Fern Website Terms of Use

Last Updated: 07.28.2020

Fern’s mission is to build innovative technologies and compassionate services to help break down the barriers to managing pain, and to help guide people toward a pain free life. 

PLEASE READ THESE TERMS OF USE AND OUR PRIVACY POLICY CAREFULLY, AS THEY CONTAIN TERMS AND CONDITIONS THAT IMPACT YOUR RIGHTS, OBLIGATIONS AND REMEDIES IN CONNECTION WITH YOUR USE OF THE FERN SERVICES AND CONTENT. FOR EXAMPLE, THESE TERMS INCLUDE:

  • YOUR OBLIGATION TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS;
  • LIMITATIONS OF OUR LIABILITY TO YOU; AND
  • A REQUIREMENT THAT YOU PURSUE CLAIMS OR SEEK RELIEF AGAINST US (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) EXCLUSIVELY ON AN INDIVIDUAL BASIS PURSUANT TO ARBITRATION.

Introduction and Eligibility

These Terms of Use (“Terms”) govern your access to and use of the Fern Health, Inc. (“Fern,” “we,” and “us”) website, which can be accessed at https://www.fernhealth.com/ (the “Website”), including any subdomains, content, functionality and services offered on or through the Website (collectively, the “Fern Services”). Please read these Terms carefully before using the Fern Services. 

YOUR ACCESS TO AND USE OF THE FERN SERVICES IS CONDITIONED ON YOUR ACCEPTANCE OF AND COMPLIANCE WITH THESE TERMS.

By accessing, browsing, or using the Fern Services, you acknowledge that you have read and agree to be bound by these Terms and our Privacy Policy, found at: https://www.fernhealth.com/privacy-policy/.

Binding Agreement. These Terms constitute a binding agreement between you and Fern. “You” and “users” shall mean all visitors and users of the Fern Services. You accept these Terms each time you access, browse, or use the Fern Services. If you do not accept these Terms, you must not use the Fern Services.

Eligibility. Any use of the Fern Services by anyone under the age of majority in his/her state of residence (the “Age of Majority”) is strictly prohibited. By accessing or using the Fern Services, you represent and warrant that you are at least the Age of Majority. We do not knowingly collect personal information from children under the Age of Majority. If you are under the Age of Majority, do not use or provide any information on the Fern Services or provide any information about yourself to us, including your name, address, telephone number, email address, or any screen name or user name you may use. If we learn we have collected or received personal information from a child under the Age of Majority, we will delete that information. If you believe we might have any information from or about a child under the Age of Majority, please contact us at support@fernhealth.com .

Revision to Terms. We reserve the right to revise these Terms at any time. You should visit this page periodically to review the most current Terms, because you are bound by them if you use the Fern Services. By accessing, browsing and/or using the Fern Services after updates to these Terms have been posted, you agree to be bound by the updated Terms. If we choose to amend these Terms, we will update the “Last Updated” date at the top of these Terms and post the updated version. If the amended Terms are not acceptable to you, your only recourse is to stop using the Fern Services.

The terms “post” and “posting” as used in these Terms shall mean the act of submitting, uploading, publishing, displaying, or similar action on the Fern Services.

  1. Communications

Communications and Service Messages. You agree that we may communicate or provide notices to you in the following ways: 

  1. Through any means, including any telephone number, mobile number, or mailing address you choose to provide to us through the Fern Services.

You agree to keep any contact information you provide to us up to date. You may adjust your communications preferences in accordance with our Privacy Policy or by unsubscribing from marketing emails using the link provided at the bottom of those emails. 

  1. Ownership and Use of Content on the Fern Services

Fern Content Ownership and Use.  The contents of the Fern Services include: all features, functionalities, tools, designs, text, graphics, images, video, information, logos, button icons, software, audio files, computer code, all content thereof (collectively, “Fern Content“). All Fern Content and the compilation (meaning the collection, arrangement, and assembly) of all Fern Content are the property of Fern or its licensors and are protected under copyright, trademark, and other laws.

