Terms & Conditions
Last Updated October 21, 2022
Welcome and thank you for visiting Wombat Mental Health Services!
If you do not accept/agree to these Terms in their entirety, you are not authorized to use the Site. This Agreement will become effective on the date you agree to the Terms.
This Site is offered and available to users who are 18 years of age or older. By using this Site, you represent and warrant that you are at least 18 years of age. If you are less than 18 years of age, you must not access or use the Site.
Wombat MHS has made every reasonable effort to ensure that the contents of our site is correct and complete. The information is limited in nature and does not contain all of the applicable terms, conditions, limitations, or exclusions of the products and/or Services referenced. All of the Services are not available in all areas and are subject to applicable laws, rules, and regulations.
- Who We Are.
We are a licensed clinical social worker professional corporation with a mission to provide equitable access to culturally appropriate, non-judgmental, and affirmative mental health services to Deaf, Disabled, LGBTQIA2S, BIPOC, and individuals challenged with accessing mental health services. We carry out our mission through creating, delivering, and supporting accessible mental health services for underserved individuals and communities. Through culturally sustainable practices, we empower individuals to embrace healing.
We offer programs and services to clients that create safe, accepting, and inclusive environments within this Site and through other mediums of communication, such as by way of mobile or landline phones, as part of our Services. Wombat MHS also welcomes support in furthering our mission by accepting Donations (as further defined below) to provide session ‘scholarships’ for clients. If you would like to make a donation to Wombat MHS, the Donor Terms (as further outlined below) will apply.
Our Services are intended as a telehealth services for licensed clinical therapy and social work. The Services do not constitute rescue services and/or emergency medicine, and are not a substitute for receiving medical advice as to matters, as solely determined by a Wombat MHS provider of the Services, to be outside the scope of any of the Services – please consult with your attending physician, before and during use of the Services, regarding any questions regarding diagnosis or medical treatment. You acknowledge and agree that you are solely responsible for receiving medical consultation prior to the commencement of the use of the Services and during their use, and for any decisions made or actions taken by you as a result of and/or in connection with any use of the Services.
The Services are not for emergencies. IF YOU BELIEVE YOU HAVE AN EMERGENCY, CALL 911 IMMEDIATELY. If you are thinking about suicide or if you are considering taking actions that may cause harm to yourself or others, call the National Suicide Prevention Hotline anytime at 1-800-273-8255 (en Español 1-888-628-9454) or go to the nearest emergency room. You can also use the 24/7 Crisis Text Line by texting “HOME” to 741-741 or [[ 988 ]].
Prerequisites for using our services. Please note that the use of the Services is subject to Wombat MHS’s suitability assessment and intake process, as amended from time to time and performed by Wombat MHS to determine whether you are suitable for the use of the Services, in each instance at Wombat MHS’s sole discretion.
2.2 Consent to Treatment.
Wombat MHS offers telehealth-based services provided by professionals licensed in clinical social worker and therapy, or an associate clinical social worker (an “ACSW”) under the supervision and management of a licensed social worker and therapy, including without limitation specialists licensed in [[ marital and family services, and psychology ]], retained or engaged by, or under the employment of Wombat MHS (collectively, the “Telehealth Providers”). Telehealth (or Telemedicine, often these terms are used interchangeably) involves the real-time evaluation, diagnosis, consultation, and treatment of a mental health condition using advanced telecommunication technology, which often includes the use of interactive audio, video, or other electronic media. The use of telehealth technology allows the Wombat MHS provider to see and communicate with you, the client, in real-time from a remote or distant location. The services needed to support this treatment may include physical, occupational or other therapy. By using our Services, you confirm that : (i) you have had the opportunity to ask questions and have had these questions answered to your satisfaction; (ii) you have received an explanation and a copy of your rights and responsibilities as a client of Wombat MHS’s and understand those rights and responsibilities; (iii) you understand the benefits and risks of receiving treatment at home and hereby authorize Wombat MHS and its practitioners, associates, technical assistants and/or other professionals as Wombat MHS may deem necessary (also, the “Telehealth Providers”) to provide the treatment to you as set forth by and under the direction of a Telehealth Professional. By agreeing to these Terms, you are giving your informed consent for the provision of telehealth services by Wombat MHS Telehealth Providers.
2.3 Benefits and Risks of Telehealth Services.
Telehealth provides access to care in circumstances where it may be difficult to provide otherwise. The benefits of telehealth Services may include improved and easier access to mental health care by enabling clients to remain in their own locations and more efficient mental health care evaluation and management, often at a lower cost compared to other alternatives. Yet, as with any type of health care service, there are potential risks associated with the use of telehealth Services and, hence, the Services provided via this Site. Wombat MHS Telehealth Providers: (a) may conduct their practice in a different location than the one where you may be physically present for such mental health care; (b) may not have the opportunity to perform an in-person examination of you at the time your telehealth Services are provided; and (c) may rely on information provided by you before and during our telehealth Services encounter.
You understand that the Wombat MHS Telehealth Providers’ advice, recommendations, and/or decisions may be based on factors not within their control, such as incomplete or inaccurate data provided by you or distortions of diagnostic images, texts, sounds, or specimen that may result from electronic transmission issues. You understand that you must provide information about your medical history, condition(s), and current or previous medical care that is complete and accurate to the best of your knowledge and ability. You also understand that in the event the telehealth Services are interrupted due to a technology problem or an equipment failure, alternative means of communication may be implemented and/or an in-person medical evaluation with your Telehealth Provider may be necessary.
You understand that the level of care provided by Wombat MHS Telehealth Providers is to be the same level of care that is available to you through an in-person clinical social worker or therapist visit; provided, however, if Wombat MHS Telehealth Providers determine that the provision of telehealth Services, will not adequately address your mental health needs, the treating Wombat MHS Telehealth Provider(s) may refer you to another social worker, therapist, specialist or provider within the Wombat MHS network. [[In-person treatment]]
If, after a telehealth Services session, you experience any urgent medical symptoms or conditions, you should alert your treating physician or, in the case of an emergency, you must dial 911 or go directly to the nearest emergency room.
If required by law, Wombat MHS Telehealth Providers must share information regarding your telehealth Services sessions with your primary care physician. You hereby authorize Wombat MHS and your Wombat MHS Telehealth Provider(s) to share such information, which may include but is not limited to copies of your medical records, a report containing an explanation of the telehealth Services provided to you, and/or any evaluation, analysis, or diagnosis of your medical condition made by the Wombat MHS Telehealth Provider(s).
2.4 Primary Care Provider Relationship; No Medical Diagnosis.
Our Services are of a clinical therapeutic nature applying only in mental healthcare issues. The services you receive from licensed social worker and mental therapy care professionals through the site should not be used as a replacement for a primary care provider relationship. The Services you receive from licensed social worker and mental therapy care professionals through the site may not necessarily give rise to a provider-client relationship or an ongoing treatment relationship. You are expected to seek follow-up or emergency care when recommended by a health care professional or when otherwise needed, and you should continue to consult with your primary care provider and/or any other health care providers as needed or recommended. Additionally, the licensed social worker and mental therapy care professionals who provide services through the site may make recommendations and/or arrangements for follow-up care, as appropriate, and you are welcome to access our services for these follow-up visits. Our Services are intended to provide you with a wide range of psychologically therapeutic content and consultation enhancing the mental and cognitive wellbeing. The design and function of the services and its contents, such as information, questions, text, graphics, images, audio and video files, user help files, user interface, layout and presentation, and data relating to your use of the services, and other material contained in the services (“Content”) are not intended to function as medical diagnosis. Although certain Content has been prepared in consultation with healthcare professionals, the Content is not intended as medical diagnosis or treatment in lieu of consultation with a health care provider. Please consult your health care provider regarding any specific diagnosis, treatment or health questions. IF YOU ARE EXPERIENCING AN URGENT MEDICAL CONDITION, IMMEDIATELY CALL 9-1-1.
