Effective Date: June 17, 2019
Fern Health’s mission: for people with pain, we are an ally for better with the right expertise to shape a comprehensive care program that integrates personalized care options into treatment plans to shape improved patient outcomes and decrease employer medical costs.
- Fern Health for Consumers – we are an ally for better with the right expertise to shape a comprehensive care program that fits your lifestyle.
- Fern Health for Employers – we are an ally for better with an intuitive platform that helps employees better manage their benefits to take control of back pain.
Introduction and Eligibility
These Terms include the Fern Health for Consumers Privacy Statement, which is incorporated by reference into these Terms.
This agreement is a legally binding contract. It may change as our business changes, and you agree you will review it and any updates regularly. Your continued use of the Fern Health Services means you accept any changes.
Binding Agreement. These Terms constitute a binding agreement between you and Fern Health, Inc. (“Fern Health,” “we,” “us”). “You” and “users” shall mean all visitors and users of the Fern Health Services. You accept these Terms each time you access the Fern Health Services. If you do not accept these Terms, you must not use the Fern Health Services.
Eligibility. The Fern Health Services are intended solely for persons who are 13 years of age or older. Any access to or use of the Fern Health Services by anyone under age 13 is expressly prohibited. By accessing or using the Fern Health Services, you represent and warrant that you are 13 years old or older. Further, if you are under 18 years of age, you represent and agree that you possess the legal consent of your parent or guardian to access and use the Fern Health Service.
Revision to Terms. We may revise these Terms at any time by posting an updated version. You should visit this page periodically to review the most current Terms, because you are bound by them if you use the Fern Health Services. Your continued use of the Fern Health Service after a change to these Terms constitutes your binding acceptance of these Terms.
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 Health Services.
- The Fern Health Services
The “Fern Health Services” means any websites, applications, and other services under the control of Fern Health, whether partial or otherwise, in connection with providing an online or digital platform to enable patients to manage their own health records and collaborate with their care team.
“Personal Information,” as used in these Terms, shall have the same meaning as defined in the Fern Health for Consumers Privacy Statement.
Medical Advice. Fern Health does not give medical advice. The Fern Health Services may help you organize your comprehensive care programs based on your history and desired outcome, and provide helpful content, but any information and materials available through the Fern Health Services are for informational and educational purposes only and are not intended to constitute professional advice, diagnosis or treatment, or to substitute for your own judgment in consultation with your health care provider. The Fern Health Services are not a substitute for professional medical treatment. You assume full risk and responsibility for the use of information, including your health records, you obtain from or through the Fern Health Services. Always seek the advice of your physician or other qualified health care provider regarding a medical condition. Fern Health does not recommend or endorse any provider of health care or health-related products, items, or services, and does not recommend or endorse any specific tests, procedures, treatments, opinions, products, or other health-related services.
Permission to Use the Fern Health Services. We grant you permission to use the Fern Health Services subject to the restrictions in these Terms. Through the Fern Health Services you can post content related to your health care, utilize tools and other features of the Fern Health Services to organize and manage your health information to coordinate your care. Your use of the Fern Health Services is at your own risk, including the risk that content that you or others contribute to your health record is inaccurate or unreliable or that your records may be misused or misappropriated by someone with whom you provide access.
- Your Account
Account Registration. In order to use the Fern Health Services, you must register to create a Fern Health account. You agree to provide accurate, current, and complete information during the registration process and to update such information to keep it accurate, current, and complete.
Your Login Credentials. To use the Fern Health Service, you will log in with your email address and a password of your choosing. Your login information and account is personal to you, and you may not share your account information with, or allow access to your account by, any third party. As you will be responsible for all activity that occurs under your access credentials, you agree to use reasonable efforts to prevent unauthorized access to or use of the Fern Health Services and any device that you use to access the Fern Health Services. You are responsible for safeguarding your password. If you forget your password, you will be asked to create a new one.
You agree to notify us immediately of any breach in secrecy of your login credentials. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify Fern Health by email to firstname.lastname@example.org. You will be solely responsible for the losses incurred by Fern Health and others due to any unauthorized use of your account.
Communications and Service Messages. You agree that we may communicate or provide notices to you in the following ways:
- By email to the email address you use to log in to your account;
- Through banner notices, push notifications, in-app messages or other messages delivered on or through the Fern Health Services; or
- Through other means including any telephone number, mobile number, or mailing address you choose to provide to us.
You agree to keep any contact information you provide to us up to date. You may adjust your communications preferences in your Fern Health account settings at any time or by unsubscribing from marketing emails using the link provided at the bottom of those emails.
