Terms of Service
Please read these Terms of Service (the “Terms”) and our Privacy Policy (“Privacy Policy”) carefully because they govern your use of the websites located at berrystreet.co (collectively, the “Site”) and our nutrition therapy platform services (as further described below) accessible via the Site and the corresponding mobile applications (“App”) offered by Greater Better Health, Inc. d/b/a Berry Street and its affiliates (collectively, “Berry Street,” “we,” “us,” or “our”). To make these Terms easier to read, the Site, App and our technology services are collectively called the “Services.”
IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND BERRY STREET THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 21 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION.
USE OF THE SERVICES IS NOT FOR EMERGENCIES. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911 OR GO TO THE NEAREST OPEN CLINIC OR EMERGENCY ROOM. IF YOU’RE HAVING SUICIDAL THOUGHTS, CALL 1-800-273-TALK (8255) TO TALK TO A SKILLED, TRAINED COUNSELOR AT A CRISIS CENTER IN YOUR AREA AT ANY TIME (NATIONAL SUICIDE PREVENTION LIFELINE). IF YOU ARE LOCATED OUTSIDE THE UNITED STATES, CALL YOUR LOCAL EMERGENCY LINE IMMEDIATELY. THE SERVICES ARE NOT APPROPRIATE FOR ALL MEDICAL CONDITIONS OR CONCERNS.
Our Services. Our Services help you manage your health information and allow you to communicate with and obtain nutrition therapy services from Providers (defined below), which are subject to availability (including availability of third-party websites, content, materials, or other resources) and may include, without limitation:
Connecting you to patient portals to retrieve and download your health data and health insurance data.
Assisting with the entry of your health data, verifying your information and maintaining your patient account.
Providing access to patient education materials and nutrition information.
Providing a directory listing of dietitians and other licensed professionals who are registered with Berry Street and utilize our Services to deliver in-person care and/or telehealth services to their patients (“Providers”).
Providing price comparison and cost of care estimation tools for services offered by Providers and other clinical products or services.
Conducting patient intake assessments through questionnaires to facilitate nutrition therapy services provided by Providers, utilizing patient-provided responses.
Scheduling appointments with Providers.
Facilitating chat-based and video-based communication with Providers, providing audiovisual functionality for such communications, creating audio recordings of such communications and generating transcripts of such communications based on such recordings.
Assisting Providers maintaining and accessing your patient information, including through entry of the content of your communications with the Services or with such Providers.
Providing SMS, e-mail, in-app, and push notification alerts and other types of messages directly sent to you outside or inside the Services (our Privacy Policy provides information describing our data processing practices with respect to these alerts and messages).
Assisting with the generation of referrals to and from, and appointment requested by, Providers and other health care providers.
Collection and processing of payments in connection with services provided by Providers and other providers registered with Berry Street for clinical products and services rendered to or on behalf of patients.
Providing customer service.
Berry Street does not guarantee the availability of any feature, function, price, product, or service of the Services. We may from time to time add new features to the Services, substitute a new service for one of the existing Services, or discontinue or suspend one or any part of the existing Services. Under no circumstances will Berry Street be liable for any suspension or discontinuation of any of the Services or portion thereof, and any use of new features or services will be governed by these Terms.
Agreement to Terms. By using our Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not use the Services.
Privacy Policy. Please review our Privacy Policy, which also governs your use of the Services, for information on how we collect, use, and share your information.
Changes to these Terms or the Services. We may update the Terms from time to time in our sole discretion. If we do, we’ll let you know by posting the updated Terms on the Site or the App, or sending other communications. It’s important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms it means that you accept and agree to the changes. If you don’t agree to be bound by the changes, you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Who May Use the Services?
(a) Eligibility. You may use the Services through the Site or the App. You may download and install the App by downloading the App from an App Store.
