Last Updated: April 13, 2022
Welcome to Niivana! These Terms of Service (“Terms of Service”) govern your use of the online interfaces and properties (e.g., websites and mobile applications) owned and controlled by Niivana, LLC (“Niivana”, “we,” “us,” and “our”), including the www.niivana.com website (the “Site”) and the Niivana mobile application (the “App”, together with the Site, referred to herein as the “Platform”), as well as the telehealth services (“Services”) available to users through the Platform. The terms “you” and “your” means you, your dependent(s) if any, and any other person accessing your Niivana Account. For purposes of these Terms of Service, the term “User” includes anyone who may be a paid subscriber to the Site and Services, as well as any non-subscribing users of the Platform and Services. If you are a telehealth services provider on the Platform (a “Provider”) the terms of your separate agreement with Niivana shall apply to your use of the Platform and your provision of Services to Users in lieu of these Terms of Service.
Your acceptance of, and compliance with, these Terms of Service is a condition to your use of the Platform and Services. By clicking the box for "I have carefully read and Agree and Consent to the Niivana LLC Terms of Service & Consent to Telehealth" on the Niivana app payment page, you acknowledge that you have read, understand, and accept all terms and conditions contained within these Terms of Service as well as our Consent to Telehealth, Privacy Policy, and HIPAA Privacy Policy. If you do not agree to be bound by these terms, you are not authorized to access or use the Platform or Services, must cease all use of the Platform and the Services, and must leave this Site.
By using the Platform and Services, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
Please direct any questions you may have about these Terms of Service, the Platform or the Services to any one of the following:
The foregoing contact information may change from time-to-time by supplementation, amendment, or modification of these Terms of Service.
We may supplement, amend, or otherwise modify these Terms of Service at any time without notice to you. If we make any changes the revised Terms of Service will posted on this or a similar page of the Site and the App and the “Last Updated” date at the top of these Terms of Service will be revised and, in some cases, where appropriate we may notify you by adding a statement to the login screen or sending you an email notification. All changes shall be deemed effective as of the stated “Last Updated” date. We encourage you to review our Terms of Service whenever you use the Platform or our Services to stay informed. It is your responsibility to carefully review these Terms of Service each time you visit, access or use the Platform or our Services. Using our Platform or continuing to receive Services after a notice of changes has been sent to you or after the revised Terms of Service have been published on our Platform or otherwise provided to you shall constitute consent to the changed terms and practices. If you disagree with any changes to these Terms of Service, you will need to stop using the Platform and Services and must deactivate your account(s).
These Terms of Service provide that all disputes between you and Niivana that in any way relate to these Terms of Service or your use of the Site will be resolved by BINDING ARBITRATION. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) to assert or defend your rights under these Terms of Service. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Section below entitled Dispute Resolution; Arbitration Agreement for the details regarding your agreement to arbitrate any disputes with Niivana.
You agree that information provided by you in connection with the Services and Platform shall be governed by the Privacy Policy and HIPAA Privacy Policy which are hereby incorporated and made a part of this Agreement. You further agree that you are providing your informed consent to use of the Services pursuant to the Consent to Telehealth which is hereby incorporated and made a part of this Agreement.
BY AGREEING TO THIS AGREEMENT AND/OR BY USING THE PLATFORM, YOU ARE ALSO AGREEING TO THE TERMS OF THE PRIVACY POLICY AND THE HIPPA PRIVACY POLICY AND THE INFORMED CONSENT.
