Legal and Privacy, iOS

End User License Agreement

Last Modified: February 1, 2021

PLEASE READ THE TERMS OF THIS END USER LICENSE AGREEMENT CAREFULLY. By accessing or using the 98point6 iOS software application, which facilitates access to medical care rendered by licensed physicians and other licensed medical providers, you accept and agree to be bound by this End User License Agreement, including the terms in Sections 19 and 22 below that allow 98point6 to terminate or suspend your use of the Application at any time for any reason or no reason and that require you to resolve certain disputes with 98point6 by binding, individual arbitration, including a class action waiver.

This End User License Agreement (this “Agreement”) creates a contract by and between 98point6 Inc. (“98point6”) and the person (“you,” “yourself,” or “your”) who has downloaded the 98point6 iOS software application (the “Application”) from the Apple App Store. This Agreement describes the terms and conditions for your use of the Application, and your compliance with this Agreement is a condition to your access to and use thereof. The term Application includes all future versions of the software made accessible to you as part of the Application download and all information concerning future versions. This Agreement is between 98point6 and you only, and not with Apple. Notwithstanding the foregoing, upon your acceptance of the terms of this Agreement, Apple, as a third-party beneficiary of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you. Also, upon your acceptance of the terms of this Agreement, you agree that you have been advised of and understand the potential risks, consequences, and benefits of receiving medical care using remote, electronic communications, as described in the Consent to Treat set forth in Section 6 below. Note, too, that you have the right to opt out of the mandatory binding arbitration and class action waiver provisions by following the procedure described in Section 22 below. And finally, by providing your mobile phone number through the app, you agree to opt-in to receive non-marketing messages via SMS, as further described in Section 8 below. If you do not agree to all of the terms of this Agreement, do not access or use the Application.

For the avoidance of doubt, in the event that an organization, such as your or your partner’s or spouse’s employer, university, or health plan (“Sponsor Organization”), is paying for access to the Application on your behalf and has a separate written agreement with 98point6 concerning the making of the Application available to you for your use, that written agreement, and not this Agreement, governs and controls the contractual relationship between 98point6 and the Sponsor Organization.

1. Eligibility to Use the Application. You must be at least 18 years of age (or the age of legal majority where you live) in order to use the Application. If you are under 18 years of age (or the age of legal majority where you live), you may use the Application only under the supervision of a parent or legal guardian who agrees to be bound by this Agreement. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in relation to the Application. Additionally, there are circumstances in which certain adult users of the Application may be eligible to use the Application to seek medical care for or on behalf of a Minor (as defined below). The terms and conditions governing the use of the Application by an adult to seek medical care for or on behalf of a Minor are set forth in Section 7 below concerning pediatric medical care. For purposes of this Agreement and all uses of the Application, a “Minor” is a person that is under 18 years of age (or the age of legal majority where the Minor lives). A Minor may use the Application only under the circumstances described in Section 7 below concerning pediatric medical care sought by an adult user of the Application. 98point6 reserves the right to request proof of age at any point so that it can verify that Minors are not using the Application without supervision by an authorized adult. If 98point6 believes that a Minor is using the Application without adult supervision, it may prohibit the Minor from using the Application.

2. Modifications to this Agreement. 98point6 reserves the right to modify the terms, conditions, limitations, and restrictions set forth in this Agreement, or any policies related to access to and use of the Application, at any time and in its sole discretion; provided, that, in the event that 98point6 makes such a modification, it will endeavor to notify you and other users of the Application of the modification the next time that you and others access the user accounts created using the Application and allow you to review and accept this Agreement, as modified, prior to continuing to access or use the Application. Your continued use of the Application, following notice of such modifications, will constitute your acceptance of this Agreement, as modified. If you do not agree to any modifications of this Agreement or related policies, as they occur, you will immediately discontinue accessing or using the Application, including, if applicable, immediately uninstalling the Application on any devices that you own or control.

3. License Grant. Subject to the terms of this Agreement, including the eligibility requirements set forth in Section 1 above, 98point6 hereby grants to you a limited, non-transferable, non-exclusive right to use the Application on any iOS device that you own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service solely for the purpose of obtaining medical care from those physicians and other medical providers to whom you are granted access via the Application (the “Medical Providers”) in accordance with terms, conditions, limitations, and restrictions set forth in this Agreement, including, but not limited to, terms and conditions governing the payment of any fees required by 98point6.

4. Ownership of the Application; Restrictions on Use. You agree with 98point6 that, as between you and 98point6, the Application and all of the information, materials, features, functionality, and other content included in the Application or otherwise made accessible to you via the Application, including, but not limited to, any and all software, displays, images, graphics, text, algorithms, video, and audio and the design, selection, and arrangement of the same (collectively, the “Product”) is owned by 98point6, including any and all intellectual property in or related to the Product and any authorized or unauthorized enhancements, updates, upgrades, improvements, or other modifications to or reproductions or derivative works of the Product. The Product, including each of the elements described in the preceding sentence, is the property of 98point6 and/or its licensors and is protected by copyright, trademark, patent, trade secret, and other intellectual property and proprietary rights laws. 98point6 reserves all rights in this regard.