(b) Creating an Account. Subject to Section 5(a), to use the Services on either the Site or the App, you’ll need to create an account and provide certain basic information about yourself (including your name, date of birth, address, medical insurance information, phone number, email, address, emergency contact and medical history). You agree that you won’t misrepresent your identity, use any other person’s image, likeness, or identity, or otherwise provide any deceptive or misleading profile information or images in connection with the creation and use of your account.
(c) Accuracy of Account Information. We may also require identification verification. It’s important that you provide us with accurate, complete, and current account information and keep this information up to date. If you don’t, we might have to suspend or terminate your account. Information that you provide to us to set up your account is governed by the terms of our Privacy Policy. You agree that you won’t disclose your account password to anyone and will use all reasonable means to secure your account password and associated login credentials. You agree to notify us immediately of any unauthorized use of your account, and you agree not to share your account with any other person or otherwise permit any other person to use your account, even on a temporary basis. You’re responsible for all activities that occur under your account, whether or not you know about them. We may take actions we deem reasonably necessary to prevent fraud and abuse, including placing restrictions on user accounts or on the amount of content that can be accessed from the Services at any one time.
Your Relationship with Berry Street
(a) Berry Street is a technology company that makes available the Site and App to help you manage your health information and communicate with and obtain nutrition therapy services from Providers. In connection with the Services, Berry Street provides certain technological and other administrative support for professional practices (“Practices”) that employ or contract with Providers.
(b) Berry Street acts solely as a technology platform to provide you with the Services, including connecting you with Practices and the Providers. Berry Street does not practice medicine, provide medical advice, render any medical judgment, or make any medical recommendation (as to any Provider or medical treatment). We do not control or interfere with the practice of medicine or other licensed professional services by Practices or any Providers, each of whom is solely responsible for the nutritional care, treatment, and advice he or she provides to you, whether or not provided through the Site or App. We have no control over, and cannot guarantee the availability of, any Provider at any particular time. We will not be liable for timeliness of chat response, cancelled or otherwise unfulfilled appointments, diagnosis or treatment provided, the quality of care, the cost of care, or any other injury or loss resulting or arising from, or related to, your use of the Services.
(c) By accepting these Terms, you acknowledge and agree that Berry Street is not a healthcare provider and that by using the Services, you are not entering into a doctor-patient or other healthcare provider-patient relationship with Berry Street. By connecting with a Provider through the Services, you may, however, be entering into a health care provider-patient relationship with a Practice or one or more Providers. Practices and Providers may require that you enter into a separate agreement between you and the Practice or Provider (as the case may be), which such agreement may be presented through the Services or accessible through the Services via links to third-party websites or other resources. Any terms, conditions and policies of the Practices and Providers are between you and the applicable Practice or Provider (as the case may be), and are additional to, and do not replace or supersede, these Terms.
(d) By accepting the Terms, you understand that Practices and Providers may send you messages, reports, emails and other electronic information and communications outside or inside the Services regarding your diagnosis or treatment. You consent to receiving messages, reports, emails and other electronic information and electronic communications from us. You further understand and agree that it is your responsibility to monitor and respond to these messages, reports, and emails and that Berry Street, the Practices, and the Providers are not responsible in any way for, and you will not hold Berry Street, any Practice, or any Provider liable for, any loss, injury, or claims of any kind resulting from your failure to read or respond to these messages, reports, and emails or for your failure to comply with any treatment information or instructions from the Practice or your Provider(s). Delivery of messages, reports, and emails is subject to effective transmission from network operators and appropriate selection of your notification settings; accordingly, you understand and agree that Berry Street is not liable for delayed or undelivered messages, reports, and emails.
(e) While you are not establishing a doctor-patient or other health care provider-patient relationship with Berry Street, by using the Services, you are establishing a direct customer relationship with Berry Street to use the products and services made available through the Services. As such, you may provide to us, or cause to be provided to us on your behalf, personal information, including health information, that is subject to use by us in accordance with our Privacy Policy.