2.5 Data and Your Privacy.
The Services may include the sending of push-notifications, messages, emails, alerts via various means of communication. You can deactivate the push-notifications at any time by changing the notification settings on your device. By using the Services, you acknowledge and agree that the Services may contain telephone communications and/or text messages, and you represent and warrant that you are the primary owner of the phone number provided to us. You consent to receive telephone communications and/or text messages, which may be sent from an automated system. You understand that message and data rates may apply. Your consent to receive these types of communications is not required to use the Services, and you may unsubscribe from calls or texts at any time.
2.7 Service Changes.
We reserve the right, but are not obligated, to modify, improve, make any other changes to, or discontinue, temporarily or permanently the Services without notice, at any time. If we choose to supply you with any updates, upgrades and any new versions of the Wombat MHS Products (“Updates”) according to its then current policies, it may include automatic updating or upgrading of the Services with or without any additional notice to you and this Agreement will govern any such Updates unless these are accompanied by a separate license agreement which will prevail, and all references herein to the Services shall include such Updates. IN NO EVENT WILL WOMBAT MHS BE LIABLE FOR THE REMOVAL OF OR DISABLING OF ACCESS TO ANY PORTION OR FEATURE OF THE WOMBAT MHS SERVICES.
Wombat MHS represents and warrants that each relevant Telehealth Provider involved in providing the telehealth Services and Wombat MHS, as applicable, currently hold the necessary license(s) as required to perform the Services under this Agreement. Wombat MHS shall require the Telehealth Providers to render the any Services in accordance with the prevailing standard of care. Wombat MHS shall cause its Telehealth Providers to comply with all applicable governmental laws and regulations. Nothing in this Agreement shall be interpreted to interfere with a Telehealth Provider’s independent judgment in the practice of such Telehealth Provider’s profession. Wombat MHS Telehealth Providers, responsible for providing the licensed clinical social work and therapy Services, shall be subject to Wombat MHS’s direct supervision and control over such Telehealth Provider’s treatment. No clause or provision in this Agreement shall be interpreted as providing Wombat MHS or its Telehealth Providers any power or authority to act on behalf of you, or provide Wombat MHS or its Telehealth Providers any rights, duties, discretions or responsibilities enabling Wombat MHS or Telehealth Providers to dictate your treatment – for which such decision ultimately resides in your discretion and control.
- Eligibility and Platform Requirements.
3.1 No Users Under 18 Years Old.
Only users eighteen (18) years of age or older and who have accepted these Terms of Service may access the Platform or Services. By visiting, accessing, registering with or using the Platform, or by purchasing or using any Services through the Platform, you represent and warrant to Wombat MHS that you are a natural person and of 18 years of age or older. If you are under the age of 18, please do not attempt to access the Platform, register for our Services, or provide any personal information about yourself to us. If we learn that we have collected personal information from someone under the age of 18, subject to applicable laws, we will promptly delete that information. If you believe we have collected personal information from someone under the age of 18, please contact us at firstname.lastname@example.org.
3.2 Your Device Functionality.
You are responsible for obtaining and maintaining your device, software, operating system, carrier and network access necessary to properly access and use the Services. Wombat MHS does not guarantee that the Platform or any portions thereof will function on or in connection with any particular device, software, operating system, carrier, or network. Wombat MHS will have no liability for errors, unreliable operation, or other issues resulting from use of the Platform on or in connection with rooted or jail broken devices or use on any mobile device that is not in conformance with the manufacturer’s original specifications, including, but not limited to, use of modified versions of the operating system. All rate and data fees of your device’s carrier apply to your use of the Platform and Services and Wombat MHS is in no way responsible for your carrier rates and data fees, where applicable.
- User Account.
To access the Services on the Site, you must first create a personal user account with Wombat MHS through the Platform (“User Account”). To create a User Account, you must accept and agree to these Terms of Service. You may be required to satisfy certain conditions precedent imposed by Wombat MHS (including, for example, providing additional information to Wombat MHS, and entering into additional agreements with Wombat MHS and/or its third-party affiliates). You may only have one (1) User Account. A User Account is not transferable between individuals.
4.2 User Account Activity and Responsibility.
You agree that all information you submit to create your User Account, including but not limited to your name, date of birth, address, phone number, and email address, shall be truthful, accurate, and complete, and you shall maintain accuracy and completeness of the information associated with your User Account. You will be required to select a password to access your User Account. Your User Account is personal to you, and you are solely responsible for maintaining the confidentiality of the credentials to access your User Account, and you are responsible for all activity that occurs under your User Account. You may not allow another individual or third party to access, use, or modify your User Account. You are responsible for maintaining the security of your User Account, including keeping your login credentials secret to only yourself. Please contact email@example.com immediately if you suspect that another individual or third party has gained access to your User Account.
4.3 Refusal of Services on Fraud.
Wombat MHS may, but does not assume the obligation to, request further information from you to provide the Services. If you do not timely provide this information in the manner requested, we reserve the right to suspend, discontinue, or deny your access to and use of the Platform and the Services until you provide the information to us as requested. Without limitation, Wombat MHS may refuse to provide its Services to you, cancel your Services or deactivate your User Account for any reason in Wombat MHS’s sole discretion, including where we suspect fraud or illegal activity. This includes, but is not limited to, stolen payment information or falsified medical information.
4.4 Account Deactivation.
You may deactivate your User Account by contacting firstname.lastname@example.org. Without limiting the survival of certain provisions in these Terms of Service, the Terms of Service shall continue to apply to our relationship with you unless you deactivate your User Account in accordance with these Terms of Service. For clarity, canceling the Services will not operate to deactivate your User Account or the Terms of Service governing your User Account. [[ Notice that records pursuant to EHR Act is stored for 7 yrs ]]
- Revisions to this Agreement.
We may revise and update this Agreement from time to time without prior notice to you and will post the updated Agreement to the Site. ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Any changes to this Agreement will not apply retroactively to events that occurred prior to such changes.
- Fees, Payments and Recurring Billing.
6.1 Your Payment Information.
Wombat MHS will charge any fees associated with your User Account to your credit card or debit card on file with Wombat MHS, as identified in your User Account, in accordance with these Terms of Service, may do so on a recurring basis. Receipts for payments will be emailed to you and can be accessed through your User Account. You represent and warrant that (i) the credit card or debit card information you provide to Wombat MHS is true, correct and complete, and (ii) that you are the person in whose name the credit card or debit card was issued and/or you are authorized to make a purchase with the relevant credit card or debit card. You will promptly notify Wombat MHS if your payment information has changed, if your payment method has been canceled, or if you become aware of a breach of security. You acknowledge that we may process an authorization hold using your payment information in order to verify the information provided. If your payment card details change or are due to expire, we may request updated payment details from you, including your card number, expiration date, and CVV (or equivalent). By providing us updated payment information, you authorize us to continue to charge your card using the updated information so that you can continue to receive your Subscription or other Services.
Current fees are found here and may be amended from time to time.