Except as otherwise expressly permitted in Section 7 below concerning pediatric medical care, each account registered with 98point6 is for a single user only. Further, you acknowledge that only one user account is permitted per individual, and you agree that you will not create more than one user account for an individual user, including creation of one or more additional user accounts using alternate identification information. You are responsible for maintaining the confidentiality of any account authentication credentials used to access your user account. You may not share your account authentication credentials, if any, with anyone else or otherwise permit anyone other than yourself to access the Product using your user account or, if applicable, your account authentication credentials. You are responsible for maintaining the confidentiality of your own user account and account authentication credentials. 98point6 reserves the right to cancel or suspend your access to the Product if you share your user account, create more than one user account for an individual user, or share your account authentication credentials.

Unless otherwise specifically agreed by 98point6 in writing, you will not (a) reproduce, modify, make derivative works of, reverse engineer, decompile, or disassemble the Product, (b) modify copyright or other proprietary rights notices of 98point6 or its licensors in or accompanying the Product, (c) make the Product available in any manner to any third party for use in the third party’s business operations, (d) access or use (or permit third parties to access or use) the Product in order to build or support any products or services competitive with the Product, or (e) inaccurately or falsely represent your current location, your demographic location, your address, your medical history, information about your medical condition, or otherwise inaccurately or falsely represent yourself to 98point6 or the Medical Providers.

You represent and warrant that (a) you are not 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) are not listed on any U.S. Government list of prohibited or restricted parties.

At this time, 98point6 does not treat patients presenting with issues or injuries related to Workers’ Compensation as outlined by the U.S. Department of Labor. You agree that you will not use the Application to seek care for an issue or injury arising from a Workers’ Compensation claim.

At this time, 98point6 does not treat patients covered by the U.S. Government’s health insurance program commonly known as Medicare, which is administered by the U.S. Centers for Medicare & Medicaid Services. You acknowledge this fact, and you agree that you will not use the Application for an issue or injury that you anticipate or expect to be covered by Medicare.

IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, YOU SHOULD DIAL 9-1-1 OR YOUR LOCAL EMERGENCY NUMBER IMMEDIATELY. The Application is not appropriate to address emergency or life-threatening medical conditions, and should not be used as such. 98point6 may direct you to an emergency room or other appropriate facility at any time.

5. Feedback; Testimonials. 98point6 has not agreed to and does not agree to treat as confidential any suggestion or idea provided by you regarding the Product (“Feedback”), and nothing in this Agreement or in your and 98point6’s dealings arising out of or related to this Agreement will restrict 98point6’s right to use, profit from, disclose, publish, or otherwise exploit any Feedback, without compensation to you, or provide you with any rights in the Product. 98point6 will publish your name or other identifying information in connection with any testimonial only with your prior approval.

If the Application is, or was, offered to you at no cost or at a discounted rate, any public or other published review, comment, or testimonial about 98point6 or the Application must include a statement indicating that the Application is, or was, provided to you at no cost or at a discounted rate. If any incentives were offered to you for any public or other published review, comment, or testimonial, the disclosure of such incentives is required by you in connection with your publications of the review, comment, or testimonial. 98point6 may republish any publicly available review, comment, or testimonial about 98point6 or the Application on its websites or in other media. Appropriate attribution to the original source of the publication will be made by 98point6.

6. Consent to Treat. You consent to receive medical care from the Medical Providers (as defined in Section 3 above) using remote, electronic communications, such as chat, audio, and/or video communications, specifically through your use of the Application, where such medical care may include diagnosis, consultation, treatment, and transfer of electronic medical records and medical data (each instance, a “Visit”). You agree to be treated via a virtual visit with a physician or other medical provider (i.e., not an in-person visit) and understand that there are inherent risks and limitations associated with a virtual visit with a physician or other medical provider, including, but not limited to, risks and limitations arising from such physician’s or medical provider’s ability, or inability, to comprehensively assess and accurately diagnose illness, injury, disease, or other medical issues using remote, electronic communications.

You agree to accurately disclose your location prior to participating in a Visit using the Application. Medical Providers will only be permitted to render medical care to you via the Application if you are located in a state and jurisdiction in the United States of America in which such Medical Providers are licensed to practice medicine.

You understand and agree that, as part of a Visit using the Application, you cannot select a specific Medical Provider. Further, you understand and agree that, due to emergencies, scheduling, and other circumstances, 98point6 cannot warrant or otherwise guarantee, and does not warrant or otherwise guarantee, that you will have access to the Medical Providers, including any specific Medical Provider.

You acknowledge that the Medical Providers that render medical care to you via the Application are engaged by physician groups and other medical care organizations that are affiliated with (e.g., subsidiaries of) or otherwise associated with (e.g., a subcontractor to) 98point6 or one of its affiliated physician groups or other medical care organizations and, in connection therewith, such Medical Providers may have a financial interest in 98point6.

During your Visit, you consent to the following:

  • (a) Data, chat text, audio, video, and/or digital photos may be recorded;

  • (b) Details of your medical information may be discussed with you and the Medical Providers via the Application using electronic technology, including chat, audio, video, and/or graphics technology;

  • (c) Virtual examination of you may take place; and

  • (d) Medical personnel and non-medical technical personnel may join the Visit, either physically or virtually, to aid in delivery of medical care to you; and

  • (e) Medical Providers accessing your medication history via 98point6’s electronic prescription transaction business associates to aid in delivery of medical care to you.