Disclosures Regarding Content and Providers
(a) The content on the Services is provided for informational and educational purposes only, and may be generated through Berry Street’s or its third-party licensors’ algorithms (for example, price comparisons and cost of care estimates) or artificial intelligence (conversational and generative tools) used in connection with providing the Services (for example, automated responses to appointment requests or intake questionnaire responses, automated notes generation, automated post-encounter follow-ups etc.). Cost of care estimates and price comparisons provided by the Services may not be current or accurate, and actual costs may vary. Any content on the Services is not marketed, promoted, or otherwise intended to be used to diagnose any disease or other condition, or to cure, mitigate, treat, or prevent any disease. For example, the content on the App may include artificial intelligence-based suggestions, preventive information and searchable educational articles and videos on various health topics. Such content is not a replacement or substitute for medical care or specific professional advice, recommendation, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding your health. Never disregard professional medical advice or delay in seeking it because of information provided through the Services. Berry Street does not refer, recommend or endorse any particular Practice, Provider, test, procedure, treatment, opinion, or other information that may appear through the Services. RELIANCE ON ANY CONTENT PROVIDED THROUGH THE SERVICES BY BERRY STREET OR OTHER THIRD-PARTY CONTENT PROVIDERS IS AT YOUR OWN RISK AND MAY BE SUBJECT TO ADDITIONAL TERMS, CONDITIONS, AND POLICIES OF THE THIRD-PARTY CONTENT PROVIDER.
(b) You are expected to seek follow-up or emergency care as needed or recommended by a Provider, and you should continue to consult with your Provider and any other health care providers as needed or recommended. Additionally, unexpected events (including unavailability of third-party services incorporated in, used by, or accessible through the Services) may disrupt our electronic communication with you and we may not be able to contact you as quickly as we would like to due to uncontrollable circumstances. Moreover, please be aware that Providers tailor their response to your specific situation, taking into account the information you have shared, and their response may not be appropriate for other similarly situated patients.
(c) Berry Street or its designee takes certain limited steps at the time of their registration to verify that Providers that register with Berry Street hold licenses or certifications applicable to provide care to you through the Services, but Berry Street does not actively monitor the status of such licenses or certifications. Berry Street does not ensure that Providers (i) possess all valid, unexpired, unrevoked and unrestricted licenses, authorizations, and certifications as may be required to provide care (including telehealth services) to you; (ii) have and maintain appropriate and applicable insurance coverages; and (iii) do not appear on a sanctioned or excluded party list as prepared by the U.S. Health and Human Services Office of Inspector General (OIG), the U.S. General Services Administration (GSA), or comparable state agencies, or are otherwise not excluded, debarred, suspended or otherwise ineligible to participate in federal or state health care programs. Any information or advice received from a Provider comes from the Provider or Practice and Berry Street is not responsible for the quality and appropriateness of any care that the Provider or Practice renders to you through the Services. While Berry Street may facilitate your selection of and communications with the Provider, it is the Provider providing the professional services or clinical advice. You can report a complaint relating to any care services provided by a Provider by contacting the applicable professional licensing board in your state, or by contacting Berry Street directly. Any clinical records created as a result of your use of the Services may be maintained by Berry Street or its service providers on behalf of the Provider with whom you consult, for a period that is no less than the minimum number of years that such records are required to be maintained under applicable state and federal law.
(d) Berry Street can facilitate chat-based or video-based communications between you and Providers in order for you to receive telehealth services from, or coordinate in-person visits with, Providers. The information exchanged between Providers and you may be used by the Providers for diagnosis, therapy, treatment, follow-up care, consultation, education, and care management, and by yourself for self-management of your health care.
(e) There are potential risks associated with care (including telehealth services) provided by Providers through the Services:(i) Information available to the Providers may not be sufficient to make a correct diagnosis, recommendation or other professional decisions. Information that can be obtained only by in-person, physical examination or by being physically present with the patient may not be available. In some cases, the Provider may conclude that the information transmitted through the Services is not sufficient (e.g., poor resolution of images, delayed delivery of chat or other messages, incomplete health data, etc.) or that on some other basis the nature of your issue is such that it does not allow for the care to be provided appropriately by the Provider without an in-person evaluation.