License Granted by Fern to You.  We authorize you, subject to your compliance with these Terms, a limited non-exclusive, non-transferable, non-assignable and non-sublicensable license to the Fern Services to access and use the Fern Content solely for your personal and non-commercial, non-business purposes, at our discretion. Any other use is expressly prohibited. This license is revocable and modifiable at any time without notice and with or without cause. Unauthorized use of the Fern Content may violate copyright, trademark, and applicable communications regulations and statutes and is strictly prohibited. You must preserve all copyright, trademarks, service marks, and other proprietary notices contained in the original Fern Content on any copy you make of the Fern Content. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Fern or its licensors, except for the licenses and rights expressly granted in these Terms. All rights not expressly granted to you by these Terms are hereby reserved.

Fern Marks. Fern, the Fern logo, and other Fern logos and product and service names are or may be trademarks of Fern (the “Fern Marks”). Without our prior written permission, and except as solely enabled by any link as provided by us, you agree not to display or use in any manner the Fern Marks.

Fern Content and Marks Usage. You may not copy, reproduce, republish, upload, post, create derivative works of, publicly display, transmit, distribute, license, sell, transfer, publicly perform, broadcast, adapt, modify, or otherwise exploit any Fern Content or Fern Marks in any way or for any other purpose unless you get our written permission first. Neither may you add, delete, distort or misrepresent any content on or through the Fern Services.

  1. Copyright Policy

The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials posted on the Fern Services infringe your copyright, you (or your agent) may send Fern a “Notification of Claimed Infringement” requesting that the material be removed or that access to it be blocked. The notice must include the following information.

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of the works that have been allegedly infringed;
  2. Identification of the copyrighted work alleged to have been infringed (or if multiple copyrighted works located on the Fern Services are covered by a single notification, a representative list of such works);
  3. Identification of the specific material alleged to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Fern to locate the material on the Fern Services;
  4. Your name, address, telephone number, and email address (if available);
  5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  6. A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Fern a counter-notice.

Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright for details. Notices and counter-notices with respect to the Fern Services should be sent to:

Fern Health, Inc.

1411 Broadway, 16th Floor

New York, NY 10018

support@fernhealth.com

Consult your legal advisor and see 17 U.S.C. § 512 before filing a notice or counter-notice as there are penalties for false claims under the DMCA.

  1. Suggestions and Submissions

We appreciate and welcome your comments and feedback regarding the Fern Services. Please be advised that if you send us creative ideas, suggestions, inventions, or materials (“creative ideas”), we shall:

  1. Own, exclusively, all now known or later discovered rights to the creative ideas;
  2. Not be subject to any obligation of confidentiality and shall not be liable for any use or disclosure of any creative ideas; and
  3. Be entitled to unrestricted use of the creative ideas for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.
  1. Disclaimers, Limitations, and Prohibitions

We do not represent or guarantee the truthfulness, accuracy, or reliability of any content posted by you or any other third party. You accept that any reliance on such materials will be at your own risk. You are solely responsible for the content you post. Fern does not endorse or accept responsibility for any content posted by you or other third parties on the Fern Services. You are solely responsible for any and all fees or costs you may incur to access the Fern Services through any wireless or other communication service. 

You agree to use the Fern Services only for their intended purposes. You must use the Fern Services in compliance with all privacy, data protection, intellectual property, and other applicable laws. The following uses of the Fern Services are prohibited. You may not:

  1. Engage in any conduct that restricts or inhibits anyone’s use or enjoyment of the Fern Services, or which, as determined by us, may harm us or users of the Fern Services or expose them to liability.
  2. Attempt to interfere with, harm, reverse engineer, steal from, or gain unauthorized access to the Fern Services, user accounts, or the technology (including source codes) and equipment supporting the Fern Services;
  3. Frame or link to the Fern Services without permission;
  4. Use data mining, robots, or other data gathering devices on or through the Fern Services;
  5. Post incomplete, false, or misleading information, impersonate another person, or misrepresent your affiliation with a person or entity;
  6. Post or disclose personal information about another person without their consent;
  7. Harass, threaten, stalk, abuse, or post objectionable content to another Fern user;
  8. Sell, transfer, or assign any of your rights to use the Fern Services to a third party without our express written consent;
  9. Use the Fern Services, Fern Content, or Fern Marks for any commercial purpose or in any manner not permitted by these Terms;
  10. Use the Fern Services in an illegal way or to commit an illegal act in relation to the Fern Services or that otherwise results in fines, penalties, and other liability to Fern or others; 
  11. Access the Fern Services from a jurisdiction where it is illegal or unauthorized; or
  12. .Encourage or enable any other individual to do any of the above.
  1. Consequences of Violating These Terms

Your Liability for Breach of these Terms. Your failure to comply with these Terms may result in suspension or termination of your access to the Fern Services, and may subject you to civil and criminal penalties. You are responsible for any claims, fees, fines, penalties, and other liability incurred by us or others caused by, arising out of, or related to your breach of these Terms and your use of the Fern Services.

We have the right to (i) take appropriate legal action, including, without limitation, referral to law enforcement, for any illegal or unauthorized use of the Fern Services, and (ii) terminate or suspend your access to all or part of the Fern Services, for any or no reason, including, without limitation, any violation of these Terms.

YOU WAIVE AND HOLD US HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY US DURING OR AS A RESULT OF OUR OR LAW ENFORCEMENT AUTHORITY INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER US OR LAW ENFORCEMENT AUTHORITIES.

We assume no liability for any action or inaction regarding transmissions, communications, or content provided by you or anyone else. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

  1. Fern’s Liability

Changes to the Fern Services. We may change, suspend, or discontinue any aspect of the Fern Services, in whole or in part, including any features, functionality, tools, or content thereof, at any time, including hours of operation or availability of the Fern Services or any feature, without notice or liability, in our sole discretion. You agree that Fern has no obligation to provide any updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuance or deletions.

User Disputes. We are not responsible for any disputes or disagreements between you and any third party you interact with using the Fern Services. You assume all risk associated with dealing with third parties. You agree to resolve disputes directly with the other party. You release Fern of all claims, demands, and damages in disputes among users of the Fern Services. You also agree not to involve us in such disputes. Use caution and common sense when using the Fern Services.

Content Accuracy. We make no representations about accuracy, reliability, completeness, or timeliness of any contents of the Fern Services. Similarly, we make no representations about accuracy, reliability, completeness, or timeliness of any data from a third-party service provider or the quality or nature of third-party products or services obtained through the Fern Services. Use the Fern Services at your own risk.

Third-Party Websites. The Fern Services may include links to third party websites and applications. You are responsible for evaluating whether you want to access or use them. We are not responsible for and do not endorse any features, content, advertising, products, or other materials on other websites or applications. You assume all risk and we disclaim all liability arising from your use of them.

Released Parties Defined. “Released Parties” include Fern, Fern’s affiliates, and its and their respective officers, employees, agents, partners, and licensors. Any person or entity released herein is hereby declared to be an intended beneficiary hereunder and shall have standing to enforce such release and discharge.

We make no promises and disclaim all liability of specific results from the use of the Fern Services.

  • DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE FERN SERVICES IS AT YOUR SOLE RISK, AND THE FERN SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED ON THE FERN SERVICES, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) THE RELEASED PARTIES MAKE NO WARRANTY THAT (i) THE FERN SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE FERN SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE FERN SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY GOODS OR SERVICE AVAILABLE ON THE FERN SERVICES WILL MEET YOUR EXPECTATIONS, AND (iv) ANY ERRORS IN THE FERN SERVICES WILL BE CORRECTED; AND (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE FERN SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.

