TERMS OF SERVICE
Date of Last Revision: July 13, 2023
Garner Health Technology, Inc. and its affiliates (collectively, “Garner,” “we,” “us,” “our”) provides certain services (described below) to you through its website located at www.getgarner.com (the “Site”) or other websites maintained by us, and through our mobile applications (the “Mobile App”) and related technologies, including any updated or new features, functionality and technology (collectively, with the Site, Mobile App, and any other related services, the “Service”), subject to the following terms of service (as amended from time to time, these “Terms of Service”). Please read these Terms of Service carefully, because they are a binding agreement between You and Garner. By accessing or otherwise using any part of the Service, you acknowledge that you have read, understand, and agree to be bound by these Terms of Service. If you do not accept the terms and conditions of these Terms of Service, please immediately cease all access to, and use of, the Service.
We reserve the right, at our sole discretion, to change or modify any portion of these Terms of Service at any time. If we do this, we will post a new version of the Terms of Service on this page and update the “Date of Last Revision”. Where required by applicable law, we will also notify you, either through the Service user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Service or changes made for legal reasons will be effective immediately. You should periodically visit this page to review the current Terms of Service so you are aware of any revisions. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
THESE TERMS OF SERVICE CONTAIN AN AGREEMENT TO ARBITRATE, AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THIS AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST GARNER ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
Access and Use of the Service
Services Description: The Service provides a web and mobile-based platform through which users can search for and identify relevant health care providers in different specialties and geographic areas (as discussed further below), access and use the Concierge Services (as defined below), and manage their HRA (as defined below). Your ability to access certain aspects or features of the Service may vary, depending on the relationship and scope of services that you or your (or your family members’s) employer has with or contract to obtain from Garner. Garner makes no representation or warranty that any aspect or feature of the Services described herein will be available to you.
Finding Health Care Providers: Users can search for and identify health care providers (“Providers”) in their insurance network and/or geographic area, in different specialties or that provide specific services, or that can address specific symptoms users may be experiencing. We will display Providers that we have determined to be the most effective, based on our analysis of data concerning clinical outcomes and intervention practices.
Concierge Service: Users can communicate with representatives from Garner via the chat function provided by the Service, or by telephone call, to receive help searching for and identifying appropriate health care providers in your insurance network and/or geographic area. We can help recommend a Provider based on the symptoms or health care needs you describe.
HRA Services: Users can manage their Health Reimbursement Arrangement (“HRA”) benefit provided by their (or their family members’s) employer. Users may be able to submit documentation for their eligible medical expenses under the HRA terms. A User’s eligibility for reimbursement may be dependent on his or her use of Providers. Note that you may be penalized for any fraudulent claims for reimbursements. Please refer to your HRA plan documentation provided by your (or your family member’s) employer for more information about your HRA account and Garner’s related services. We reserve the right to modify, suspend or discontinue, temporarily or permanently, any HRA benefits or account access from time to time with prior notice to you, subject to the terms of your HRA plan.
No Treatment Offered by Garner; Medical Disclaimer: Garner is not authorized to provide services requiring professional licensure, does not offer any medical treatment or perform any clinical health services, and does not provide any medical advice. NO HEALTH CARE PROVIDER/PATIENT RELATIONSHIP IS CREATED BETWEEN GARNER AND AN INDIVIDUAL WHEN AN INDIVIDUAL USES THE SERVICE.
The Service is not intended or implied to be a substitute for professional medical diagnosis or treatment. You are encouraged to confirm any information or advice obtained from or through the Service with other sources, and review all information and advice regarding any medical condition or treatment with your primary care physician or other health care professional. All Content (as defined below) contained on or available through the Service is for general information purposes only. Garner makes no representation and assumes no responsibility for the accuracy of information contained on or available through the Service, and such information is subject to change without notice. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY SEEKING MEDICAL TREATMENT BECAUSE OF SOMETHING YOU HAVE READ ON OR ACCESSED THROUGH THE SERVICE.
IF YOU THINK YOU OR SOMEONE USING THE SERVICE MAY HAVE A MEDICAL EMERGENCY, CALL A DOCTOR OR YOUR LOCAL EMERGENCY NUMBER IMMEDIATELY.