(ii) Any technical failure or power outage could delay or disrupt communications and hinder, delay, or erase the ability to assist you. These limitations could result in incorrect assessment or diagnosis, which in turn could lead to care that is not helpful, or that could be harmful or cause other problems. Providers communicating with you through the Services are aware of these limitations and take them into account in making professional decisions within the scope of their practice as a licensed clinician, but the risk of error nevertheless exists.
(iii) The network and software security protocols we use could fail, and there could be a breach of privacy of your health information. Unfortunately, the transmission of information via the internet is not completely secure. We cannot guarantee the security of your personal information transmitted to, or through, our Services. Any transmission of personal information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures employed by the Services.
(iv) In some cases, applicable laws may prevent Providers from providing the care (including telehealth services) you desire through the Services. When that is the case, the Provider may refer you to an appropriate provider who can provide the care you desire.
You are under no obligation, of course, to connect with a Provider via the Services. You may obtain conventional, in-person care. Limited Use and Availability. Our Services may be subject to state or federal regulations and may change from time to time due to changes in applicable regulatory requirements. In some cases, the Services may not be the most appropriate way for you to manage your health and wellness, or provide information to, communicate with, or seek medical care and treatment from a healthcare provider. For example, certain medical conditions may require an in-person care or a healthcare provider other than your Provider, or your Provider may determine that your diagnosis or treatment requires an in-person office visit or is otherwise not appropriately addressed through use of the Services. In such a case, you may receive notification that you will be unable to use the Services for the particular issue you submitted and may be provided with additional information regarding next steps.
Transactions and Payments
(a) General. The Services may collect and process payments on behalf of third-party service providers, including Providers and other providers of clinical products and services, allow you to make purchases for certain products and services provided by these Providers and other third-party service providers as well as appointments to obtain such services (including when you fail to appear at such appointments), and facilitate certain payment transactions for you in connection with such purchases (each, a “Provider-Related Transaction”). The Services may also collect and process payments on behalf of Berry Street, allow you to make purchases for certain products and services provided by Berry Street that are not the subject of Provider-Related Transactions, and facilitate certain payment transactions for you in connection with such purchases (each, a “Berry Street-Related Transaction”; and together with Provider-Related Transactions, “Transactions”). You expressly authorize us (or our third-party payment processor) to charge you for each of your Provider-Related Transactions on behalf of the Provider or other third-party service provider and for each of your Berry Street-Related Transactions on behalf of Berry Street. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, you agree to the pricing, payment, and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for Transactions are non-refundable and non-transferable. All fees and applicable taxes, if any, are payable in United States dollars.
(b) Cancelling a Transaction. UNLESS SPECIFIED OTHERWISE IN THE CANCELLATION POLICY PRESENTED THROUGH THE SERVICES AT THE TIME OF YOUR TRANSACTION, YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE TRANSACTION OR RECEIVE A REFUND FOR YOUR TRANSACTION AT ANY TIME. But if something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction, we’ll refund any payment you have already remitted to us for such Transaction.