All existing laws regarding your access to medical information and copies of your medical record apply to your Visit using the Application. Reasonable efforts will be made to eliminate any confidentiality risks associated with your Visit. All existing confidentiality protections under applicable federal and state law apply to information disclosed during your Visit. You understand that there are risks and consequences from a virtual visit with a physician or other medical provider, including, but not limited to, the possibility, that the transmission of your medical information could be disrupted or distorted by technical failures, the transmission of your medical information could be interrupted by unauthorized persons, and/or the electronic storage of your medical information could be accessed by unauthorized persons.

You may withhold or withdraw consent to the Visit at any time without affecting your right to future care or treatment.

7. Pediatric Medical Care for Minors One Year of Age or Older. As described in Section 1 above, there are circumstances in which you, as an adult user of the Application, are eligible to use your user account and the Application to seek medical care for or on behalf of a Minor.

You may use your account and the Application to seek medical care for or on behalf of a Minor under the following circumstances:

  • (a) You are a parent or legal guardian having legal custody of the Minor (or you are a partner or a spouse of a parent or legal guardian having legal custody of the Minor and you are enrolled as an eligible dependent in the group medical plan offered by such parent’s or legal guardian’s employer). If at any time, you are no longer authorized to access the Minor’s profile, due to court order or for any other reason, you agree to notify 98point6 immediately;

  • (b) You have your own user account (not the user account of your partner or spouse) and are otherwise eligible to access and use the Application;

  • (c) The Minor is enrolled as an eligible dependent in the group medical plan offered by your employer (or, if you are a partner or spouse of a parent or legal guardian having custody of the Minor, on the group medical plan offered by such parent’s or legal guardian’s employer);

  • (d) The Minor is at least one year old (and otherwise qualifies as a Minor, as that term is defined in Section 1 above);

  • (e) The Minor has not been emancipated due to circumstances such as marriage, military service, or judicial emancipation;

  • (f) The Minor is not under the care of a government agency (for example in foster or shelter care);

  • (g) At the time that you initiate each Visit for the Minor, you attest that the requirements set forth in subsection (a) above are met; and

  • (h) You remain present during the entirety of each Visit.

You agree that you will not use the Application to seek medical care for a Minor except in the circumstances described in this Section 7 or otherwise allow a Minor to use your account to seek medical care on their own. 98point6 reserves the right, and each Medical Provider shall have the right, to cancel or suspend access to the Application by you or anyone using the Application to seek medical care for a Minor in violation of the terms, conditions, limitations, and restrictions set forth in this Section 7, including, in the case of a Medical Provider, the right to promptly end a Visit if the Medical Provider reasonably believes that an attempt is being made to use the Application to seek medical care for or on behalf of a Minor in violation of this Section 7 or otherwise use the Application in a manner that is improper or potentially harmful to a Minor.

98point6 reserves the right, and each Medical Provider shall have the right, to require that a Visit for rendering medical care to a Minor be conducted using video communications.

8. 98point6 SMS Program Terms. To facilitate your use of the Application and enable you to receive medical care, 98point6 will send you SMS messages in certain circumstances. We send you SMS messages related to security codes and to share referrals to Medical Providers (collectively, “SMS Program”). SMS is not a secure method of communication and there is a risk that third parties may view SMS messages while in transit. By using the Application and providing your phone number to create your account with 98point6, you authorize 98point6 to communicate with you by SMS.

  • (a) Security Code Messages. When you provide your phone number to create your account with 98point6 you opt-in to the Security Code Message service and we will send you an SMS message to provide you with a security code, which will verify your identity and confirm you are signing up to receive Security Code messages for future sign ins to 98point6.

    98point6 will only send Security Code messages when you create your account and each time you sign in. Each message will provide you with a security code that you will enter into the app to verify your identity.

    You can cancel the Security Code service at any time but please be aware that canceling the service will also block you from receiving care from 98point6. The Security Code is necessary to access medical care via 98point6. To cancel, just text "STOP" to the short code. After you send the SMS message "STOP" to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive Security Code SMS messages from us.

    If after unsubscribing, you decide you want to receive care again, opt back into the Security Code service by texting START to the same phone number and you will be able to receive Security Code services again. 98point6 support can also restore Security Code message delivery; please create a request here: https://98point6.com/contact.

  • (b) Referral Messages. When interacting with our Application, we may send you SMS messages to connect you with a Medical Provider who can help provide you care (“Referral Messages”). Each time you sign into the 98point6 app, you will be asked to opt in to receive Referral Messages from 98point6. You can cancel receipt of referral messages at any time by responding “STOP” to any text message received. Please be aware if you opt out of receiving Referral Messages, we may not be able to share information about referred Medial Providers with you. After you send the SMS message “STOP” to us, we will send you an SMS message to confirm that you have been unsubscribed from Referral Messages, and you will no longer receive Referral Messages from us. If after unsubscribing, you decide you would like to receive Referral Messages again, opt back into the Referral Messages service by texting START to the same short code. Alternatively, you will be asked to consent to receive Referral Messages the next time you use the 98point6 app.

  • (c) Other SMS Program Terms. If at any time you forget what keywords are supported in our SMS Program, just text "HELP" to the relevant short code. After you send the SMS message "HELP" to us, we will respond with instructions on how to use our service as well as how to unsubscribe.