Niivana does not provide medical advice or care. We are a technology platform that connects Providers with Users to facilitate provision of non-emergency telehealth services. Niivana does not control or interfere with the provision of Services by Providers, and the Providers, not Niivana, are solely responsible for the quality and appropriateness of the care they render to Users. By accepting these Terms of Service and by using the Platform or receiving Services, you are entering into a health care provider-patient relationship solely with one or more Provider(s) and not with Niivana. While Niivana facilitates your selection of, and communications with, Providers, Niivana does not provide medical services, and the practioner-patient relationship is between you and the Provider. The Providers are independent of Niivana and are merely using the Platform as a way to communicate with you. Any information or advice received from a Provider comes from them alone, and not from Niivana. Your interactions with the Providers via the Platform are not intended to take the place of your relationship with your regular health care practitioners or primary care physician. Neither Niivana, nor any of its subsidiaries or affiliates or any third party who may promote the Platform or Services or provide a link to the Platform, shall be liable for any professional advice obtained from a Provider via the Platform or Services, nor any information obtained on the Platform. Niivana does not recommend or endorse any specific Providers, tests, medications, products, or procedures. Niivana does not make any representations or warranties about the training or skill of any Providers who deliver services via the Platform or Service. You will be provided with an available Provider based solely on the information you submit to the Platform. You are ultimately responsible for deciding to accept or decline the services of your particular Provider or to accept or decline to receive telehealth services generally. If you feel the Services provided by you Provider do not fit your needs or expectations, you may change to a different Provider who provides services through the Platform. If a Provider you have been connected with stops using the Platform at any time after you have been connected, we will send an email to notify you that your Provider is no longer on the Platform and that you have the opportunity to match with a new Provider. You acknowledge that your reliance on any Providers or information or Services delivered by the Providers via the Platform is solely at your own risk and you assume full responsibility for all risks associated herewith.
All information, files, documents, applications, software, text, audio, videos, photos, images, illustrations, graphics, visuals and other content and materials made available through or forming a part of the Platform or otherwise provided by Niivana (collectively “Content”) is for general informational purposes only and does not constitute professional medical advice, diagnosis, treatment, or recommendations of any kind by Niivana, and is in no way intended to create a provider-patient relationship as defined by state or federal law. None of the Content should be considered medical advice or an endorsement, representation or warranty that any particular medication or treatment is safe, appropriate, or effective for you. You should always seek the advice of your qualified health care professionals with any questions or concerns you may have regarding your individual needs and any medical conditions.
The Services you receive from Providers through the Platform should not be used as a replacement for a primary care provider relationship. The Services you receive from Providers through the Platform may not necessarily give rise to a provider-patient relationship or an ongoing treatment relationship. You should continue to consult with your primary provider and other healthcare professionals as recommended. Always seek the advice of a physician or other qualified healthcare provider concerning questions you have regarding a medical condition and before stopping, starting, or modifying any treatment or modification. You are expected to seek follow-up or emergency care when recommended by a Provider 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 Providers who provide Services through the Platform 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 but are not required to.
THE PLATFORM IS NOT INTENDED FOR THE PROVISION OF CLINICAL DIAGNOSIS REQUIRING AN IN-PERSON EVALUATION AND YOU SHOULD NOT USE IT IF YOU NEED ANY OFFICIAL DOCUMENTATION OR APPROVALS FOR PURPOSES SUCH AS, BUT NOT LIMITED TO, COURT-ORDERED COUNSELING OR EMOTIONAL SERVICE DOG CERTIFICATION. IT IS ALSO NOT INTENDED FOR ANY INFORMATION REGARDING WHICH DRUGS OR MEDICAL TREATMENT MAY BE APPROPRIATE FOR YOU, AND YOU SHOULD DISREGARD ANY SUCH ADVICE IF DELIVERED THROUGH THE PLATFORM OR BY A PROVIDER.
DO NOT DISREGARD, AVOID, OR DELAY IN OBTAINING IN-PERSON CARE FROM YOUR DOCTOR OR OTHER QUALIFIED PROFESSIONAL BECAUSE OF INFORMATION OR ADVICE YOU RECEIVED THROUGH THE PLATFORM.
IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, YOU SHOULD DIAL “911” IMMEDIATELY.