6.2 Service Fees.
6.3 Subscriptions and Recurring Payments.
If you purchase a subscription to the Services (“Subscription”), with the exception of any free trial periods, Wombat MHS will charge you a Subscription fee at the rate presented to you (“Subscription Fee”). The Subscription gives you access to the Services for one month, or a different subscription period selected on the Platform (“Subscription Period”). Unless otherwise stated when you sign up for a Subscription, your selected Services will automatically renew for a further Subscription Period with the Subscription Fee (including any applicable taxes) and will continue to do so unless we are either no longer offering that Service, in which case we will notify you, or your Subscription has been canceled in accordance with these Terms of Service.
The billing period for your Subscription Fee begins from the time of registration (i.e., when you register, enter your payment method and pay the initial Subscription Fee), and again at the start of each subsequent Subscription Period. By signing up for a Subscription, you agree to pay your Subscription Fee in full each Subscription Period and authorize your payment method on file to be billed automatically each Subscription Period by Wombat MHS’s third-party payment processor for the entire length of your Subscription, regardless of whether or not you have used the Services during the Subscription Period, until your Subscription ends or is canceled. If any Subscription Fee is not paid in a timely manner, or your transaction cannot be processed, we reserve the right to suspend, disable, cancel or terminate your Subscription. You will be responsible for paying all past due amounts. You acknowledge that billing may not occur on the exact same date of each month.
6.4 Other Fees.
You agree to pay all other fees and charges associated with your User Account that are not included in the Subscription Fee, including, for example, appointment no-show fees, cancellation fees or late rescheduling fees, individual sessions with a Telehealth Provider that are not part of a Subscription, co-pays, co-insurance and deductibles and other costs not covered by your health insurance plan, and any fees for any Services that are not charged on a Subscription model (collectively, “Other Fees”), on a timely basis and according to the terms and the rates presented to you. By using the Services and incurring such Other Fees, you authorize us to bill and charge your payment method on file for such Other Fees in full.
6.5 Trials and Promotional Fees.
Wombat MHS may periodically offer discounts to its Services in the form of free trial periods or promotional fees. The terms of those discounts will be stated at the time you sign up or when you purchase a specific Service or product. If your Subscription includes a free trial, you will not be charged the applicable Subscription Fee during your free trial. To obtain the free trial, you will be required to provide a credit card or other payment method in order to ensure uninterrupted access and continued use after the expiration of the free trial. Upon completion of your free trial, your Subscription will automatically convert into a paid Subscription and your payment method will be charged the applicable Subscription Fee unless you have canceled your Subscription. If your Subscription includes a promotional fee, you will be charged the promotional fee for the relevant number of billing periods and upon completion of that period, your Subscription will continue to automatically renew at the full, non-promotional rate. You may cancel your Subscription during your free trial or promotional period to avoid being charged the full applicable Subscription Fee in accordance with Section 7 (Cancellations and Refunds).
You may only be permitted to use one free trial or promotional fee offer. If your Subscription is ever canceled or terminated for any reason, and you purchase an additional Subscription, you may not be eligible for a free trial or to take advantage of another promotional fee offer.
If you have health insurance, your insurance plan may cover all or a portion of your use of our Services, including costs associated with the telehealth Services. Subject to the terms of any written agreement between Wombat MHS and the insurance plan, if you provide information about your health insurance to us, that will be deemed your authorization for Wombat MHS and/or one of their affiliates or partners to submit claims and bill for Services on your behalf and share necessary information with the insurance plan to process payments and reimbursements. Wombat MHS is not enrolled with state health care programs such as Medicaid.
If Wombat MHS is in-network with your insurance plan, you may be eligible to pay a reduced Subscription Fee at the rates published on the Platform (the “In-Network Subscription Fee”), or you may be eligible for a basic services Subscription with no out-of-pocket Subscription Fee (a “Basic Services Subscription”). The In-Network Subscription Fee and any Basic Services Subscription does not include the cost of any co-pays for visits with Telehealth Providers, or co-insurance or deductibles, which will vary depending on your insurance plan and may be billed separately. You are also responsible for any Other Fees incurred that are not charged on a Subscription model (e.g., appointment no-show fees). The In-Network Subscription Fee, if applicable, and any co-pays, co-insurance, deductibles or Other Fees are your responsibility, not that of your insurance plan, even if Wombat MHS is considered in-network.
Your insurance policy is a contract between you and your insurance plan, and it is your responsibility to know your benefits, including if your insurance has any deductible, co-payment, co-insurance, out-of-network, usual and customary limit, prior authorization requirements or any other type of benefit limitation for the Services you receive, and how your benefits will apply to your payments. If you purchase Services with your insurance plan, you authorize Wombat MHS or one of its affiliates or third party partners to charge your payment method on file for the In-Network Subscription Fee, if applicable, and any fees not covered by your insurance, such as co-pays, co-insurance, deductibles, and Other Fees. If all or any portion of the Services are not covered or paid by your insurance plan for any reason or you do not have health insurance, you understand that you will be ultimately responsible for all fees and costs arising out of your use of the Services and agree to pay the full amount of all Subscription Fees and Other Fees associated with your User Account. Questions about non-payment should be directed to your insurance plan. You agree to inform Wombat MHS or your Provider immediately if you lose your health insurance and/or can no longer pay for treatment.
6.7 Changes to Subscription Fees, Other Fees or Subscription Features.
All fees published on the Platform are set by Wombat MHS in its sole discretion and we may change our fees from time to time. Wombat MHS will send notice of upcoming automatic renewal prior to renewing your Subscription as required by law. We may change the Subscription terms, Subscription Fees or Other Fees at any time on a going forward basis in our discretion. If the pricing for your Subscription increases, we will notify you, and provide you an opportunity to change or cancel your Subscription before applying those changes to your User Account or charging you in connection with an automatic renewal. We may choose in our sole discretion to add, modify, or remove benefits and features from a Subscription. Your continued enrollment in your Subscription after the changes become effective will constitute your acceptance of the changes. If you do not wish to continue your Subscription at the revised rates and/or terms, you must let Wombat MHS know prior to the end of your then current Subscription Period in accordance with Section 7 (Cancellations and Refunds) (so that at the end of that Subscription Period, your Subscription will end), otherwise the revised rate and/or terms will apply on and from the next Subscription Period.
6.8 Third-Party Payment Processor.
All credit card, debit card and other monetary transactions on or through the Platform occur through an online payment processing application that is provided by a third-party payment processor(s). Wombat MHS itself does not collect or store payment card information. If our third-party payment processor is unable to secure funds from your payment method for fees that are due for any reason, including, but not limited to, insufficient funds or insufficient or inaccurate information provided when submitting electronic payment, Wombat MHS may undertake further collection action, including application of fees to the extent permitted by law, and reserves the right to suspend or terminate your User Account or Services. These are the current third-party payment processors and their terms shall apply [[ BoA or SimplePractice/Headway terms on payment link here]].
6.9 Waiver of Claims and Unauthorized Payments.
You agree to waive all claims against Wombat MHS and its third-party affiliates, including Wombat MHS’s third-party payment processor(s), related to any unauthorized payments made on or through the use of your User Account outside of Wombat MHS’s control, regardless of whether such payments are authorized or unauthorized. However, you may submit a claim of the unauthorized payment to Wombat MHS so that Wombat MHS can conduct a reasonable investigation as it sees fit under the circumstances. If appropriate, Wombat MHS will assist in correcting the alleged unauthorized payment, provided that such claim is received by Wombat MHS within thirty (30) days of the disputed charge or payment.