    We are able to deliver messages to the following mobile phone carriers: Major carriers: AT&T, Verizon Wireless, Sprint, T-Mobile, MetroPCS, U.S. Cellular, Alltel, Boost Mobile, Nextel, and Virgin Mobile. Minor carriers: Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of East Central IL (ECIT), Cellular One of Northeast Pennsylvania, Cincinnati Bell Wireless, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Simmetry (TMP Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless, and West Central (WCC or 5 Star Wireless). ***Carriers are not liable for delayed or undelivered messages***

    As always, message and data rates may apply for any messages sent to you from us and to us from you. You will receive Security Code messages when you create your account, each time you sign in to 98point6, and, depending upon your medical care needs, you will receive Referral Messages when appropriate. If you have any questions about your text plan or data plan, it is best to contact your wireless provider. For any questions about our SMS Program, send an email to support@98point6.com.

    If you have any questions regarding privacy, please read our privacy policy.

9. Payments, Access, and Caps on Annual Visits.

Your user account, whether through a subscription you purchase or made available to you through your Sponsor Organization provides you with unlimited access to the Application, at no additional charge. Depending on the type of account you have, you may also be required to pay a nominal fee per Visit.

If you are not required to pay a fee per Visit, you acknowledge and agree that, within a twelve (12) month period, beginning on the date of your first Visit, you are limited to thirty-six (36) Visits per twelve (12) month period as part of a subscription you purchase or made available to you through your Sponsor Organization. Additional Visits can be purchased on an a la carte basis. For the avoidance of doubt, the limitation of thirty-six (36) Visits per twelve (12) month period does not apply to individuals paying a fee per Visit.

10. Use of Stripe for Payment Processing. You understand that 98point6 uses the StripeTM application programming interface (or API) to process payments through the Application. Payment processing services are provided by Stripe and are subject to the Stripe Connected Account Agreement (as provided on the Stripe website at https://stripe.com/us/connect-account/legal or a successor website) and Stripe Terms and Services (as provided on the Stripe website at https://stripe.com/us/ssa or a successor website). By agreeing to this Agreement or otherwise continuing to utilize the Product, you agree to be bound by the above referenced agreements with Stripe, and agree that such agreements may be modified by Stripe from time to time. As a condition of 98point6 making payment processing services available to you through the Stripe API, you agree to provide 98point6 accurate and complete information about you and your payment information, and you authorize 98point6 to disclose such information to Stripe for the purpose of enabling payment processing on your behalf and, likewise, receive from Stripe transaction information related to your use of the payment processing services provided by Stripe as needed in order to process payments by you through the Application.

You understand and agree not to hold 98point6 liable for any adverse effect that actions (whether intentional or unintentional) may cause to any other accounts you hold. You agree to not process stolen cards or unauthorized cards through your Stripe and/or 98point6 account.

11. Recurring Charges; Auto-Renewal; Cancellation. If you purchase a subscription to access the Site (as opposed to your Sponsor Organization providing you with access to the Site), then you authorize 98point6 to charge your chosen payment method for your initial subscription payment and automatic annual renewals until you turn off automatic annual renewals or cancel your subscription. You must turn off automatic annual renewals before your subscription renews to avoid being charged the annual subscription fee for the subsequent annual subscription period. If you turn off automatic annual renewals, your subscription will not be renewed after the then-current annual subscription period expires. You may turn off automatic annual renewals in the Auto-Renewal portion of the Manage Subscription section of your profile.

You may also cancel your subscription at any time by contacting our customer service via our Contact us form. After you cancel your subscription, you will no longer be able to start a Visit. In some circumstances, upon cancelling your subscription, you may be eligible to receive a refund of all or some of your annual subscription fee for the then-current annual subscription period. For more information on the circumstances in which a refund may be available, go to our FAQs or contact our customer service via our Contact us form.

If the amount to be charged to you varies from the amount you preauthorized when you created your account subscription (other than due to an imposition or change in the amount of any applicable state sales taxes), for example, due to an increase in the annual subscription fee that we charge for access to the Site, you have the right to receive, and we will provide, notice of the amount to be charged and the date of the charge at least 30 days before the scheduled date of the automatic annual renewal. If you do not agree with the new amount in the notice, you may turn off automatic annual renewals in the Auto-Renewal portion of the Manage Subscription section of your profile. You may also cancel your subscription by contacting our customer service via our Contact us form.

12. Health Savings Account Requirements. If you are not affiliated with an employer that 98point6 contracts with to provide you medical care as part of a group health plan, you acknowledge and agree that 98point6 does not have the obligation to verify your Health Savings Account (“HSA”) status and/or eligibility. If you are eligible for an HSA and/or do contribute to an HSA, check with your benefits administrator to ensure payment for the medical care under a personal health plan will not materially affect your eligibility under your HSA benefits, including the ability to make future contributions to your HSA.

13. Users Receiving Promotional Access. Users receiving promotional access to the Application shall have full access to the Application and shall receive the same level of service as other users of the Application. 98point6 will direct users receiving a promotional price on how to access the promotion. For example, 98point6 may provide a promo code that must be entered during the account registration process to access the promotion. If you are an employee of 98point6, your participation as a user of the Application is NOT a requirement in order to obtain or continue employment, and any services that you receive in connection with the Application are provided outside of the terms and conditions of your employment.

14. Refunds. 98point6 will issue a subscription refund to you if you have not yet had a Visit or for any charges incurred in error. 98point6 may consider issuing a subscription refund to you in other circumstances on a case by case basis. 98point6 will not issue a refund for per-Visit fees properly incurred.