Electronic Notices. By using the Fern Health Services or providing Personal Information to us, you agree that we may communicate with you electronically regarding security, privacy, and administrative issues relating to your use of the Fern Health Services. If we learn of a security system’s breach, we may attempt to notify you electronically by posting a notice on the Fern Health Services or sending an email to you. You may have a legal right to receive this notice in writing. To receive free written notice of a security breach (or to withdraw your consent from receiving electronic notice), please write to us at email@example.com.
- Ownership and Use of Records and Content on the Fern Health Services
Records. We do not claim ownership rights in the health information, text, files, data, images, photos, video, sounds, links, works of authorship, or any other materials that you, or third parties with your authorization, post to or share via the Fern Health Services (collectively, “Records”). We make no representations with respect to such Records. By posting or requesting Records through the Fern Health Services, you certify that you have the right to post or request such Records and/or that you have obtained all required consents to post or access such Records (including the provision to Fern Health of Personal Information about third parties), and you agree to access and use them only as permitted by applicable law. In addition, you acknowledge that certain providers of Records may have the right to revoke the use of Records provided to you under certain circumstances, including without limitation where the wrong Records have been provided, and you agree to delete any such Records upon request. Notwithstanding patients’ rights in their Records, providers or other third parties may have rights to those Records under applicable law.
You are responsible for backing up any Records that you store on the Fern Health Services. If you close your Fern Health account or if we terminate your Fern Health account or discontinue the Fern Health Services, we may permanently delete your data from our servers. We have no obligation to return Records to you in such instances.
Fern Health Content Ownership and Use. The contents of the Fern Health Services include: designs, text, graphics, images, video, information, logos, button icons, software, audio files, computer code, and other content (collectively, “Fern Health Content”). All Fern Health Content and the compilation (meaning the collection, arrangement, and assembly) of all Fern Health Content are the property of Fern Health or its licensors and are protected under copyright, trademark, and other laws.
License Granted By You to Fern Health. By making available any Records on or through the Fern Health Services, you grant and agree to grant to Fern Health a perpetual, non-exclusive license to use such Records (a) in order to provide the Fern Health Services to you; (b) for statistical use (provided that such Records are not personally identifiable); and (c) as necessary to monitor and improve the Fern Health Services.
Sharing with and Use of Records by Third Parties. You control who may access your Records. If you share your some or all of your Records, then you agree that anyone you have shared such Records with may use that content. When you give others access to your Records through the Fern Health Services, they may use, reproduce, distribute, display, transmit, and communicate those Records to others. You should only share or give access to your Records to others that you trust to keep those Records confidential.
License Granted by Fern Health to You. We authorize you, subject to these Terms, to access and use the Fern Health Services and the Fern Health Content solely for your personal and non-commercial purposes, at our discretion. Any other use is expressly prohibited. This license is revocable at any time without notice and with or without cause. Unauthorized use of the Fern Health 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 Health Content on any copy you make of the Fern Health Content.
Fern Health Marks. Fern Health, the Fern Health logo, and other Fern Health logos and product and service names are or may be trademarks of Fern Health (the “Fern Health 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 Health Marks.
Except as provided within these Terms, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any content appearing on or through the Fern Health Services.
- 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 Health Services infringe your copyright, you (or your agent) may send Fern Health 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.
- A physical or electronic signature of a person authorized to act on behalf of the owner of the works that have been allegedly infringed;
- Identification of the copyrighted work alleged to have been infringed (or if multiple copyrighted works located on the Fern Health Services are covered by a single notification, a representative list of such works);
- Identification of the specific material alleged to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Fern Health to locate the material on the Fern Health Services;
- Your name, address, telephone number, and email address (if available);
- 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
- 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 Health 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 Health Services should be sent to:
1411 Broadway, 16th Floor
New York, NY 10018
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.
- Suggestions and Submissions
We appreciate and welcome your comments and feedback regarding the Fern Health Services. Please be advised that if you send us creative ideas, suggestions, inventions, or materials (“creative ideas”), we shall:
- Own, exclusively, all now known or later discovered rights to the creative ideas;
- Not be subject to any obligation of confidentiality and shall not be liable for any use or disclosure of any creative ideas; and
- Be entitled to unrestricted use of the creative ideas for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.
- Disclaimers, Limitations, and Prohibitions
We do not represent or guarantee the truthfulness, accuracy, or reliability of any content or Records 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 Records you post. Fern Health does not endorse or accept responsibility for any Records posted by you or other third parties on the Fern Health Services. You assume all risks associated with your Records, including anyone’s reliance on their quality, accuracy, or reliability. You are solely responsible for any and all fees or costs you may incur to access the Fern Health Services through any wireless or other communication service.