6.10 Third-Party Funding.
You may pay for the Service Fees through payments made on your behalf from individuals designated by Wombat MHS, in its sole and reasonable discretion, as third-party payors (the “Third Party Givers”) in the event Wombat MHS decides, in its sole and reasonable discretion, your eligibility to have payments made by Third Party Givers based upon your financial status and income with respect to the Service Fees or any other fees in connection with the Services. Wombat MHS may analyze each individual client’s financial condition on a case by case basis, and a review Wombat MHS of your eligibility to apply amounts paid to the Service Fees or any other fees in connection with the Services through Third Party Givers does not guarantee that you will receive the benefits of payments through Third Party Givers. In the event that you are eligible and payments have been applied the Services from a Third Party Giver, Wombat MHS acknowledges and agrees that you shall still remain the client and all information about you and the Services concerning you shall remain confidential and not shared with the Third Party Giver.
If you are a Third Party Giver, then you may be able provide funding through Wombat MHS’s eCommerce platform found here subject to additional terms and conditions. [[ additional terms on a separate page ]].
- Cancellations and Refunds.
7.1 Canceling the Services and Subscription.
When you cancel the Services or Subscription, you cancel only future charges associated with your Services or Subscription. You may initiate your cancellation at any time, but the cancellation will become effective as of (i) the date of cancellation of the Services, and (ii) for a Subscription, at the end of your current Subscription Period. You can cancel by clicking “Cancel Subscription” in your User Account no later than the day before your next scheduled billing date to cancel your Subscription. If you do not cancel before this time, Wombat MHS reserves the right to charge you for the next Subscription Period and cancel your Subscription in the following Subscription Period.
Except as otherwise stated herein or required by applicable law, no refunds will be provided for a partial Subscription Period, but you will continue to have access to the Subscription until the next billing cycle. Notwithstanding any other terms, Wombat MHS reserves the right to cancel your Services or Subscription in its entirety at any time and for any reason, with or without prior notice. In the event that Wombat MHS exercises its right to cancel a Services or Subscription, it will refund any unused Services or current Subscription Period’s Subscription Fee as required by law.
Once you cancel your Services or Subscription, your access to and use of the Services will continue to the end of your then current Subscription Period and thereafter end, but you will continue to have access to certain information maintained within User Account, such as personal health information. Please note that all Services will end once cancellation takes effect. You should talk to your Telehealth Provider before discontinuing the Services. Abruptly stopping certain telehealth Services can impact your mental health.
Any other Services that are paid per Service (e.g., single visits with a Telehealth Provider not part of a Subscription) may be rescheduled but are not cancellable after purchase.
All purchases are final and once paid, all fees, including fees for the Services or Subscription Fees, are non-refundable regardless of whether Services are utilized, except as prohibited by applicable law. However, you may cancel your Services or Subscription at any time in accordance with Section 7 (Cancellations and Refunds) to stop incurring future any future fees, including the Subscription Fees. We reserve the right to issue refunds or credits at our sole discretion. If we issue a refund or credit in one instance, we are under no obligation to issue the same refund or credit in the future.
- Your License to Access the Services and Content.
Subject to the terms and conditions of this Agreement, we grant you a limited, non-exclusive, revocable and non-transferable right to access the Wombat MHS Products during the period you use the Services, access this Site, or covering the Subscription, for your personal use. Any use of the Wombat MHS Products in excess of this license is strictly prohibited and constitutes a violation of this Agreement, which may result in the termination of your right to access and use the Services, and receive treatment if you do not abide by these Terms of Service.
- License Limitations.
Except as expressly permitted by the terms of this Agreement, you shall not engage in:
- impersonating or misrepresenting your identity or your affiliation with a person or entity;
- creating more than one User Account, or forging or manipulating headers or identifiers to disguise the origin of any content transmitted through the Platform;
- allowing any unauthorized person to access your User Account or to receive Services;
- harassing, threatening, abusing, defaming, demeaning, discriminating against, intimidating or exhibiting other harmful or disrespectful behavior toward the Telehealth Providers or staff of Wombat MHS and relevant third parties providing Services to you, or disrupting the care of other clients, as we determine in our sole discretion;
- accessing the Platform or using the Services, or other products available through the Platform and Services, in any unlawful way or for any unlawful purpose (including in violation of United States export laws concerning the transmission of technical data and regulated materials via the Internet);
- using any software, program, process, device, application or routine (e.g. robots, scripts, scrapers, spiders, viruses, spyware, and malware) to monitor, copy, disrupt, damage, injure, decrypt, interfere, tamper, hack, spoof, modify or otherwise corrupt the administration, security or proper functioning of the Platform or any servers which may host the Platform;
- accessing data not intended for you or logging onto a server or a User Account which you are not authorized to access;
- posting or transmitting any data, materials, content, or information (including, without limitation, advice, and recommendations) which contains or promotes any virus, worm, Trojan horse, time bomb, malware, or other computer programming or code that is designed or intended to damage, destroy, intercept, download, interfere, manipulate, or otherwise interrupt or expropriate the Platform or the Services, personal information, software, equipment, servers, or facilitate or promote hacking or similar conduct;
- attempting to reverse engineer, reverse assemble, reverse compile, decompile, disassemble, translate, or otherwise alter, defraud, or create false results from any executable code, information on, or received by this Platform;
- running any antivirus or antispyware software that is set to override the internet browser’s cookies setting;
- in any way infringing, misappropriating or otherwise violating any copyrights, trade secrets, or other rights of Wombat MHS or any third party;
- incorrectly identifying the sender of any message transmitted to Wombat MHS or altering the attribution or origin of electronic mail, messages, or posting;
- violating the privacy rights of any person, including harvesting or collecting personal information or personal health information about any other individual who uses the Platform or the Services;
- transmitting, or procuring the sending of, any advertising or promotional material without our prior written consent, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation;
- otherwise using the Services in any manner that exceeds the scope of use granted herein; and/or
- attempting to indirectly undertake any of the foregoing or encouraging or enabling any other individuals to do or attempt any of the foregoing.
Your User Account may be terminated for any of the above infractions. You agree to defend, indemnify, and hold harmless Wombat MHS and its Related Parties (as defined below) from and against all third party claims, damages, and expenses (including, but not limited to, reasonable attorneys’ fees) against or incurred by us arising out of any User Content you upload to or transmit through the Platform or any breach of the Terms of Service, including this Section 8. Violations of applicable laws and system or network security may result in civil or criminal liability. Wombat MHS may investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.
8.3 Acceptable Use of the Services.
You are responsible for the way in which you access and use the Services and for any materials stored, posted or uploaded to, or distributed or transmitted through, the Services by or on behalf of you. You shall use commercially reasonable efforts to prevent any unauthorized access to or use of the Services and, in the event of any such unauthorized access or use, shall promptly notify us. You shall comply with all applicable laws, regulations, rules and codes with respect to your activities relating in any way to your use or exploitation of the Services. Your access to this Services is provided on a temporary basis with no guarantee for future availability. We reserve the right to withdraw or modify any content or services we provide on the Services without notice.
- Further Obligations to Wombat MHS.
- you will use the Services only for purposes permitted by this Agreement;
- you are responsible for maintaining the confidentiality of your User Account information at all times;
- you are solely responsible for the use and maintenance of your User Account;
- we may deny anyone access to a User Account or the Services at any time and for any reason without notice;
- we are not obliged to confirm the identity of any Services users, User Account holders, or anyone having access to your User Account; and
- in the event that we believe that you have breached a term of this Agreement or any other terms or policies referenced herein, including the Content Standards, or if you otherwise create risk or possible legal exposure for us, we may, at our sole discretion terminate or suspend your Account with us, and you will not be entitled to a refund of any Services provided for the period up to and including the date of suspension or termination of your Account resulting from a breach of this Agreement.