15. Limited Performance Warranty. We warrant to you that, during any period in which you have a user account in good standing and subject to your adherence to the terms and conditions of this Agreement at all times, the Application, as provided by 98point6 to you and without any modifications by you or others, will conform in all material respects to the documentation provided by 98point6 to you in connection with your access to and use of the Application that describes the design features and functionality of the Application. Except for the limited performance warranty set forth in this Section 15, 98point6 makes no warranties of any kind regarding the performance of the Product or the compatibility between the Application and any future versions of it. If you identify an error, bug, or other non-conformity that does not comply with the limited performance warranty set forth in this Section 15, you will notify 98point6, and 98point6’s sole obligation, and your sole remedy, will be for it to use commercially reasonable efforts to correct the error, bug, or non-conformity. Except for the foregoing obligation, neither 98point6 nor Apple shall have any obligation whatsoever to furnish any maintenance and support services with respect to the Product. Except as otherwise set forth in this Section 15 and to the maximum extent permitted by applicable law, the Application, the Product as a whole, and any related services provided to you or your dependents (including, but not limited to, any medical care provided in connection therewith) are provided strictly on an “as is'' and “as available” basis without warranty of any kind, express, implied, or statutory. The express warranties set forth in this Agreement are in lieu of, and 98point6 and Apple specifically disclaim, all other warranties whether express, implied, or statutory, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Without limiting the foregoing, you specifically acknowledge that 98point6, Apple, and their respective licensors make no warranty that the Product will meet your requirements or be error-free or without interruption; that all errors, bugs, and non-conformities will be corrected; that the Product will be free of vulnerability to intrusion or attack; or that your specific requirements will be satisfied. You acknowledge that neither 98point6 nor Apple control the transfer of data over communications facilities, including the Internet, and that the Product may be subject to limitations, delays, and other problems inherent in the use of such communications. Neither 98point6 nor Apple will be liable for any alteration, theft, destruction or loss of your data, files, records, or programs.

16. Limitations of Liability. Medical care made available via the Application is rendered by Medical Providers at 98point6 Physicians PC and physician groups and other medical organizations contracted by 98point6 Physicians PC (collectively, “98point6 PC”). 98point6 PC is, or otherwise comprises, a medical practice and medical organization. The Medical Providers at 98point6 PC render the medical care made available via the Application, including assessment, diagnosis, and treatment or referral, as appropriate, of any illness, disease, or other adverse medical conditions.

98point6 is not a medical practice or medical organization. Neither the Application, the Product as a whole, nor any hardware, software, technology, or related services provided by 98point6 are intended to treat any illness, disease, or other adverse medical condition and should not be considered the practice of medicine and are not the documentation of medical advice of any kind.

98point6 and 98point6 PC are not insurance. Neither 98point6 nor 98point6 PC are engaged in the business of insurance, and neither this Agreement nor any incorporated terms or conditions are or shall be deemed a contract for insurance. The fee, if any, earned by 98point6 does not cover the provision of medical care. The fee earned by 98point6 PC shall cover the rendering of medical care by the Medical Providers only and shall not cover the cost of any diagnostic tests, prescription medications or medical devices, or specialty medical care rendered by any third party.

Aside from personalized information you receive directly from one or more of the Medical Providers via the Application during a Visit or in a care plan provided to you by a Medical Provider, the contents of the Application, including but not limited to information you receive via our risk assessment tool and our health coaches (“Coaching”), are for informational purposes only and are not intended to be a substitute for professional medical advice, diagnosis, treatment, or recommendations of any kind. Coaching is not considered a health care service and is not a substitute for medical or mental health treatment or advice provided by a Medical Provider. Coaching is not intended to diagnose, treat, or cure medical and mental health conditions. Coaching is an excellent supplement to your overall care plan as it provides the tools and support often needed to create new, healthy behaviors, but it is not medical care.. Reliance on any information appearing on the Application, except as otherwise described in this paragraph, is solely at your own risk.

Hardware, software, and other technology is complex and may not be completely free of errors. To the maximum extent permitted by applicable law, 98point6 will not be liable for any damages arising under this Agreement. You should contact 98point6 if you have any concerns or claims relating to the Product. For avoidance of doubt, Apple shall have no responsibility to address any claims of yours or any third party relating to the Product or your access to or use of the Product, including, but not limited to: (a) product liability claims; (b) any claim that the Product 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 Product or your access to or use of the Application infringes that third party’s intellectual property rights, 98point6, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property-infringement claim.

98point6 and its officers, employees, directors, subsidiaries, agents, and licensors are neither responsible nor liable for any indirect, incidental, special, consequential, exemplary, punitive, or other damages whatsoever (including, but not limited to, damages for lost profits, goodwill, use, data, or other intangible losses) arising out of or related to your use of the Application, including any content or information contained therein or services related thereto, whether based on contract, tort, warranty, statute, or otherwise. Your sole remedy in the event of any problem with the Application is to stop using the Application. To the maximum extent permitted by applicable law, the maximum liability of 98point6 to you with respect to your use of the Product is the greater of $100 USD or the amount of fees you have paid for access to and use of the Application in the three-month period preceding the event, or events, giving rise to your claim.

17. Confidentiality.

Confidential Information” includes all confidential and proprietary aspects of the Product, in addition to any information you submit through the Application that a reasonable person would expect under the circumstances of disclosure to be kept confidential (e.g., any personal health information or other personal data or information).

