL CONTENT CONTAINED IN THE SITES AND TO MODIFY, SUSPEND OR DISCONTINUE THE SITES OR THE EMSANACARE SERVICE OR ANY FEATURES OR FUNCTIONALITY THEREOF AT ANY TIME WITHOUT NOTICE AND WITHOUT OBLIGATION OR LIABILITY TO YOU. REFERENCE TO ANY PRODUCTS, SERVICES, PROCESSES OR OTHER INFORMATION, BY TRADE NAME, TRADEMARK, MANUFACTURER, SUPPLIER OR OTHERWISE DOES NOT CONSTITUTE OR IMPLY ENDORSEMENT, SPONSORSHIP OR RECOMMENDATION THEREOF, OR ANY AFFILIATION THEREWITH, BY EMSANACARE.

WHILE EMSANACARE ENDEAVORS TO OBTAIN THE BEST RESULTS FOR USERS AND TO PROVIDE USEFUL TOOLS AND INFORMATION TO ASSIST USERS IN UNDERSTANDING PROVIDER CHOICES, IN NO EVENT DOES EMSANACARE MAKE ANY PROMISES, REPRESENTATIONS OR WARRANTIES OR ANY KIND REGARDING THE EMSANACARE SERVICE.

16. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL EMSANACARE, ITS DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE ANY PROVIDERS, THE SITES, THE EMSANACARE SERVICE, THE SITE MATERIALS, THE USER CONTENT OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SITES, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM EMSANACARE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO EMSANACARE’S RECORDS, PROGRAMS OR SERVICES; AND (B) EXCEPT AS PROVIDED IN SECTION 18, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EMSANACARE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE ANY PROVIDERS, THE EMSANACARE SERVICE, THE SITES, AND THE SITE MATERIALS, EXCEED THE GREATER OF (X) ANY COMPENSATION YOU PAID TO EMSANACARE FOR ACCESS TO OR USE OF THE SITES AND THE EMSANACARE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO A CLAIM, OR (Y) $100. 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 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

17. Applicable Law and Venue. These Terms of Use and your use of the Sites and the EmsanaCare Service shall be governed by and construed in accordance with the laws of the State of California, applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to these Terms of Use shall be filed only in the state and federal courts located in San Francisco County, California and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms of Use.

18. Dispute Resolution and Arbitration; Class Waiver; Waiver of Trial by Jury. Please read the following paragraphs carefully because they require you to arbitrate disputes with EmsanaCare and limit the manner in which you can seek relief from us.

18.1 Generally. In the interest of resolving disputes between you and EmsanaCare in the most expedient and cost effective manner, and except as described in Section 18.2 and 18.3, you and EmsanaCare agree that every dispute arising in connection with these Terms of Use 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 of Use, 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 of Use. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS OF USE, YOU AND EMSANACAREARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

18.2 Exceptions. Despite the provisions of Section 18.1, nothing in these Terms of Use 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.

18.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 18 within 30 days after the date that you agree to these Terms of Use by sending a letter to EmsanaCare, Inc., Attention: Legal Department – Arbitration Opt-Out, 275 Battery Street, Suite 480, San Francisco, CA 94111 that specifies: your full legal name, the email address associated with your use of the EmsanaCare Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once EmsanaCare receives your Opt- Out Notice, this Section 18 will be void and any action arising out of these Terms will be resolved as set forth in Section 17. The remaining provisions of these Terms of Use will not be affected by your Opt-Out Notice.

18.4 Arbitrator. Any arbitration between you and EmsanaCare 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 of Use. 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 EmsanaCare. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

18.5 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”). EmsanaCare’s address for Notice is: EmsanaCare, Inc, 275 Battery Street, Suite 480, San Francisco, CA 94111. 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 within 30 days after the Notice of Arbitration is received, you or EmsanaCare may commence an arbitration proceeding. 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 EmsanaCare 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 EmsanaCare in settlement of the dispute prior to the award, EmsanaCare will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.

18.6 Fees. If you commence arbitration in accordance with these Terms of Use, EmsanaCare 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 Francisco County, 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 EmsanaCare 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.

18.7 No Class Actions. YOU AND EMSABACARE 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 EmsanaCare 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.

18.8 Modifications to this Arbitration Provision. If EmsanaCare makes any future change to this arbitration provision, other than a change to EmsanaCare’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to EmsanaCare’s address for Notice of Arbitration, in which case your account with EmsanaCare will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

18.9 Enforceability. If Section 18.7 or the entirety of this Section 18 is found to be unenforceable, or if EmsanaCare receives an Opt-Out Notice from you, then the entirety of this Section 18 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 17 will govern any action arising out of or related to these Terms of Use.

19. Termination. Notwithstanding any of these Terms of Use, EmsanaCare reserves the right, without notice and in its sole discretion, to terminate your license to use the Sites, and/or the EmsanaCare Service, and to block or prevent future your access to and use of the Sites, and/or the EmsanaCare Service.

Upon termination of these Terms of Use: (a) your license rights will terminate and you must immediately cease all use of the Sites and the EmsanaCare Service; (b) you will no longer be authorized to access the Sites or the EmsanaCare Service; Sections 7, 8, 11, 12, 14, 15, 16, 17, 18, 19, 20.

20. Miscellaneous.

20.1 General Terms. These Terms of Use, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms of Use, are the entire and exclusive understanding and agreement between you and EmsanaCare regarding your use of the Sites or the EmsanaCare Service. You may not assign or transfer these Terms of Use or your rights under these Terms of Use, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms of Use at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms of Use, or any provision of these Terms of Use, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms of Use is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms of Use the use of the word “including” means “including but not limited to”. If any part of these Terms of Use is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

20.2 Additional Terms. Your use of the Sites and/or the EmsanaCare Service is subject to all additional terms, policies, rules, or guidelines applicable to the Sites and to the EmsanaCare Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms of Use.

20.3 Consent to Electronic Communications. By using the Sites and/or the EmsanaCare Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

20.4 Contact Information. The EmsanaCare Service is offered by EmsanaCare, Inc. located at 275 Battery Street, Suite 480, San Francisco, CA 94111. You may contact us by sending correspondence to that address or by emailing us at hello@emsanacare.com.

20.5 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.

20.6 No Support. If you have any question regarding the use of the Sites or the EmsanaCare Service, please contact hello@emsanacare.com.We are under no obligation to provide support for the Sites and/or EmsanaCare Service. In instances where we may offer support, the support will be subject to published policies.

20.7 International Use. The EmsanaCare Service is intended for visitors located within the United States. We make no representation that the EmsanaCare Service is appropriate or available for use outside of the United States. Access to the EmsanaCare Service from countries or territories or by individuals where such access is illegal is prohibited.

Contact Us:

EmsanaCare Legal Department
legal@emsanacare.com
EmsanaCare, Inc.
225 W. Merchandise Mart Plaza
Suite 1230
Chicago, IL 60654

‍