(c) Financial Responsibility. Berry Street is an in-network provider for many medical insurance plans. We will check your medical insurance coverage before your first visit with a Provider and bill your medical insurance company on your behalf, but you are ultimately responsible for verification of your medical insurance coverage and payment of fees and charges owed to Practice or Provider. You can verify your coverage by reaching out to us via text (1-888-532-2115) or email (support@berrystreet.co). You authorize us to conduct such verifications and to bill your medical insurance plans for the services and products offered or facilitated by our Services. You agree to pay any deductible, co-payment, or co-insurance as determined by your medical insurance plan. Such payments will be due at the time of service. You understand that you are responsible to pay our fees in full. All appointments with Providers are considered “fee for service.” Appointment fees are due at the time of service. We accept check, Venmo/PayPal, or credit card. Many medical insurance companies have additional requirements that may affect your coverage. You are responsible for any amounts not covered or payable by your medical insurance company, including when you fail to appear at an appointment. If your medical insurance company denies any part of your claim, you agree to be responsible to pay the full balance. All outstanding balances will be automatically charged after thirty (30) days unless a mutually agreed upon payment plan has been established with us. If your medical insurance plan doesn’t cover our Services, you may have “out-of-network” benefits that could cover a portion of your fees and charges. Upon request, we will provide you with a superbill which you can submit to your medical insurance company directly for reimbursement. Contact your medical insurance company directly to determine if your medical insurance company will reimburse you for the cost of appointments with Providers.
Feedback. We appreciate feedback, comments, testimonials, ideas, proposals and suggestions for improvements to the Services (“Feedback”). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you. Berry Street will not publish your name or other identifying information in connection with any testimonial unless you have given us your prior approval. Berry Street may republish any publicly available review, comment, or testimonial about Berry Street or the Services on the Site or in other media.
Your Content.
(a) User Content. Our Services may allow you to submit, store, or share information, data, or content such as text (in communications with Providers or others), files, assessments, self-report measures, lab samples, laboratory and imaging reports and results, prescriptions and pharmaceutical documents, medical records and other health data (including any retrieved from any third-party websites or other resources accessible through the Services), documents, graphics, images, audio and video. Anything (other than Feedback) that you submit to or otherwise make available through the Services is referred to as “User Content.” Berry Street does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to your User Content.
(b) Permissions to Your User Content. By making any User Content available through the Services, you hereby grant to Berry Street a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your User Content in connection with operating, improving and providing the Services and in advertisements, marketing and other materials published and distributed in connection with the Services or Berry Street, subject to applicable privacy laws and in accordance with our Privacy Policy. The foregoing license includes the right to use User Content with training algorithms, machine learning, and artificial intelligence (conversational and generative tools) used in connection with the Services.
(c) Your Responsibility for User Content. You are solely responsible for all your User Content. You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your User Content under these Terms. You represent and warrant that your User Content is accurate and current and that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Berry Street on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
(d) Removal of User Content. You can remove your User Content by submitting an email request to Berry Street at support@berrystreet.co. You should know that in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. Even upon termination of your account, Berry Street may retain your medical records subject to applicable laws, which may not be removed from the Berry Street system/platform. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
(e) Berry Street's Intellectual Property. We may make available through the Services content that is subject to intellectual property rights. We retain all rights to that content.
Rights and Terms for the App.
(a) App License. If you comply with these Terms, Berry Street grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install the App on your personal computers, mobile handsets, tablets, wearable devices, and other devices and to run the App solely for your own personal non-commercial purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App (unless applicable law permits, despite this limitation); or (iv) make the functionality of the App available to other users through any means.
(b) App Stores. This Section applies to the App that you acquire from third-party application stores (e.g., the Apple App Store, Google Play App Store, or other third-party platform from which you download and install the App) (each, together with its provider, an “App Store”). The App Store has no obligation to furnish any maintenance and support with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify the App Store, and the App Store will refund the App purchase price to you (if applicable) and, to the maximum extent permitted by applicable law, the App Store will have no other warranty obligation whatsoever with respect to the App. The App Store is not responsible for addressing any claims by you or any third party relating to the App or your possession and use of it, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. The App Store is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that your possession and use of the App infringe that third party’s intellectual property rights. The App Store and its subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, the App Store will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. You represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You must also comply with any applicable third-party terms of service when using the App.