- Intellectual Property.
You acknowledge and agree that, as between you and us, we own all intellectual property rights in the Sites, our content and the Services. Nothing in this Agreement constitutes a transfer of any intellectual property rights from us to you. The Content and any material provided to you in conjunction with the Services may be subject to copyright and other intellectual property laws. You may not use or reproduce or allow anyone to use or reproduce any Content (including the “Wombat MHS” name and logo or other trade names appearing on the Sites) for any reason without prior written permission from us. The software that operates the Sites is proprietary software and you may not use it except as expressly allowed under this Agreement.
10.2 Restrictions of Use.
You may retrieve and display the Services or content from the Sites on a computer screen or mobile device, print individual pages on paper (but not photocopy them) and store such pages in electronic form on your computer or mobile device for your personal, non-commercial use. Except as expressly permitted by this clause, you may not reproduce, modify or in any way commercially exploit our Services or content on the Site. In particular, but without limiting the general application of the restrictions in the previous sentence, you may not do any of the following without prior written permission from Wombat MHS:
- reproduce or store in or transmit to any other website, newsgroup, mailing list, electronic bulletin board, server or other storage device connected to a network or regularly or systematically store in electronic or print form, all or any part of the Services or content;
- publish, transmit, participate in the transfer or sale of, reproduce, create derivative works from, distribute, perform, display, or in any way exploit all or any part of the Services or content (including as part of any library, archive or similar service); or
- remove the copyright or trademark notice from any copies of the content made under this Agreement.
- Your Content.
You are solely responsible for any material, opinion, content or data that you post, publish or otherwise transmit through the Services; or obtain through accessing or using the Services (collectively, “User Content”). By posting or adding any User Content to the Services, you grant us a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable license and sub-license to use that User Content in any way (including, without limitation, by reproducing, changing, translating, and communicating the User Content to the public) and permit us to authorize any other person to do the same thing. This license will survive any termination of this Agreement. You represent and warrant to us that you have all necessary rights in respect of any User Content which you post or otherwise contribute to the Services to grant the licenses and consents set out in this clause. You waive any moral rights that you may have in regard to your User Content, and if you add any User Content in which any third party has moral rights, you must also ensure that the third party also consents in the same manner.
You acknowledge that the views expressed in User Content provided by you and other users do not necessarily reflect the views of Wombat MHS, and we do not support or endorse any user content.
You acknowledge that we have no obligation to pre-screen, monitor, review, or edit any content posted by you and other users on our Services. For the avoidance of doubt, we will not be taken to have uploaded, posted, transmitted or otherwise made User Content available on the Services simply by facilitating others to post, transmit or otherwise make the User Content available. Furthermore, we do not endorse any opinion, advice or statement made by any person other than us.
We reserve the right, but are not obligated, to: a) review, modify, reformat, reject or remove any User Content which you upload, post, transmit or otherwise make available (or attempt to upload, post, transmit or otherwise make available) that, in our opinion, violates this Agreement or otherwise has the potential to harm, endanger or violate the rights of any person; and b) monitor use of the Services, and store or disclose any information that we collect, including in order to investigate compliance with this Agreement or for the purposes of any police investigation or governmental request.
If you believe that any User Content infringes your legal rights, you should notify Wombat MHS immediately by contacting our client service center.
All data and information which you input into the Service, including data and information gathered and transmitted to the Service by any hardware used with the Services (collectively, “User Data”) is stored in a private and secure fashion, and will not be used by Wombat MHS except as permitted herein. You hereby grant to Wombat MHS a limited, non-exclusive, non-transferable, royalty-free right to use, reproduce, manipulate, display, transmit and distribute the User Data solely in connection with providing the Services to Customer during the subscription term, and improving and developing the Services and Wombat MHS’s other products, software or services. Wombat MHS may analyze User Data, and data of other users, to create aggregated or anonymized statistics or data that do not identify you or any individual and may use and disclose such statistics or data in its sole discretion. Except as specified otherwise in this Agreement, you shall be solely responsible for providing, updating, uploading and maintaining all User Data. Wombat MHS will implement and maintain administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of protected health information as required under applicable privacy law. The content of User Data shall be your sole responsibility. Wombat MHS does not guarantee the accuracy, integrity or quality of User Data. For clarity, User Data will only be accessible to you during the applicable subscription term. You shall not: (a) upload or otherwise make available to Wombat MHS any User Data that is unlawful or that violates the rights of any third parties; (b) upload or otherwise make available to Wombat MHS any User Data that you do not have a right to transmit due to any law, rule, regulation or other obligation; (c) use, upload or otherwise transmit any User Data that infringes any intellectual property, other proprietary rights or other rights of any third party; or (d) except as permitted by and in compliance with applicable privacy related laws, upload or otherwise make available to Wombat MHS any third party data that constitutes protected health information under applicable privacy related laws.
- Content Standards.
These content standards apply to any and all User Content and use of the Services or Platform. User Content must in their entirety comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, User Content must not:
- Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
- Promote violence, sexually explicit or pornographic material, or discrimination based on gender, religion, nationality, disability, race, sexual orientation, gender expression, or age.
- Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.
- Be likely to deceive any person.
- Promote any illegal activity, or advocate, promote or assist any unlawful act.
- Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm. or annoy any other person.
- Impersonate any person, or misrepresent your identity or affiliation, with any person or organization.
- Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
- Give the impression that they emanate from, or are endorsed by, us or any other person or entity, if this is not the case.
Separate and apart from User Content, you may submit questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information about us and our Wombat MHS Products (collectively, “Feedback”). You agree that Wombat MHS and its affiliates shall be able to use the Feedback in any way they may choose without any obligation to you.
- System Unavailability.
There may be times when the Services are unavailable due to technical errors or for maintenance and support activities. We do not represent, warrant, or guarantee that the Services will always be available or is completely free of human or technological errors.
The Services may contain typographical mistakes, inaccuracies, or omissions and some information may not be complete or current. We expressly reserve the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice. We do not make any representation or warranty concerning errors, omissions, delays, or defects in the Services or any information supplied to you via the Services, or that files available through Services are free of viruses, worms, Trojan horses, or other code that include or manifest contaminating or destructive characteristics.
You must provide the equipment and Internet connections necessary to access the Services at your own expense. We do not guarantee that the Services will operate with your computer, mobile device, internet service plans, or mobile provider service plans or with any particular computer or other piece of hardware, software, equipment, or device you install on or used with your computer.
- Third Party Services.
Wombat MHS Products can be used to access software, applications, services, content, and virtual items (including, but not limited to, third-party digital content, additional or enhanced functionality, or media content purchased through Wombat MHS Products) provided by third parties ( “Third Parties”) (collectively, the preceding are the “Third-Party Services”). In some cases, we may distribute Third-Party Services to you on behalf of the third party. WE DO NOT MAKE ANY WARRANTIES ABOUT ANY THIRD-PARTY SERVICES. ANY WARRANTY, DAMAGES OR INDEMNITY CLAIMS AGAINST US IN RELATION TO SUCH THIRD-PARTY SERVICES ARE EXPRESSLY EXCLUDED.