Health Related Content: Health-related information, data, software, photographs, graphics, videos, text, images, typefaces, sounds and other material included in the Service or otherwise available on or via the Service may describe general principles of health care, but should not be construed as specific instructions for individual patients. Any such Health-related Content is for reference only and should not be used to determine treatment for specific medical conditions—only a health care provider should do that. You understand and agree that in no event will Garner be liable for any decision made or action taken in reliance on such general information contained thereon, and reliance thereon is solely at your own risk.
GARNER IS NEITHER RESPONSIBLE NOR LIABLE FOR ANY ACTION OR INACTION BY ANY HEALTH CARE PROVIDER IDENTIFIED OR RECOMMENDED VIA THE SERVICE, OR ANY MEDICAL OR HEALTH PROCEDURE, ADVICE, SERVICES, ANALYSIS OR INFORMATION THAT IS IDENTIFIED, RECOMMENDED, SCHEDULED, OR ACCESSED THROUGH THE SERVICE.
Providers: You understand and agree that Garner: (a) does not direct, have any control over, employ, or endorse any Providers and has no control over the acts or omissions of any Providers; (b) is not responsible or liable in any manner for the performance or conduct of any Providers; (c) makes no representations, warranties or guarantees about the quality, suitability, safety or legality of the services provided by any Provider, the qualifications, identity or background of any Providers or about your interactions or dealings with any Providers; (d) does not vet, screen or conduct any kind of identity or background checks of any Providers; and (e) is not responsible for payment for services furnished by any Provider. You should exercise caution and perform your own independent assessment of Providers before receiving care from any Providers. You should independently verify that a Provider is in your insurance network and/or their geographical proximity to you. By using the Service, you acknowledge and agree that you are solely responsible for your use of the Service and, as between you and Garner, the communication you have with, and any care or services, you may receive from, any Provider, and any payment you may owe to any Provider.
Network Status of Providers: Garner aims to only recommend Providers that are in-network with your insurance, but since insurance companies change their networks on a regular basis, we always recommend verifying that a Provider is still in-network with your plan on or before the day of service. We also encourage you to confirm that all of the services (e.g., procedures, tests) are covered by your insurance, as your HRA won't cover out-of-network costs. You acknowledge that we do not provide any guarantee or warranty that the information provided as part of the Service will in all cases be accurate or up-to-date, and you agree not to hold Garner responsible for any out-of-network costs that are not covered by your insurance or your HRA, regardless of the network status information provided as part of the Service.
Plan/Benefit Information: The Service may also provide information related to your health plan or benefits. While Garner aims to provide information that is accurate and up-to-date, we do not provide any guarantee or warranty that such information is accurate, complete, or up-to-date, and we recommend confirming all plan or benefit information with the provider of such plan or benefit(s). You agree that you will not rely on any plan or benefit information provided in the Service.
Registration: You are required to register with Garner via the Site or Mobile App in order to access and use certain features of the Service. Users are only eligible to register for an account and/or use the Service if they are a participating and eligible employee (or eligible dependent of such an employee) of an employer that has separately contracted with Garner to provide the Service to its participating and eligible employees (and their eligible dependents). If you are a dependent of an eligible and participating employee, you may only be able to create an account if the participating employee has first registered with Garner. Garner may delay your registration or take other actions as needed to validate or authenticate your account and eligibility. For more information about your eligibility, contact your employer’s human resources and benefits department.
User Account, Password and Security: When creating your account, you represent and warrant that you will provide accurate and complete information. You are expected to use “strong” passwords (passwords that use a combination of upper and lowercase letters, numbers and symbols) with your account. You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account, even if due to misuse or any unauthorized access. You must exercise caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. You understand and agree that your account is personal to you and you agree not to provide any other person with access to the Service using your username, password, or other security information. You also agree to ensure that you logout from your account at the end of each session. You agree to immediately notify Garner of any unauthorized use of your password or account or any other breach of security. Garner will not be liable for any loss or damage arising from your failure to comply with this paragraph.
Modifications to Service: Garner reserves the right to suspend, limit, condition, modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Garner will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service regardless of the reason for such modification, suspension or discontinuance.
Email Communications: You agree that in order to facilitate use of the Service and for your convenience, Garner may communicate with you via email if you request or direct that we do so, or if you initiate email communication with us. You acknowledge that such email communications may include your personal health information, may not be encrypted, and may be viewed by others with access to your email account.
Registering for an Account: In order to register for an account or to receive reimbursements as part of your HRA account, you may be required to submit certain financial information at the time of registration.