Service Text Messages. If you provide your cellular phone number to Berry Street (either online or via text message), you specifically authorize Berry Street to send push notifications, SMS or MMS text messages to your phone for purposes of receiving one-time passwords, alerts, notifications, and other messages related to the Services. Our Privacy Policy provides information describing our data processing practices with respect to these alerts and messages. Message and data rates from your mobile telephone service provider may apply and are subject to the terms and conditions imposed by your provider. You can opt out of receiving push notifications, SMS, or MMS text messages at any time by adjusting your notification settings in your account or otherwise following the given instructions for doing so. Note that your use of the Services is subject to you providing a valid cellular phone number for purposes of receiving SMS or MMS text messages, and opting out of receiving all texts will impact your use of the Services.
If you change or deactivate the phone number you provided to Berry Street, you have an affirmative obligation to update your account information and the phone number(s) attached to your account to prevent us from inadvertently communicating with anyone who acquires any phone number(s) previously attributed to you, and any new phone number(s) you attach to your account may receive Berry Street’s standard SMS messages unless you also unsubscribe via the above procedures.
General Prohibitions and Berry Street's Enforcement Rights. You agree not to do any of the following:
(a) Post, upload, publish, submit, or transmit any User Content that: (i) constitutes health data or health insurance data of any individual other than yourself or infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
(b) Use, display, mirror or frame the Services or any individual element within the Services, the Berry Street name or any other name used by Berry Street, any Berry Street trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Berry Street’s express written consent;
(c) Access, tamper with, or use non-public areas of the Services, Berry Street’s computer systems, or the technical delivery systems of Berry Street’s providers;
(d) Attempt to probe, scan, or test the vulnerability of any Berry Street system or network or breach any security or authentication measures;
(e) Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Berry Street or any of Berry Street’s providers or any other third party (including another user) to protect the Services;
(f) Attempt to access or search the Services or download content from the Services using any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, data mining tools, or the like) other than the software and search agents provided by Berry Street or other generally available third-party web browsers;
(g) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
(h) Use any meta tags or other hidden text or metadata utilizing a Berry Street trademark, logo URL or product name without Berry Street’s express written consent;
(i) Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
(j) Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive, or false source-identifying information;
(k) Attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Services;
(l) Interfere with, or attempt to interfere with, the access of any user, host, or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
(m) Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
(n) Impersonate or misrepresent your affiliation with any person or entity;
(o) Stalk or harass any Berry Street personnel or Provider either through or outside your use of the Services;
(p) Report false or fictitious emergencies, whether relating to yourself or others;
(q) Violate any applicable law or regulation; or
(r) Encourage or enable any other individual to do any of the foregoing.
Berry Street is not obligated to monitor access to or use of the Services or to review or edit any content. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any content, including User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Third-Party Services.
(a) The Services may allow you to access third-party websites, content, materials, or other resources (including those made available by Practices and Providers). We provide access only as a convenience and are not responsible for the content, products or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party resources. We may incorporate third party software or materials as part of certain of the Services, including without limitation open source third party software. Your use of such third-party software or materials is subject to any and all applicable additional terms and conditions governing such use provided by the third-party. Where applicable, additional notices relating to the third-party may be provided by us, which for example may contain attribution and disclaimer notices applicable to the third-party software or content.
(b) You acknowledge and agree that Berry Street incorporates, connects to, or integrates with certain services provided by its third-party providers and licensors (“3P Providers”, and such services provided by them, as incorporated in, connected to, or integrated with the Services, the “3P Services”). For clarity, the Providers as defined in Section 1 of these Terms are 3P Providers. You agree that the provisions set forth in Section 6, Section 7, and Section 17 apply with respect to the 3P Providers and the 3P Services. Further, you agree that you, and not Berry Street, are solely responsible for maintaining the 3P Services and obtaining any associated licenses and consents necessary for you to utilize the 3P Services in connection with the Services, if applicable. Each 3P Provider owns all right and title in and to the intellectual property comprising its 3P Services. You will not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any information, software, products, or services obtained from or through the 3P Services. Berry Street does not warrant, endorse, guarantee, or assume responsibility for any 3P Service, and Berry Street will not be a party to or in any way responsible for monitoring any activities between you and the providers and operators of the 3P Services. By using the Services, you expressly release and hold Berry Street harmless from any and all liability arising from your use of any 3P Services, including any loss or damage incurred as a result of any dealings between you and any third parties, or as the result of the presence of such 3P Services on the Site or App or the failure of such 3P Services to function and provide services as intended. It is your responsibility to evaluate the content and usefulness of the information obtained from third parties, and you are solely responsible for all of your activities with other persons with whom you communicate or interact as a result of your use of the Services.