98point6 and you (each a “Party”) will not disclose the Confidential Information of the other Party and will use the Confidential Information of the other Party only to exercise rights and fulfill obligations under this Agreement, while using reasonable care. The receiving Party may disclose Confidential Information of the discloser when required by law after giving reasonable notice to the discloser, if permitted by law. Except for the limited use rights under this Agreement, neither Party acquires any right, title, or interest in the other Party’s Confidential Information.

The Parties agree that any breach of this Section 17 by the other may cause irreparable injury not adequately compensable with monetary damages. Accordingly, in addition to any rights otherwise available at law, in equity, or by statute, the non-breaching Party is entitled to seek injunctive and other equitable relief without the obligation to post a bond.

18. Privacy. The Privacy Policy and Notice of Privacy Practices set forth below explains how 98point6 treats your personal data and other information and protects your privacy. By accessing or using the Application, you agree that 98point6 can use such data and information pursuant to and in accordance with the Privacy Policy and Notice of Privacy Practices.

19. Term and Termination. The term of this Agreement commences upon your acceptance of this Agreement, as evidenced by your access to and use of the Application. 98point6 may suspend or terminate your access to and/or use of the Application by canceling or suspending your user account at any time for any reason or no reason. 98point6 may maintain, delete, or destroy all communications and materials posted or uploaded to the Application per its record retention and/or content destruction policies. Whether during the term of this Agreement or after termination of this Agreement, 98point6 has no obligation to continue to provide the Product or otherwise make the medical care available via the Application; however, 98point6 will provide access to you to any of your health records in 98point6’s possession as a result of this Agreement as may be required under applicable legal, ethical, and professional obligations. In case of any conflict between this Agreement and the applicable terms of the Apple App Store Terms of Service, the Apple App Store Terms of Service shall govern and control.

20. Notices. Notices from one Party to the other shall be in writing and may be sent via email. You can notify 98point6 or send questions, complaints, or claims related to the Product to 98point6 by contacting 98point6 here. Notices from 98point6 to you will be sent to the email address or mailing address provided by you as part of your user account.

21. Indemnification. You agree to defend, indemnify and hold harmless 98point6 and its officers, employees, directors, subsidiaries, affiliates, agents, licensors, suppliers, and other customers (including, but not limited to, employers facilitating use of or purchasing access to the Application for their employees, group health plans facilitating use of or purchasing access to the Application for their members, and other organizations and entities facilitating use of or purchasing access to the Application for individuals affiliated with the organization or entity) from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your use of the Application.

22. Dispute Resolution; Mandatory Binding Arbitration.

Please read this Section 22 carefully, because it requires you to waive your right to a jury trial and arbitrate certain disputes and claims with 98point6 and limits the manner in which you can seek relief from us. As set forth in this Section 22, no class or representative actions or arbitrations are allowed.

Except for small claims disputes in which you or 98point6 seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you or 98point6 seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and 98point6 waive your rights to a jury trial and to have any dispute arising out of or related to this Agreement or the Product resolved in court. Instead, for any dispute that you have against 98point6, you agree to first contact 98point6 and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to 98point6 by email at legal@98point6.com or by certified mail addressed to: Attn: LEGAL, 98point6 Inc., 701 5th Ave., Ste. 2300, Seattle, WA 98104, USA. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Any notice of a claim that 98point6 provides to you will be similar in form to that described above. If you and 98point6 cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either Party may, as appropriate in accordance with this Section 22, submit the dispute to binding arbitration administered by the Judicial Arbitration and Mediation Services ("JAMS"). All submitted disputes will be resolved through confidential binding arbitration held in Seattle, Washington in accordance with the Streamlined Arbitration Rules and Procedures ("Rules") of JAMS, which are available on the JAMS website and incorporated herein by this reference. You either acknowledge and agree that you have read and understands the Rules or waive the opportunity to read the Rules and any claim that the Rules are unfair or should not apply for any reason.

You and 98point6 agree that any dispute arising out of or related to this Agreement or the Product is personal to you and 98point6 and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action, or any other type of representative action or proceeding.

You and 98point6 agree that this Agreement affects interstate commerce and that the enforceability of this Section 22 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA"), to the maximum extent permitted by applicable law. As limited by the FAA, this Agreement, and the Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action or proceeding, which is prohibited by this Agreement. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative action or proceeding, or preside over any action or proceeding involving more than one individual.

The arbitrator, 98point6, and you will maintain the confidentiality of any proceedings, including, but not limited to, any and all information gathered, prepared, and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard that confidentiality, unless the law provides to the contrary.

You and 98point6 agree that, for any arbitration you initiate, you will pay the filing fee and 98point6 will pay the remaining JAMS fees and costs. For any arbitration initiated by 98point6, 98point6 will pay all JAMS fees and costs, including the filing fee. You and 98point6 agree that the state or federal courts of the State of Washington and the United States of America sitting in Seattle, Washington, USA have exclusive jurisdiction over any appeals and the enforcement of any arbitration awards.

Any claim arising out of or related to this Agreement or the Product must be filed within one (1) year after such claim arose; otherwise, to the maximum extent permitted by applicable law, the claim is permanently barred, which means that neither you nor 98point6 will have the right to assert the claim.

You have the right to opt out of the mandatory binding arbitration described in this Section 22 within thirty (30) days after the date you first accepted this Agreement, as evidenced by your access to and use of the Product by emailing legal@98point6.com. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of the mandatory binding arbitration described in this Section 22. By opting out of mandatory binding arbitration, you are agreeing to resolve disputes in accordance with Section 23 below.