Reimbursement Method: To the extent you are eligible for reimbursement pursuant to the terms of your HRA plan and Garner receives your reimbursement request via an appropriate channel and with sufficient detail for Garner to process the reimbursement request, Garner will send you (or your Provider, to the extent applicable) the appropriate reimbursement amount. Payment method options to you may include payment via check to your mailing address, or via direct payment/ACH. You authorize Garner to automatically pay using the relevant payment method for the full amount due to you or your Provider pursuant to your HRA plan on a recurring basis (if applicable) until you update your account with an alternative, authorized payment method as required or permitted by Garner. You represent and warrant to Garner that such information is true, complete and accurate, and that you are authorized to use the payment instrument. You agree to promptly contact Garner and to otherwise update your account if any such information needs to be updated, and you further agree that Garner will not be responsible for any non-payment or late payment of any reimbursement due to your failure to comply with these Terms of Service.
If Garner determines that you received an overpayment from the HRA, or if you receive an erroneous payment from the HRA, you may be required to refund the overpayment. If you do not refund the overpayment or erroneous payment, this amount may be offset from your future reimbursements, or, as implemented by your employer, withheld from your pay, if permitted by applicable Law. For more information about overpayments and/or erroneous payments, please review your HRA plan documentation.
If you dispute any payments, or refunds you owe, you must let Garner know by the earlier of (i) the date that is one hundred and eighty (180) days after the date Garner submitted such payment or you are notified about such refund, or (ii) the date that is ninety (90) days after the end of the plan year that the payment is associated with, whichever is earlier.
Not Insurance or a Substitution for Insurance
Nothing in the Services is intended to constitute insurance, an insurance contract, or an offer to insure, and no aspect of the Services takes the place of insurance obtained or obtainable by you. Garner reserves the right to modify, suspend or terminate your access to the Services generally, or in any jurisdiction, at any time, in its sole discretion, if: (i) the Services are construed to be an offer to insure or constitute insurance or an insurance contract or insurance service agreement by any governmental or regulatory authority in any jurisdiction; (ii) Garner is required to obtain a license or permit of any kind to continue to provide the Services in any jurisdiction; or (iii) Garner determines or a court or arbitrator holds that these these Terms of Service, or the Services, violate applicable law. If Garner modifies or terminates these Terms of Service or the Services in accordance with the foregoing, Garner will process all reimbursement requests submitted prior to or as of the effective date of such modification or termination unless such processing is prohibited by law, regulation, ordinance, order, or decree of any governmental or other authority.
Health Savings Accounts (HSAs) and Health Flexible Spending Accounts (FSAs)
If you are enrolled in a major medical health plan (for example, your employer-sponsored group health plan) that is a high deductible health plan (HDHP), as defined by the Internal Revenue Service, then the HRA will not reimburse any expenses that you incur before you reach the minimum statutory deductible during the plan year for your HDHP, as set by the Internal Revenue Service. This minimum statutory deductible may change from year to year and your Employer, as Plan Administrator, provides its employees with information on the current minimum statutory deductible during open enrollment as well as upon request. If you are enrolled in a HDHP and it is offered by your Employer alongside an HSA, by using the Services you certify that you will not submit expenses for reimbursement from the HRA that were incurred before you have met the minimum statutory deductible for your plan year. Additionally, you may not be reimbursed for the same medical expense by both your HSA and the HRA. If you have a health Flexible Spending Account (FSA), then special rules apply to your use of the HRA. Importantly, you may not be reimbursed for the same medical expense by both your FSA and the HRA. If you have already incurred expenses from Providers, then you are encouraged to use your HRA coverage, if available, rather than your FSA coverage.