Termination. We may suspend or terminate your access to and use of the Services, including suspending access to or terminating your account, at our sole discretion, at any time and without notice to you. You may cancel your account at any time by emailing support@berrystreet.co to request account cancellation, whereupon Berry Street will remove your access to the Services, and Berry Street will cease proactively contacting you. However, even upon termination of your account, Berry Street may retain your medical records subject to applicable laws, which may not be removed from the Berry Street system/platform. Upon any termination, discontinuation or cancellation of the Services or your account, the following Sections will survive: 6, 7, 8, 10, 11, and 14 through 22.
Warranty Disclaimers. THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, relevance, accuracy, timeliness, truthfulness, completeness or reliability of any information or content on the Services. General advice and other content relayed through the Services is provided for informational and educational purposes only and is not intended to replace or substitute any medical care or specific professional advice, diagnosis or treatment. Berry Street makes no representations or warranties regarding, and will have no responsibility for, diagnosis or treatment provided, the quality of care, the cost of care, or any other injury or loss resulting or arising from, or related to, your use of the Services.
Indemnity. You will indemnify and hold Berry Street and its officers, directors, employees, contractors, service providers, licensors, and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your access to or use of the Services, (b) your User Content, or (c) your violation of these Terms.
Limitation of Liability.
(A) TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER BERRY STREET NOR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES, WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, PROFESSIONAL MALPRACTICE OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BERRY STREET OR ITS SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(B) TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL BERRY STREET’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO BERRY STREET FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO BERRY STREET, AS APPLICABLE.
(C) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BERRY STREET AND YOU.
Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of New York, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 21 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Berry Street are not required to arbitrate will be the state and federal courts located in New York County, New York, and you and Berry Street each waive any objection to jurisdiction and venue in such courts.
Dispute Resolution.
(a) Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to the use of the Services, these Terms or the breach, termination, enforcement, interpretation, or validity thereof (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Berry Street agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Berry Street are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
(b) Exceptions. As limited exceptions to Section 21(a) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
(c) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability, and scope of this arbitration agreement.
(d) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration, we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration, you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
(e) Injunctive and Declaratory Relief. Except as provided in Section 21(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
(f) Class Action Waiver. YOU AND BERRY STREET AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
(g) Severability. With the exception of any of the provisions in Section 21(f) of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
General Terms.
(a) Reservation of Rights. Berry Street and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
(b) Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Berry Street and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between Berry Street and you regarding the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible, and the other provisions of these Terms will remain in full force and effect. Except where provided by applicable law in your jurisdiction, you may not assign or transfer these Terms, by operation of law or otherwise, without Berry Street’s prior written consent. Any attempt by you to assign or transfer these Terms absent our consent or your statutory right, without such consent, will be null. Berry Street may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
(c) Notices. Any notices or other communications provided by Berry Street under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
(d) Waiver of Rights. Berry Street’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Berry Street. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
(e) Limitation of Claims. No action arising under or in connection with these Terms, regardless of the form, may be brought by you more than one (1) year after the cause of action arose; actions brought thereafter are forever barred.
(f) Severability. If any provision of these Terms is held invalid, illegal, or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the parties, and the remaining provisions of these Terms will remain in full force and effect.
Contact Information. If you have any questions about these Terms or the Services, please contact Berry Street at support@berrystreet.co.