If any portion of this Section 22 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from this Agreement; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 22 or the Parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 22; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 22 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 22 will be enforceable.

23. Governing Law. This Agreement and your access to and use of the Application, including the Product as a whole, are governed by the laws of the State of Washington, USA, without regard to its conflict of laws principles. Any dispute between the Parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of the State of Washington and the United States of America sitting in Seattle, Washington, USA.

24. Miscellaneous. If any provision of this Agreement is adjudged to be invalid, void, or unenforceable, the Parties agree that the remaining provisions of this Agreement shall not be affected thereby, that the provision in question may be replaced by the lawful provision that most nearly embodies the original intention of the Parties, and that this Agreement shall in any event otherwise remain valid and enforceable. In no event will 98point6 be deemed in default hereunder based on delay in, or failure of, performance (other than the payment of money) if caused by floods, fires, storms, or other acts of God, by war or acts of public enemy, including terrorism, or civil disturbance, strikes, lockouts, shortage of labor, labor disputes or labor trouble, problems in obtaining raw materials or production facilities, power failure, equipment failure, transportation shortages or failures, actions of any governmental or other authority, or any other cause not within 98point6’s reasonable control. Except as otherwise expressly set forth herein, this Agreement is for the benefit of, and shall be binding upon the Parties. No third-party shall be considered a third-party beneficiary hereunder, except as otherwise expressly set forth herein as to Apple. You may not assign or transfer your rights or obligations under this Agreement without the prior written consent of 98point6. You and 98point6 are independent contractors with respect to this Agreement and the Product.

25. Responsibility for Security of Devices. You are responsible for the security of your information system(s), including its network and related computer equipment and peripherals (“Information System(s)”). In the event you are accessing the Application through a mobile device, you are solely responsible for the access and use of such mobile device, and must keep secure your device access credentials at all times. You are encouraged to fully utilize all security features, including locking, within the mobile device. You agree that it is your responsibility to comply with all applicable laws, rules, or regulations and ensure adequate security of your Information System(s). Each of you and 98point6 agree to notify the other of any violation of data security of which they become aware.

26. Links to Third-Party Websites. The Application may contain links to third-party websites for your convenience. 98point6 is not responsible for the content of such third-party websites and does not make any representations or warranties regarding such websites or their content. Use of or reliance on such third-party websites is at your sole risk.

27. Prohibited Uses. You agree not to:

  • Upload or transmit any communication or content of any type that infringes or violates any rights of any party.
  • Use, modify, sell, assign, or transfer the content or reproduce, display, publicly perform, distribute, post, transmit, or otherwise use the Application in any way for any public or commercial purpose.
  • Reverse engineer, disassemble, or decompile any software included in connection with the Product.
  • Use the Application for any purpose in violation of local, state, national, or international laws.
  • Use the Product as a means to distribute or post advertising or other unsolicited material to any party.
  • Impersonate any person or entity or falsely represent your identification or affiliation.
  • Inaccurately or falsely represent your current location, your demographic location, your address, your medical history, information about your medical condition, or otherwise inaccurately or falsely represent yourself to 98point6 or the Medical Providers.
  • Distribute viruses or other harmful computer code.
  • Harvest or otherwise collect information about others.
  • Promote, encourage, or engage in defamatory, harassing, abusive, or otherwise objectionable behavior.
  • Interfere with the operation of the Application or any other 98point6 product, service, hardware, software, technology, equipment, network, or systems.
  • Copy or distribute in any medium any part of the Product.
  • Use or access the Application in an abusive, excessive, or inappropriate manner as determined in the sole discretion of 98point6, which may include, but is not limited to:
    • Initiating or engaging in excessive, superfluous, or unsuitable Visits.
    • Repeatedly terminating or dropping off Visits prior to their conclusion.
    • Repeated failure to respond to and comply with the Medical Providers’ follow-up and treatment plans.
    • Creating a hostile environment, harassing one or more Medical Providers, or otherwise engaging in inappropriate behavior through the use of the Product.
If 98point6 becomes aware that any person or entity is using the Application in violation of this Agreement, including the terms, conditions, limitations, and restrictions set forth in this Section 27, 98point6 may prohibit and block or terminate such person’s or entity’s access to and/or use of the Application.

Legal Notice

Last Updated: April 2, 2018, Version 1.0

This legal notice supports the software program named 98point6 application iOS version 1.6.0 (the “98point6 Application”).

Disclaimer

98point6 Inc. (“98point6”) may have patents, patent applications, trademarks, copyrights, or other intellectual property rights covering subject matter in this document. Except as expressly provided in any written license agreement from 98point6, the furnishing of this document does not give you any license to these patents, trademarks, copyrights, or other intellectual property.

Information contained in this document is proprietary to 98point6. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form, in whole or in part, by any means electronic, mechanical or other otherwise, including photocopying and recording, for any purpose without written permission of 98point6.

Copyright Notices

© 2017-2018 98point6 Inc. All rights reserved.

Trademark Notices

98POINT6 is a registered trademark of 98point6 Inc. All other trademarks are the property of their respective owners.