FERN DOES NOT PROVIDE MEDICAL ADVICE. THE INFORMATION AND OTHER CONTENT AVAILABLE ON OR THROUGH THE FERN SERVICES ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. YOU SHOULD ALWAYS CONSULT WITH YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER REGARDING QUESTIONS YOU HAVE ABOUT ANY MEDICAL CONDITION BEFORE MAKING HEALTH CARE DECISIONS. 

IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY. NEVER DELAY IN SEEKING PROFESSIONAL MEDICAL ADVICE OR DISREGARD SUCH ADVICE BECAUSE OF SOMETHING YOU HAVE READ ON THE FERN SERVICES.

RELIANCE ON ANY INFORMATION OR OTHER CONTENT AVAILABLE ON OR THROUGH THE FERN SERVICES OR OTHERWISE PROVIDED BY FERN IS SOLELY AT YOUR OWN RISK.

  • LIMITATION OF LIABILITY AND INDEMNIFICATION

YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE RELEASED PARTIES SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF FERN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE FERN SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE FERN SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON OR THROUGH THE FERN SERVICES; (v) YOUR RELIANCE ON CONTENT MADE AVAILABLE BY US; OR (vi) ANY OTHER MATTER RELATING TO THE FERN SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.

TO THE FULLEST EXTENT POSSIBLE BY LAW, THE RELEASED PARTIES’ MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE FERN SERVICES OR YOUR USE OF FERN CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $100 OR THE AMOUNT YOU PAID FERN, IF ANY, IN THE PAST SIX MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM.

YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FERN AND YOU, AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES ARE FOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

You agree to defend, indemnify, and hold harmless the Released Parties from and against any claims, actions, or demands, including without limitation reasonable legal and accounting fees, alleging, arising out of, or related to (i) your use of or reliance on any third-party content, (ii) your use of or reliance on any Fern Content, (iii) your breach of these Terms or the Privacy Policy, including any violation of national, federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, or (iv) your access to or use of the Fern Services, including any features, functionality, tools, and Fern Content. We shall provide notice to you promptly of any such claim, suit, or proceeding.

  1. General Terms

These Terms constitute the entire agreement between you and Fern concerning your use of the Fern Services. Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. The section titles and annotations in these Terms are for convenience only and have no legal or contractual effect. The English-language versions of these Terms and incorporated agreements, such as the Privacy Policy, contain the binding terms, and any translations into other languages are for convenience only. If the English-language version conflicts with any translation, the English-language version controls. You may not assign, transfer, delegate or sublicense any of your rights or obligations under these Terms, including by operation of law or merger or consolidation, without our express prior written consent, which may be granted or withheld in our sole discretion. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

  1. Equitable Relief

To the extent you have in any manner violated or threatened to violate Fern’s intellectual property rights, Fern may seek injunctive or other appropriate relief in any court of competent jurisdiction wherever located. and you consent to exclusive jurisdiction and venue in such courts.

  1. Arbitration, Class Waiver, and Waiver of Jury Trial

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND FERN HAVE AGAINST EACH OTHER ARE RESOLVED.

These Terms and the relationship between you and Fern shall be governed by the laws of the state of New York without regard to its conflict of law provisions. You agree to first contact Fern at support@fernhealth.com regarding any claim or controversy arising out of or relating to these Terms or your use of the Fern Services. Except as set forth in these Terms, you and Fern agree to submit to the personal and exclusive arbitration of any disputes relating to your use of the Fern Services under the rules of the American Arbitration Association. Any such arbitration, to the extent necessary, shall be conducted in New York County, New York. You covenant not to sue Fern in any other forum. All arbitrations shall be conducted and resolved on an individual basis, and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity.

You also acknowledge and understand that, with respect to any dispute with the Released Parties arising out of or relating to your use of the Fern Services or these Terms:

  • YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY;
  • YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE; AND
  • YOU MUST FILE ANY CLAIM WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE OR IT IS FOREVER BARRED.

Contact Information

Fern Health, Inc.

1411 Broadway, 16th Floor

New York, NY 10018

support@fernhealth.com