Conditions of Access and Use
User Conduct: You are solely responsible for all code, content, images, information, data, text, software, photographs, graphics, messages or other materials (“Content”) that you upload, share, input, post, publish, email, display or otherwise transmit (hereinafter, “share”) via the Service (collectively, the “User Content”). The following are examples of the kind of Content and/or use that is illegal or prohibited by Garner. Garner reserves the right to investigate and take appropriate legal action against anyone who, in Garner’s sole discretion, violates this provision, including without limitation, removing the offending Content from the Service, suspending or terminating the account of such violators and reporting you to law enforcement authorities. You agree to not use the Service to:
share any Content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any Law or under contractual or fiduciary relationships; (iii) contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) is illegal, offensive, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; (vi) is false, misleading, or otherwise deceptive; or (vii) in the sole judgment of Garner, may expose Garner or its users to any harm or liability of any type;
interfere with or disrupt the Service or servers or networks connected to the Service, or disobey or violate any requirements, procedures, policies or regulations of networks connected to the Service;
violate any applicable Law;
impersonate any person or entity, or falsely state or misrepresent your affiliation with a person or entity;
harvest or collect email addresses or other contact information or personally identifiable information of other users of the Service;
take any action that imposes, or may impose, as determined in our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
copy or store any significant portion of the Service Content;
further or promote any criminal activity or enterprise;
circumvent, remove, alter, deactivate, degrade, or thwart any of the Content protections in or geographic restrictions on any Content (including Service Content, as defined below) available on or through the Service, including through the use of virtual private networks, or by bypassing measures preventing or restricting access to the Service or Service Content; or
engage in or use any data mining, robots, scraping, or similar data gathering or extraction methods.
If you are blocked by Garner from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address or virtual private network).
We assume no liability for any action or inaction regarding Content that is Shared by any user or third party.
Special Notice for International Use; Export Controls: Software (defined below) which may be available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export Laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local Laws regarding your use of the Service, including as it concerns online conduct and acceptable content. The Service may not be used or otherwise provided or made available, either directly or indirectly, (a) in Cuba, Iran, North Korea, Syria, Crimea region of Ukraine, or any other country subject to U.S. trade sanctions, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Table of Denial Orders. You agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list and that you will not share the Service with anyone whose status is described in items (a) or (b) above. You acknowledge and agree that your access to the Services, or any portion thereof, may be restricted if you attempt such access from a location outside of the United States.
Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or share for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is solely for your personal, non-commercial use.
Mobile Services and Software
Mobile Services: The Service includes certain services that are available via a mobile device, including (a) the ability to share Content to the Service via a mobile device, (b) the ability to browse the Service and the Site from a mobile device, and (c) the ability to access certain features and Content through the Mobile App (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates, and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
Text Service: By using the Service, you consent to accept and receive informational communications from us to the contacts you provide to us in connection with your account, including via prerecorded calls, automated emails, SMS and/or MMS messages sent through an automated telephone dialing system, push notifications and other means (if applicable) (“Text Service”), even if you have opted in to the National Do Not Call List, any state Do Not Call List, or the internal Do Not Call List of any company. You may be required to respond to an initial message as instructed to complete your registration and confirm enrollment in the Text Service. You do not have to participate in the Text Service in order to use the Service. In the event you no longer want to participate in the Text Service, you agree to notify us directly. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Garner account information to ensure that your messages are not sent to the person that acquires your old number.
There is no additional charge for the Text Service, but your mobile carrier’s or other service provider’s standard message and data rates may apply to any messages you send or receive through the Text Service, including confirmations and subsequent texts. Your carrier may prohibit or restrict certain mobile features and certain mobile features may be incompatible with your carrier or mobile device. We are not liable for any delays in the receipt of, or any failures to receive, any SMS or MMS messages, or other communications, as delivery is subject to effective transmission by your mobile carrier or other service provider and compatibility of your mobile device. Please contact your mobile carrier or other service provider if you have any questions regarding these issues or your mobile data and messaging plan or services.
As described in the Text Service enrollment and welcome messages, you may text “STOP” to cancel such communications as you are not required to consent to the Text Service as a condition of using the Service. You can also text “HELP” for customer support information. If you choose to cancel your Text Service, you agree to receive a final text message from the Text Service confirming your cancellation.
If you would like to opt out of all communications from us, including information, communications, updates and reminders about your account and your use of the Service, please contact email@example.com, however, you acknowledge that this may affect your ability to effectively use the Service.
Mobile App License: Subject to these Terms of Service, Garner hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to (a) install the Mobile App on one mobile device and (b) use the Mobile App for your own personal use solely to access and use the Service. For clarity, the foregoing is not intended to prohibit you from installing the Mobile App for another device on which you also agreed to these Terms of Service. Each instance of the Terms of Service that you agree to in connection with downloading a Mobile App grants you the aforementioned rights in connection with the installation and use of the Mobile App on one device.
Apple-Enabled Software: With respect to Mobile Apps that are made available for your use in connection with an Apple-branded product (the “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
Garner and you acknowledge that these Terms of Service are concluded between Garner and you only, and not with Apple Inc. (“Apple”), and that as between Garner and Apple, Garner, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the “Usage Rules” set forth for Apple-Enabled Software in, or otherwise be in conflict with, the then-current Apple Media Services Terms and Conditions.
Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS product that you own or control, as permitted by the “Usage Rules” set forth in the Apple Media Services Terms and Conditions.
Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty, which will be Garner’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
Garner and you acknowledge that Garner, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including: (a) product liability claims; (b) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
In the event of any third-party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Garner and Apple, Garner, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
You represent and warrant that (a) you are not, and will not be, located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Garner as follows:
By mail: Garner Health Technology, Inc.
Attn: Mobile Apps
64 Bleecker Street #103
New York, NY 10012
By email: firstname.lastname@example.org
Garner and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third-party beneficiary thereof.
Google-Sourced Software: The following applies to any Mobile App you download from the Google Play Store (“Google-Sourced Software”): (a) you acknowledge that these Terms of Service are between you and Garner only, and not with Google, Inc. (“Google”); (b) your use of Google-Sourced Software must comply with Google’s then-current Google Play Terms of Service; (c) Google is only a provider of Google Play where you obtained the Google-Sourced Software; (d) Garner, and not Google, is solely responsible for Garner’s Google-Sourced Software; (e) Google has no obligation or liability to you with respect to Google-Sourced Software or these Terms of Service; and (f) you acknowledge and agree that Google is a third-party beneficiary to this Agreement as it relates to Garner’s Google-Sourced Software.
Software: The technology and software underlying the Service, including any proprietary technology or algorithms embodied in Garner’s software or distributed in connection therewith (the “Software”) are the property of Garner and our partners. You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Garner.
Open Source Software: The Software may contain or be provided together with open source software. Each item of open source software is subject to its own license terms, which can be found here: https://app.getgarner.com/open-source. If required by any license for particular open source software, Garner makes such open source software, and Garner’s modifications to that open source software (if any), available by written request to email@example.com with a subject line of “Open Source Software”. Copyrights to the open source software are held by the respective copyright holders indicated therein.
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain or feature Content, including articles and other works (“Service Content”), that are protected by copyright, patent, trademark, trade secret or other proprietary rights and Laws. The Service Content is protected by United States and foreign intellectual property Laws. Unauthorized use of the Service Content may result in violation of copyright, trademark, and other Laws. You have no rights in or to the Service Content, and you will not use, copy or display the Service Content, including but not limited to use of framing or mirrors, except as permitted under these Terms of Service. No other use is permitted without our prior written consent, and any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. You may not sell, transfer, assign, license, sublicense, or modify the Service Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Service Content in any way for any public or commercial purpose (except that the foregoing does not apply to your own Content that you legally share).
Garner’s name and logos are trademarks and service marks of Garner (collectively the “Garner Trademarks”). Other product, and service names and logos which may be used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Garner. Nothing in these Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Garner Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Garner Trademarks will inure to our exclusive benefit.
User Content: You represent and warrant that you own all right, title and interest in and to any Content that you Share, including, without limitation, all copyrights and rights of publicity contained therein. You hereby grant Garner a nonexclusive, worldwide, royalty-free, fully paid up, transferable, sublicensable (directly and indirectly through multiple tiers), perpetual, irrevocable license to copy, display, share, perform, distribute, store, modify and otherwise use your such Content, and any statistical and usage data relating to your use of the Service derived by Garner or its third-party service providers, in connection with the Service, including the promotion thereof, and for our other business purposes. You represent and warrant that any authorized use of your Content by Garner does and will not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, and intellectual property rights.
Any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to Garner are non-confidential and Garner will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that Garner may preserve content and may also disclose content if required to do so by Law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable Laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Garner, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
Copyright Infringement – DMCA Notice: 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 US copyright law. If you believe, in good faith, that content or material in the Service infringes a copyright owned by you, you (or your agent) may send Garner a notice requesting that the material be removed or access to it blocked. Notices and counter-notices with respect to the Service should be sent to the address below:
Garner Health Technology, Inc.
64 Bleecker Street #103
New York, NY 10012
The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed; (c) identification of the material that is claimed to be infringing or the subject of infringing activity; (d) the name, address, telephone number, and email address of the complaining party; (e) a statement that the complaining party has 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 (f) 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 us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA.