You agree to use the Fern Health Services only for their intended purposes. You must use the Fern Health Services in compliance with all privacy, data protection, intellectual property, and other applicable laws. The following uses of the Fern Health Services are prohibited. You may not:
- Attempt to interfere with, harm, reverse engineer, steal from, or gain unauthorized access to the Fern Health Services, user accounts, or the technology and equipment supporting the Fern Health Services;
- Frame or link to the Fern Health Services without permission;
- Use data mining, robots, or other data gathering devices on or through the Fern Health Services;
- Post incomplete, false, or misleading information, impersonate another person, or misrepresent your affiliation with a person or entity;
- Post or disclose Personal Information about another person without their consent;
- Harass, threaten, stalk, abuse, or post objectionable content to another Fern Health member;
- Sell, transfer, or assign any of your rights to use the Fern Health Services to a third party without our express written consent;
- Use the Fern Health Services or Fern Health Content for any commercial purpose or in any manner not permitted by these Terms;
- Use the Fern Health Services in an illegal way or to commit an illegal act in relation to the Fern Health Services or that otherwise results in fines, penalties, and other liability to Fern Health or others;
- Access the Fern Health Services from a jurisdiction where it is illegal or unauthorized; or
- .Encourage or enable any other individual to do any of the above.
- Account Termination, Removal of Records, and Consequences of Violating These Terms
Account Termination. We reserve the right to suspend or terminate your account and prevent access to the Fern Health Services for any reason, at our discretion. We reserve the right to refuse to provide the Fern Health Services to you in the future.
Removal of Records. Fern Health may review and remove any Records at any time for any reason, including activity which, in its sole judgment: violates these Terms; violates applicable laws, rules, or regulations; is abusive, disruptive, offensive or illegal; or violates the rights of, or harms or threatens the safety of, users of the Fern Health Services.
Your Liability for Breach of these Terms. 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 Health Services.
- Fern Health’s Liability
Changes to the Fern Health Services. We may change, suspend, or discontinue any aspect of the Fern Health Services at any time, including hours of operation or availability of the Fern Health Services or any feature, without notice or liability.
User Disputes with Third Parties. We are not responsible for any disputes or disagreements between you and any third party you interact with using the Fern Health Services, including disputes with your employer and disputes with third-party health care providers. You assume all risk associated with dealing with third parties. You agree to resolve disputes directly with the other party. You release Fern Health of all claims, demands, and damages in disputes with your employer and/or third parties, whether or not related to your use of the Fern Health Services. You also agree not to involve us in such disputes. Use caution and common sense when using the Fern Health Services.
Content Accuracy. We make no representations about accuracy, reliability, completeness, or timeliness of any contents of the Fern Health 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 Health Services. Use the Fern Health Services at your own risk.
Third-Party Websites. The Fern Health 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 Health, Inc., and their affiliates, officers, employees, agents, partners, and licensors.
We make no promises and disclaim all liability of specific results from the use of the Fern Health Services.
- DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE FERN HEALTH SERVICES IS AT YOUR SOLE RISK, AND THE FERN HEALTH 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 HEALTH SERVICES, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) THE RELEASED PARTIES MAKE NO WARRANTY THAT (i) THE FERN HEALTH SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE FERN HEALTH SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE FERN HEALTH SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY GOODS OR SERVICE AVAILABLE ON THE FERN HEALTH SERVICES WILL MEET YOUR EXPECTATIONS, AND (iv) ANY ERRORS IN THE FERN HEALTH SERVICES WILL BE CORRECTED; AND (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE FERN HEALTH 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.
- 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 HEALTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SITE; (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 HEALTH 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 HEALTH SERVICES; (v) YOUR RELIANCE ON CONTENT MADE AVAILABLE BY US; OR (vi) ANY OTHER MATTER RELATING TO THE FERN HEALTH 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 HEALTH SERVICES OR YOUR USE OF FERN HEALTH CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $100.
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 Health Content, or (iii) your breach of these Terms, including but not limited to any breach of your duty to maintain the confidentiality and integrity of shared Records and to use or disclose such shared Records only as authorized by their owner. We shall provide notice to you promptly of any such claim, suit, or proceeding.
- General Terms
These Terms constitute the entire agreement between you and Fern Health concerning your use of the Fern Health 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 the Terms and incorporated agreements, such as the Fern Health for Consumers Privacy Statement, 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.
- Arbitration, Class Waiver, and Waiver of Jury Trial
These Terms and the relationship between you and Fern Health 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 Health at firstname.lastname@example.org regarding any claim or controversy arising out of or relating to these Terms or your use of the Fern Health Services. You and Fern Health agree to submit to the personal and exclusive arbitration of any disputes relating to your use of the Fern Health 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 Health in any other forum.
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 Health 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.
Fern Health, Inc.
1411 Broadway, 16th Floor
New York, NY 10018