Third-Party Services may be subject to additional terms, conditions, fees, and policies imposed by the third party (together, “Third-Party Terms”). In the event that Third-Party Terms conflict with the provisions of the terms of this Agreement, the terms of this Agreement will govern. You are responsible for complying with any applicable Third-Party Terms, and we recommend that you review any applicable Third-Party Terms before using Third-Party Services. Your use of Third-Party Services is at your own risk. We have no obligations or liability with respect to transactions you enter into with a third party, your access to or use of any Third-Party Services, or any content or functionality therein, your rights to which are solely provided pursuant to a license between you and the provider of such Third-Party Services.
In no event will Wombat MHS be considered the licensor of Third-Party Services, to have granted any rights to use Third-Party Services, to have assumed any obligations (including support obligations) with respect to the Third-Party Services, or to have made any representations or warranties with respect to the Third-Party Services. Wombat MHS and its affiliates have no liability for any information that you provide or authorize us to provide to a provider of a Third-Party Service, or for such third party’s collection, use and disclosure of such information. If you are not presented with an end user license agreement when you acquire Third-Party Services, the following license terms apply to your use of such Third-Party Services: (a) the third party providing the Third-Party Services (and not Wombat MHS or its affiliates) is the licensor of such Third-Party Services; (b) such third party grants you a limited, non-transferable license to access and use the Third-Party Services only for your personal and non-commercial purposes; and (c) you may not modify, decompile or disassemble the Third-Party Services in whole or in part, or create any derivative works from or sublicense any rights in or to the Third-Party Services, unless otherwise expressly authorized by the third party or as permitted under applicable law notwithstanding these restrictions. Wombat MHS and its affiliates are not parties to the license agreement between you and the provider of such Third-Party Services or other Third-Party Terms.
Third-Party Services may require access to Wombat MHS data and services, which is subject to agreements between the third parties that provide such Third-Party Services and us. We may disable this access for a Third-Party Service if the third party does not comply with these agreements, our policies, or applicable law, or if the agreements are otherwise terminated. This may adversely affect your use of such Third-Party Services, including by making such Third-Party Services partially or fully inoperable. We will not incur any liability to you if we remove or disable access to data and services by a third party for these reasons. This means, without limitation, that we will not provide you with any refunds for such Third-Party Services in these cases. Any rights, including refund claims, which you may have under your agreements with third parties remain unaffected.
YOU AGREE TO INDEMNIFY THE WOMBAT MHS INDEMNIFIED PARTIES FROM ANY AND ALL CLAIMS, DAMAGES, EXPENSES, FEES, LIABILITIES, AND LOSSES, INCLUDING ATTORNEYS’ FEES, ARISING FROM YOUR USE OF, OR INABILITY TO USE, ANY THIRD-PARTY SERVICES.
18.1 Consent to Electronic Communications.
By opting in to use Wombat MHS’s Platform and Services, you affirmatively consent to conduct business electronically with Wombat MHS and you agree that (a) all agreements and consents can be signed electronically, and (b) all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such notices and other communications be in writing.
18.2 Consent to Receive Calls and Text Messages.
By providing your mobile number, sending Wombat MHS an initial text, or otherwise opting-in to receive telephonic communications from Wombat MHS, you are agreeing to be contacted by or on behalf of Wombat MHS at the mobile number you have provided, including calls and text messages, regarding your User Account and use of the Platform and Services. These text messages or calls may be automated and may include information about your treatment plan, appointment reminders, order confirmations, shipping notifications, messages from your Provider, and other transactional messages. You may also sign up to receive promotional and marketing calls and text messages. You are not required to consent to promotional and marketing calls and text messages as a condition of purchase. You may update your notification preferences from Wombat MHS at any time by going through your User Account. By consenting to receive Wombat MHS text messages, you represent that you are the subscriber of the cellular service at the mobile number provided or that you are authorized by the subscriber to sign-up for texts.
Wombat MHS does not charge you for our text message program. But if you enroll in text messages from Wombat MHS, you understand and agree that: (1) you will be responsible for any message and data rates that may apply for any messages sent to you from Wombat MHS and to Wombat MHS from you, (2) message frequency may vary, and (3) neither Wombat MHS, nor your or Wombat MHS’s mobile carriers, are liable for delayed or undelivered messages. If you have any questions about your text plan or data plan, it is best to contact your wireless provider.
We may send you one or more welcome messages or administrative messages, such as (in some cases), a request to confirm your opt-in. After that, you will receive recurring text messages, and the specific amount may vary depending on how you use our Services (e.g. if you communicate with us through SMS, or if you send a HELP request).
Our text messages are supported on all U.S. carriers. Please note, however, that the supporting mobile carriers may change without notice, and the particular text message program you join may be limited to specific carriers.
You can opt out of marketing text messages from Wombat MHS at any time by texting the word “STOP” to a text message from Wombat MHS. After you send the text message “STOP” to us, we will send you a text message to confirm that you have been unsubscribed. After this, you will no longer receive text messages from Wombat MHS unless and until you re-consent to receiving text messages again. You also understand and agree that we have provided you with reasonable methods of opting out, and that any other method of opting out, including, but not limited to, texting words other than “STOP” or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out. Please be advised that if you opt out of marketing text messages, Wombat MHS may still send you transactional text messages about your User Account or use of the Platform and Services.
You can opt out of transactional text messages by updating your notification preferences in your User Account. We may send you a text message to confirm your opt out of transactional text messages. Please note that if you withdraw your consent to receive text messages, some Platform features and certain Services may no longer be available to you and you may not receive important and helpful information and reminders about your Services.
If you have revoked consent and want to re-enroll in receiving transactional text messages, you can re-enroll by updating your notification preferences in your User Account.
If you are experiencing issues with Wombat MHS’s text messaging program, you can text the word “HELP” to a text message from Wombat MHS for more assistance, or you can get help directly at 909-315-2523 or email@example.com.
18.3 Sensitive Communications.
You understand that while Wombat MHS takes your privacy and the security of your health and other sensitive information very seriously, the transmission of information over the internet and mobile networks is not 100% secure. Text messages and emails that you send to or receive from Wombat MHS outside of Wombat MHS’s Platform (including off-Platform communications with Providers) are not encrypted, which means that it is possible they may be intercepted by third parties. If you choose to send or receive information about your health or any other sensitive information by text message or email outside of Wombat MHS’s Platform, you do so at your own risk. By opting into text messages, you consent to sending text messages to Wombat MHS, and receiving text messages from or on behalf of Wombat MHS, that are not encrypted. Likewise, by emailing Wombat MHS or giving Wombat MHS your email, you consent to receiving unencrypted emails messages from or on behalf of Wombat MHS.
- Disclaimers of Warranties; Limitation of Liability; Release; Indemnification.
19.1 Disclaimer of Warranties.
YOU EXPRESSLY AGREE THAT ANY ACCESS AND USE OF THE PLATFORM AND SERVICES IS VOLUNTARY AND AT YOUR SOLE RISK. THE PLATFORM AND SERVICES ARE PRESENTED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, WOMBAT MHS AND EACH OF THE TELEHEALTH PROVIDERS OFFERING SERVICES VIA THE PLATFORM DISCLAIM ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE PLATFORM, THE SERVICES, AND ANY CONTENT, INFORMATION, PRODUCT, SERVICE OR OTHER MATERIALS PROVIDED ON OR THROUGH THE PLATFORM OR THE SERVICES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THE QUALITY, ACCURACY, COMPLETENESS OR TIMELINESS OF INFORMATION, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS. WOMBAT MHS DOES NOT WARRANT THAT THE PLATFORM WILL FUNCTION WITHOUT DELAYS, DISRUPTIONS, INTERFERENCES, IMPERFECTIONS, CORRUPTION, CYBER ATTACK, VIRUSES, MALWARE, OR ANY ADVERSE INCIDENT, OR THAT DEFECTS IN THE PLATFORM WILL BE CORRECTED. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACK-UP AND SECURITY.