Third-Party Services and Websites
Indemnity and Release
You agree to release, indemnify and hold Garner and its affiliates and its and their officers, employees, directors, service providers, licensors, and agents (collectively, “Indemnitees”) harmless from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred by such Indemnitee as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. GARNER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
GARNER MAKES NO WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) ANY CONTENT PROVIDED THROUGH THE SERVICE IS ACCURATE, LEGALLY COMPLIANT, UP-TO-DATE, RELIABLE OR CORRECT, OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
TO THE EXTENT PERMITTED BY LAW, GARNER EXPRESSLY DISCLAIMS, AND YOU HEREBY EXPRESSLY RELEASE GARNER FROM, ANY AND ALL LIABILITY WHATSOEVER FOR ANY CONTROVERSIES, CLAIMS, SUITS, INJURIES, LOSS, HARM AND/OR DAMAGES ARISING FROM AND/OR IN ANY WAY RELATED TO YOUR INTERACTIONS OR COMMUNICATIONS OR DEALINGS WITH ANY PROVIDER, INCLUDING WITHOUT LIMITATION ANY CARE OR SERVICES PROVIDED BY ANY PROVIDER, ANY ACTS AND/OR OMISSIONS OF PROVIDERS, OR PAYMENT DISPUTES.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, EXCEPT AS MAY BE EXPRESSLY PROVIDED HEREIN, GARNER WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF GARNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE SERVICE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) ANY SERVICES OR CARE PROVIDED BY A PROVIDER; (E) ANY TAX OR OTHER PENALTIES ARISING FROM OR RELATING TO YOUR HRA OR USE OR ATTEMPTED USE THEREOF; OR (F) ANY OTHER MATTERS RELATING TO THE SERVICE. IN NO EVENT WILL GARNER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID GARNER IN THE LAST SIX (6) MONTHS (IF AT ALL), OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
a. Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in these Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Garner, whether arising out of or relating to these Terms of Service (including any alleged breach thereof), the Service, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the Law allows, seek relief against us on your behalf. You agree that, by entering into these Terms of Service, you and Garner are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
b. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND GARNER AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND GARNER AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
c. Pre-Arbitration Dispute Resolution
Garner is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing Garner’s customer support at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Garner should be sent to:
Garner Health Technology, Inc.
64 Bleecker Street #103
New York, NY 10012
The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Garner and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Garner may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Garner or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Garner is entitled.
d. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator administered by JAMS in accordance with JAMS’ Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this Section, and as of the date of this Agreement). Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. For information on JAMS, please visit its website, https://www.jamsadr.com/. Information about the JAMS Rules and fees for disputes can be found at JAMS’ relevant page, https://www.jamsadr.com/rules-download/. If there is any inconsistency between any term of the JAMS Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable Law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Garner and you agree otherwise, the seat of arbitration shall be New York, New York. If your claim is for $10,000 or less, Garner agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the JAMS Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the JAMS Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the JAMS Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Garner will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Garner will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Garner will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the JAMS Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.
h. Future Changes to Arbitration Agreement
Notwithstanding any provision in these Terms of Service to the contrary, Garner agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Service, you may reject any such change by sending Garner written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
You agree that Garner, in its sole discretion, may suspend, limit, condition or terminate your account, use of the Service or any feature or function thereof and remove and discard any Content within the Service, at any time, and for any reason, including, without limitation, for lack of use or if Garner believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service may be referred to appropriate law enforcement authorities. Garner may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that, except as may be explicitly set forth herein, any termination of your access to the Service under any provision of these Terms of Service may be effected without prior notice, and you acknowledge and agree that Garner may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Garner will not be liable to you or any third party for any termination of your access to the Service (except as may be explicitly set forth herein).
These Terms of Service constitute the entire agreement between you and Garner and govern your use of the Service, superseding any prior agreements, in any form or format, between you and Garner with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service will be governed by the laws of the State of New York without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Garner agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within New York, New York. The failure of Garner to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service 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 of Service remain in full force and effect. You agree that regardless of any Law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms of Service without the prior written consent of Garner, but Garner may assign or transfer these Terms of Service, in whole or in part, without restriction. In the event of a termination of these Terms of Service, those provisions that by their nature are intended to survive a termination shall survive the termination. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at:
By mail: Garner Health Technology, Inc.
64 Bleecker Street #103
New York, NY 10012
By phone: 347-234-5716
Questions? Concerns? Suggestions?
Please contact us to report any violations of these Terms of Service or to pose any questions regarding these Terms of Service or the Service:
By mail: Garner Health Technology, Inc.
64 Bleecker Street #103
New York, NY 10012