IF YOU ARE THINKING ABOUT SUICIDE OR IF YOU ARE CONSIDERING HARMING YOURSELF OR OTHERS OR IF YOU FEEL THAT ANY OTHER PERSON MAY BE IN ANY DANGER OR IF YOU HAVE ANY MEDICAL EMERGENCY, YOU SHOULD DIAL “911” IMMEDIATELY. SEEK IMMEDIATE IN PERSON ASSISTANCE. THE PLATFORM IS NOT DESIGNED FOR USE IN ANY OF THE AFOREMENTIONED CASES AND THE PROVIDERS CANNOT PROVIDE THE ASSISTANCE REQUIRED IN ANY OF THE AFOREMENTIONED CASES.
YOU MAY ALSO CALL THE NATIONAL SUICIDE PREVENTION LIFELINE AT 800 273 8255.
Niivana’s Platform and Services are not for medical emergencies or urgent situations. You should not disregard or delay to seek medical advice based on anything that appears or does not appear on the Site. If you believe you have an emergency, call 9-1-1 immediately. You should seek emergency help or follow up care when recommended by a Provider or when otherwise needed.
While our Platform and the Services provided through the Platform are intended to provide benefits such as convenient access to Health Care Professionals and the Services they provide, there do exist potential risks associated with the use of the Platform and the Services, which are outlined in our Informed Consent to Treatment (the “Consent”).
Neither Niivana nor its Providers endorse any specific medication, pharmacy, or pharmacologic product and Providers will not prescribe any medications to you.
Neither Niivana nor Niivana Medical Group are insurers. The Services are not insurance products, and the amounts you pay to Niivana or Niivana Medical Group are not insurance premiums. If you desire any type of health or other insurance, you will need to purchase such insurance separately.
Niivana operates subject to state and federal regulations, and the Services may not be available in your state. You represent that you are not a person barred from enrolling for and/or receiving the Services under the laws of the United States or other applicable jurisdictions in which you may be located. Access to and use of the Platform and/or the Services is limited exclusively to Users located in States within the United States where the Services are available. Services are not available to Users located outside the United States. Accessing the Platform or Services from jurisdictions where content is illegal, or where we do not offer Services, is prohibited. All of our Services are subject to availability, and we reserve the right to discontinue offering some or all of the Services without prior notice. You hereby certify that if you are receiving Services through the Platform you shall provide an accurate identification for your physical location at the time you are receiving such Services. Our Providers rely upon this certification in order to provide safe Services to you, and your ability to access the Services is fully conditioned upon your truthfulness of this certification. Should the certification of your location be inaccurate or untruthful, you agree to indemnify, and hold harmless Niivana and its affiliates and their respective directors, officers, employees, managers, members, consultants, contractors, advisors and agents, including without limitation the Providers, from and against any and all claims, demands, suits, causes of action, proceedings, losses, liabilities, damages, settlements, fees, costs, expenses and all other liabilities (including without limitation reasonable attorneys’ fees, expert witness fees and court costs) of any kind whatsoever arising directly or indirectly out of or in connection with your breach of the foregoing certification.
The Platform depends on various factors such as software, hardware and tools, either our own or those owned and/or operated by our contractors and suppliers. While we make commercially reasonable efforts to ensure the Platform’s reliability and accessibility, you understand and agree that no platform can be 100% reliable and accessible and so we cannot guarantee that access to the Platform will be uninterrupted or that it will be accessible, consistent, timely or error-free at all times.
We use Zoom as our third party videoconferencing provider and the video conferencing features of the Platform re provided by Zoom and Zoom’s terms of service at https://explore.zoom.us/en/terms/ will apply to your use of the videoconferencing features of the Platform. If you do not agree to Zoom’s terms of service, do not use the videoconferencing features of the Platform. Reference is made to the Zoom terms of service for informational purposes only and are in no way incorporated into or made a part of these Terms of Service. Niivana’s relationship with Zoom, if any, is merely contractual in nature, as Zoom nothing more than a third-party vendor to Niivana, and is in no way subject to Niivana’s direction or control; thus, their relationship is not, and should not be construed as, one of fiduciaries, franchisors-franchisees, agents-principals, employers-employees, partners, joint venturers or the like.