WOMBAT MHS DOES NOT GUARANTEE THAT THROUGH USE OF OUR SERVICES, ANY PRESCRIPTIONS WILL BE WRITTEN FOR YOU. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE USE OR MISUSE OF THE PRODUCTS OBTAINED THROUGH OUR PLATFORM OR SERVICES MAY RESULT IN UNDESIRABLE OR UNEXPECTED CONSEQUENCES. TO THE FULLEST EXTENT OF APPLICABLE LAW, WOMBAT MHS AND ANY OF ITS AND THEIR RESPECTIVE AFFILIATES DO NOT ACCEPT ANY LIABILITY FOR THE CONSEQUENCES ARISING FROM THE APPLICATION, USE, OR MISUSE OF ANY PRODUCTS (INCLUDING MEDICATION) OR SERVICES CONTAINED ON OR MADE AVAILABLE THROUGH THE PLATFORM, INCLUDING ANY INJURY OR DAMAGE TO ANY PERSON OR PROPERTY AS A MATTER OF NEGLIGENCE, OR OTHERWISE.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH THE TELEHEALTH PROVIDERS OR OTHER USERS OF THE PLATFORM. WOMBAT MHS SHALL NOT BE LIABLE FOR THE ACTS OR OMISSIONS OF THE WOMBAT MHS TELEHEALTH PROVIDERS OR ANY OTHER THIRD PARTY SERVICE PROVIDERS RELATED TO THE SERVICES.
19.2 Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY LAW, WOMBAT MHS AND ANY OF THE TELEHEALTH PROVIDERS, AND ANY OF WOMBAT MHS’S AND SUCH THIRD PARTIES’ OFFICERS, DIRECTORS, MEMBERS, MANAGERS, OWNERS, SHAREHOLDERS, PARTNERS, AGENTS, EMPLOYEES, REPRESENTATIVES, AFFILIATES, SUCCESSORS, ASSIGNS, TRANSFEREES, CONTRACTORS, OR LICENSEES (COLLECTIVELY, THE “RELATED PARTIES”), ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, SUBSTITUTE SERVICES, OR BUSINESS INTERRUPTION, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS, INCLUDING DEATH) CAUSED BY OR ARISING FROM OR IN CONNECTION IN ANY WAY TO THE PLATFORM, PRODUCTS, SERVICES, CONTENT OR INFORMATION CONTAINED WITHIN THE PLATFORM, INCLUDING ANY SERVICES PERFORMED OR PRODUCTS OFFERED BY THE THIRD PARTIES (AS DEFINED HEREIN), WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE PLATFORM OR SERVICES IS TO STOP USING THE PLATFORM OR THOSE SERVICES. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM LIABILITY OF WOMBAT MHS, THE THIRD PARTIES OR WOMBAT MHS’S AND THE THIRD PARTIES’ RELATED PARTIES TO YOU WITH RESPECT TO YOUR USE OR ACCESS OF (OR INABILITY TO USE OR ACCESS) THE PLATFORM OR SERVICES IS THE AMOUNT OF ALL FEES PAID TO WOMBAT MHS IN A 12 MONTH PPERIOD. YOU HEREBY AGREE TO WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL LAWS THAT LIMIT THE EFFICACY OF SUCH LIMITATIONS OR RELEASES.
ANY CLAIMS ARISING IN CONNECTION WITH YOUR USE OF THE PLATFORM OR SERVICES MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE DATE OF THE EVENT GIVING RISE TO WHEN SUCH ACTION OCCURRED. EXCEPT AS EXPLICITLY PROVIDED HEREIN, YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE PLATFORM OR SERVICES IS PREDICATED UPON YOUR WAIVER OF ANY RIGHT TO PARTICIPATE IN A CLASS ACTION SUIT FOR ANY LOSSES OR DAMAGES RESULTING FROM YOUR USE OF THE PLATFORM OR SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. TO THE EXTENT THAT WE MAY NOT DISCLAIM ANY IMPLIED WARRANTY OR LIMIT ITS LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER APPLICABLE LAW.
- Modification, Suspension, or Termination of Platform, Services, or User Accounts.
20.1 Termination or Suspension of Platform, Services, or User Accounts.
Wombat MHS has the right to suspend or terminate the function or existence of all or any part of the Platform and/or your User Account at any time, and without notice as it deems advisable, including where you violate these Terms of Service, as required by law, or due to security or welfare concerns. To the extent permitted by applicable law, Wombat MHS shall not be liable to you or any third party(s) for any loss or damage that is caused by or arises from or in connection with any such suspensions or terminations. If Wombat MHS has previously prohibited you from accessing or using the Platform, you are not permitted to access the Platform or its Services.
The provisions of these Terms of Service which by their nature are intended to survive termination or expiration hereof shall survive, including, without limitation, Section 6 (Fees, Payments and Recurring Billing); Section 7 (Cancellations and Refunds); Section 10 (Intellectual Property); Section 17 (Third-Party Services Section 18 (Communications); Section 19 (Disclaimer of Warranties; Limitation of Liability; Release; Indemnification); Section 20 (Modification, Suspension, or Termination of Platform, Services, or User Accounts); Section 21 (Dispute Resolution); and Section 22 (General Terms).
20.3 Changes to the Platform and Services.
All information contained on the Platform, including descriptions, images, references, features, content, specifications, products, and prices of any products or Services offered by Wombat MHS or its related third parties on or through the Platform, are subject to change at any time and without notice to you (but you are at all times entitled to your rights under Section 7 (Cancellations and Refunds) if you are unhappy with such changes).
- Dispute Resolution.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
We will try to work in good faith to resolve any issue you have with the Platform and Services if you bring that issue to the attention of our client service department. However, we realize that there may be rare cases where we may not be able to resolve an issue to a client’s satisfaction. If you have a dispute with us, you agree to resolve such dispute on an individual basis in accordance with the provisions set forth below.
21.1 Initial Dispute Resolution.
Our client support department is available to address any concerns you may have regarding the Platform or Services. The parties shall use their best efforts through this support process to settle any dispute, claim, question, or disagreement and engage in good faith negotiations which shall be a condition to either party initiating a lawsuit or arbitration. Failure to engage in this process could result in the award of fees against you in arbitration. To adequately engage in initial dispute resolution, each party must notify the other party, in writing, of the facts of the dispute and all damages claimed. Such a writing must be sent to (a) the user’s email address on file with Wombat MHS, or (b) Wombat Mental Health Services, a California Licensed Social Worker Corporation, 340 S Lemon Ave #9892 Walnut, CA 91789 (“Dispute Notification”). The party receiving the Dispute Notification has thirty (30) days from receipt of the Dispute Notification to respond. The other party then has 15 days to reply to the response.
21.2 Agreement to Arbitrate.
If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution begins under the Initial Dispute Resolution provision, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below.