Third Party Code

Please note that 98point6 is not the original author of the software or other materials that are licensed by third parties (“Third-Party Code”). The notices and licenses contained herein that are applicable to the Third-Party Code are provided to you solely for your information. 98point6, not the third party, licenses this Third-Party Code to you under the terms set forth in the license agreement for this product. 98point6 reserves all other rights not expressly granted pursuant to the license agreement for this product, whether by implication, estoppel, or otherwise.

This copy of the 98point6 Application is being made available for limited use by customers and partners of 98point6 who are authorized to download and use such software, and in accordance with the end user agreement and applicable commercial agreement between you or your employer and 98point6.

The 98point6 Application includes Quick (v 1.1.0), Nimble (v 7.0.1). Quick (v 1.1.0) and Nimble (v 7.0.1) are licensed pursuant to Apache Version 2.0. A copy of the Apache Version 2.0 license is included below:

Apache License
Version 2.0, January 2004
http://www.apache.org/licenses/

TERMS AND CONDITIONS FOR USE, REPRODUCTION, AND DISTRIBUTION

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"Legal Entity" shall mean the union of the acting entity and al other entities that control, are controlled by, or are under common control with that entity. For the purposes of this definition, "control" means (i) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (ii) ownership of fifty percent (50%) or more of the outstanding shares, or (iii) beneficial ownership of such entity.

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"Work" shall mean the work of authorship, whether in Source or Object form, made available under the License, as indicated by a copyright notice that is included in or attached to the work (an example is provided in the Appendix below).

"Derivative Works" shall mean any work, whether in Source or Object form, that is based on (or derived from) the Work and for which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship. For the purposes of this License, Derivative Works shall not include works that remain separable from, or merely link (or bind by name) to the interfaces of, the Work and Derivative Works thereof.

"Contribution" shall mean any work of authorship, including the original version of the Work and any modifications or addition to that Work or Derivative Works thereof, that is intentionally submitted to Licensor for inclusion in the Work by the copyright owner or by an individual or Legal Entity authorized to submit on behalf of the copyright owner. For the purposes of this definition, "submitted" means any form of electronic, verbal, or written communication sent to the Licensor or its representatives, including but not limited to communication on electronic mailing lists, source code control systems, and issue tracking systems that are managed by, or on behalf of, the Licensor for the purpose of discussing and improving the Work, but excluding communication that is conspicuously marked or otherwise designated in writing by the copyright owner as "Not a Contribution."

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You may add Your own copyright statement to Your modifications and may provide additional or different license terms and conditions for use, reproduction, or distribution of Your modifications, or for any such Derivative Works as a whole, provided Your use, reproduction, and distribution of the Work otherwise complies with the conditions stated in this License.

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8. Limitation of Liability. In no event and under no legal theory, whether in tort (including negligence), contract, or otherwise unless required by applicable law (such as deliberate and grossly negligent acts) or agreed to in writing, shall any Contributor be liable to You for damages, including any direct, indirect, special, incidental, or consequential damages of any character arising as a result of this License or out of the use or inability to use the Work (including but not limited to damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses), even if such Contributor has been advised of the possibility of such damages.

9. Accepting Warranty or Additional Liability. While redistributing the Work or Derivative Works thereof, You may choose to offer, and charge a fee for, acceptance of support, warranty, indemnity, or other liability obligations and/or rights consistent with this License. However, in accepting such obligations, You may act only on Your own behalf and on Your sole responsibility, not on behalf of any other Contributor, and only if You agree to indemnify, defend, and hold each Contributor harmless for any liability incurred by, or claims asserted against, such Contributor by reason of your accepting any such warranty or additional liability.

This product includes IGListKit (v 3.2.0) Copyright © 2016, Facebook All rights reserved. and SocketRocket (v. 0.5.1) Copyright © 2016-present, Facebook, Inc. All rights reserved. IGListKit (v 3.2.0) and SocketRocket (v 0.5.1) software are licensed pursuant to the 3-Clause BSD license. A copy of the 3-Clause BSD license is included below:

  1. Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
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  3. Neither the name of the copyright holder nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.

THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

This product includes Alamofire (v 4.5.1) Copyright © 2014-2018 Alamofire Software Foundation (http://alamofire.org/), ReSwift (v 4.0.0), Copyright © 2016 ReSwift Contributors, RxSwift (v 4.0.0) Copyright © 2015 Krunoslav Zaher All rights reserved, Snapkit (v 4.0.0), Dwifft (v 0.7) Copyright © 2015 Jack Flintermann, KeychainAccess (v 3.1.0) Copyright © 2014 kishikawa katsumi, stripe-ios (v 12.6.0.2) Copyright © 2011- Stripe, Inc. (https://stripe.com), and KSCrash (v 1.15.16) Copyright © 2012 Karl Stenerud, ios-client (v 2.6.0.2) Copyright © 2015 Catamorphic, Co., ios-eventsource (v 3.2.0) Copyright © 2013 Neil Cowburn (http://github.com/neilco/), and SocketCluster (v 1.0.0) Copyright © 2013-2017 Socketcluster.io. Alamofire (v 4.5.1), ReSwift (v 4.0.0), RxSwift (v 4.0.0), SnapKit (v 4.0.0), Dwifft (v 0.7), KeychainAccess (v 3.1.0), stripe-ios (v 12.0.0), KSCrash (v 1.15.16), ios-client (v 2.6.0.2), ios-eventsource (v 3.2.0), and SocketCluster (v 1.0.0) are licensed pursuant to the MIT license. A copy of the MIT license is below:

Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:

The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.

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