Except as explicitly set forth in this Section 21.2, the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms of Service, including, but not limited to, any claim that all or any part of these Terms of Service are void or voidable; whether a claim is subject to arbitration, any dispute regarding the payment of administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment); your relationship with Wombat MHS and its related parties; any disputes with the Telehealth Providers and/or relating to the Platform or Services or products provided through the Platform; your User Content; the threatened or actual suspension, deactivation, or termination of your User Account; payments made by you or any payments made or allegedly owed to you; any promotions, benefits, or other offers; and any other federal and state statutory and common law claims. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator shall also be empowered to consolidate claims raised between the same parties to a single arbitration proceeding. The parties agree that the arbitrator may allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. The arbitrator’s award shall be written and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.
Arbitration is more informal than a lawsuit in court: there is no judge or jury in arbitration; discovery in arbitration may be more limited than discovery in litigation; and court review of an arbitration award is limited. This agreement to arbitrate (“Arbitration Terms”) also applies to claims between you and the Telehealth Providers and such parties will be considered intended third-party beneficiaries of these Arbitration Terms. As used in these Arbitration Terms, the “Arbitral Parties” shall refer to Wombat MHS, any Telehealth Providers, and any affiliated or related parties to Wombat MHS in connection with the Site, Platform or Services.
Unless you, Wombat MHS and the applicable Arbitral Parties otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class, collective, consolidated or representative proceeding.
The arbitration will be administered by JAMS in accordance with the provisions of its Streamlined Arbitration Rules and Procedures (the “JAMS Rules”), excluding any rules or procedures governing or permitting class or representative actions and except that each party will be permitted at least one deposition unless forbidden by JAMS. If for any reason JAMS is unable to administer arbitration, either party may apply to a court to appoint an arbitrator pursuant to 9 U.S.C. section 5. The JAMS Rules governing the arbitration may be accessed at www.jamsadr.com or by calling JAMS at (800) 352-5267. If you commence arbitration in accordance with these Terms of Service, you will be required to pay $250 to initiate the arbitration. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, the arbitrator may require Wombat MHS to pay the additional cost. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise. If the arbitrator finds the arbitration to be non-frivolous, Wombat MHS will pay the remaining filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. For claims above $75,000, fees and costs will be determined in accordance with applicable JAMS rules. The arbitration rules permit you to recover attorney’s fees in certain cases. The parties agree that JAMS has discretion to modify the amount or timing of any administrative or arbitration fees due under JAMS’s rules where it deems appropriate, provided that such modification does not increase the costs to you, and you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by JAMS does not constitute a default, waiver, or breach of these Arbitration Terms while such challenge remains pending before JAMS, the arbitrator, and/or a court of competent jurisdiction.
The Federal Arbitration Act (“FAA”) will govern the interpretation and enforcement of these Arbitration Terms. It is your, Wombat MHS’s, and the Arbitral Parties’ intent that the FAA and JAMS Rules will preempt all state laws to the fullest extent permitted by law. If the FAA and JAMS Rules are found to not apply to any issue that arises under these Arbitration Terms or the enforcement thereof, then that issue will be resolved under the laws of the State of California. These Arbitration Terms governs to the extent it conflicts with the JAMS Rules or FAA.
Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party’s identity, the claims being asserted, and the factual allegations on which they are based. The arbitrator and/or JAMS may require amendment of any demand or counterclaim that does not satisfy these requirements.
Unless you, Wombat MHS and the applicable Arbitral Parties otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you, Wombat MHS and any applicable Arbitral Parties submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the JAMS Rules. Subject to the JAMS Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. The arbitrator has the right to impose sanctions for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11).
The arbitrator will render an award within the time frame specified in the JAMS Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The prevailing party in arbitration will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
21.3 Class Action Waiver.
YOU, WOMBAT MHS, AND THE ARBITRAL PARTIES MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY CLAIM OR DISPUTE AGAINST EACH OTHER ON AN INDIVIDUAL BASIS IN ARBITRATION. This will prohibit you from bringing any class, collective, or consolidated action against Wombat MHS or any of the Arbitral Parties, and will also prohibit you from participating in or recovering relief under any current or future such actions brought against Wombat MHS or any of the Arbitral Parties by someone else.
21.4 Exception – Litigation of Intellectual Property and Small Claims Court Claims.
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also elect to have disputes or claims resolved in a small claims court that are within the scope of that court’s jurisdiction. Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court in your state and county of residence. Seeking such relief shall not waive a party’s right to arbitration under this agreement.
21.5 30-Day Right to Opt Out.
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following email address: info@WombatMHS.com. The notice must be sent within 30 days of May 13, 2022 or your first use of the Platform, whichever is later, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. Your notice must include your name and address, the email address you used to set up your Wombat MHS User Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt-out of these arbitration provisions, Wombat MHS also will not be bound by them, but all other parts of these Terms of Service will continue to apply to you.
21.6 Changes to this Section.
Wombat MHS will provide 30 days’ notice of any changes affecting the substance of this Section 14. Changes will become effective on the 30th day. If you continue to use the Platform or its Services after the 30th day, you agree that any unfiled claims of which Wombat MHS does not have actual notice are subject to the revised clause.
- General Terms.
22.1 Governing Law.
These Terms of Service shall be governed in all respects by the internal substantive laws of the State of California, without regard to its conflict of laws principles. Except for claims that must be arbitrated pursuant to the Arbitration Terms, any claim or dispute arising in connection with the Platform or Services shall be decided exclusively by a court of competent jurisdiction located in San Bernardino County, California, and you consent to the personal jurisdiction of and venue in such courts and waive any and all jurisdictional and venue defenses or objections otherwise available.
22.2 Force Majeure.
22.3 Amendments to Terms of Service.
Except as provided in the Dispute Resolution provision in Section 21, Wombat MHS may revise these Terms of Service from time to time without notice to you. If we determine a revision to the Terms of Service, in our sole discretion, is material, we will notify you as required by law. These changes will be posted on this or a similar page of the Platform. By continuing to access or use our Platform or Services after those revisions become effective, you agree to be bound by the revised terms. We encourage you to read these Terms of Service periodically.
22.4 Severability and Entire Agreement.
In the event that any of the Terms of Service are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms of Service shall otherwise remain in full force and effect. These Terms of Service constitute the entire agreement between Wombat MHS and you pertaining to the subject matter hereof.
22.5 No Waiver.
No waiver of any term of the Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and Wombat MHS’s failure to assert any right or provision under the Terms of Service shall not constitute a waiver of such right or provision.
You may not assign, transfer, or delegate the Terms of Service or any part thereof without Wombat MHS’s prior written consent. Wombat MHS may freely transfer, assign, or delegate all or any part of the Terms of Service, and any rights or duties hereunder or thereunder. The Terms of Service will be binding upon and inure to the benefit of your and Wombat MHS’s heirs, successors, and permitted assignees.
22.7 No Third Party Rights.
By accepting these Terms of Service, you acknowledge and agree that any Services you receive from the Telehealth Providers, and any other third party providers, through the Platform are also subject to these Terms of Service, and that the Telehealth Providers, and any other third party providers, are third-party beneficiaries of these Terms of Service. Otherwise, unless expressly stated in the Terms of Service to the contrary, nothing herein is intended to create or establish third-party beneficiary status rights or their equivalent in any other referenced individual, subcontractor or third party, and, except as specifically set forth in these Terms of Service, no third party shall have any right to enforce any right or enjoy any benefit that is created or established under these Terms of Service.
- Contact Us.
Please direct any questions you may have about the Platform, Services, or these Terms of Service to any one of the following:
By email: Info@WombatMHS.com
Wombat Mental Health Services
9431 Haven Ave., Suite #100
Rancho Cucamonga, CA 91730
The foregoing contact information may change from time-to-time by supplementation, amendment, or modification of these Terms of Service.