Niivana reserves complete and sole discretion with respect to the operation of the Platform and the Services. We may withdraw, suspend, or discontinue any functionality or feature of the Platform or the Services among other things. We reserve the right, in our sole discretion, to deny or suspend use of the Site and the Services to anyone for any reason. We are not responsible for transmission errors, corruption, or compromise of information carried over local or interchange telecommunications carrier. We are not responsible for maintaining information arising from use of the Platform or with respect to the Services. We reserve the right to maintain, delete, or destroy all communications or information posted or uploaded to the Platform or the Services in accordance with our internal record retention and/or destruction policies. Niivana may delete any information provided by you that it deems in its sole discretion fraudulent, abusive, defamatory, obscene, or in violation of copyright, trademark, or other intellectual property or ownership right of any other person or entity. We will have no liability whatsoever on account of any change to the Platform or any suspension or termination of your access to or use of the Platform or Services or the deletion or removal of any Content or information.
You agree to refrain from abusive language and behavior which could be regarded as inappropriate, or conduct that is unlawful or illegal, when communicating with Providers or other Niivana agents through the Platform, and you agree to refrain from contacting Providers for health care services outside of the Platform and the Services. We are not responsible for any interactions with Providers that are not conducted through the Platform or the Services.
4.1 Generally. When you create an account on the Platform, you are able to purchase Services on the Platform through your account. You agree to pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. We accept credit and debit cards issued by U.S. banks. If a credit card account is being used for a transaction, Niivana may obtain preapproval for an amount up to the amount of the payment. If you enroll to make recurring payments automatically, all charges and fees will be billed to the credit card you designate during the setup process. If you want to designate a different credit card or if there is a change in your credit card, you must change your information online. This may temporarily delay your ability to make online payments while we verify your new payment information. We ask that you keep your billing information current and complete and update any information within 72 hours of a change. Please notify us should your payment method be canceled or suspended for any reason.
4.2 Credit Card Processing; Out-of-Network Healthcare Reimbursement. By providing your credit card information (or other payment method that we accept) and receiving Services or subscribing to our Platform, you (i) authorize Niivana (or its third party payment processor) to charge your credit card (or other payment method) for any and all unpaid amounts (including any taxes) that are your responsibility, and (ii) agree to pay all amounts charged pursuant to this consent and authorization in accordance with the issuing bank cardholder agreement. If the payment method cannot be verified, is invalid or is otherwise not acceptable, your transaction may be suspended or cancelled. You must resolve any payment method problems before we proceed with your transaction. If you want to change or update your payment method information, you can do so at any time by logging into your account.
You represent and warrant that if you are making online payments that (i) any credit card, debit card and bank account information you supply is true, correct and complete, (ii) charges incurred by you will be honored by your credit/debit card company or bank, (iii) you will pay the charges incurred by you in the amounts posted, including any applicable taxes, and (iv) you are the person in whose name the card was issued and you are authorized to make a purchase or other transaction with the relevant credit card and credit card information.
You acknowledge that the amount billed may vary due to promotional offers, preferences you select, or changes in applicable taxes or other charges, and you authorize us (or our third party-payment processor) to charge your payment method for the corresponding amount.
Stripe is currently our third-party service provider for payment services. Stripe processes your payments and by using our Platform and/or Services you agree to be bound by Stripe’s terms of service available at https://stripe.com/us/legal. If you do not agree to Stripe’s terms of service, do not use the payment processing features of the Platform. Reference is made to the Stripe terms of service for informational purposes only and are in no way incorporated into or made a part of these Terms of Service. Niivana’s relationship with Stripe, if any, is merely contractual in nature, as Stripe nothing more than a third-party vendor to Stripe, and is in no way subject to Niivana’ direction or control; thus, their relationship is not, and should not be construed as, one of fiduciaries, franchisors-franchisees, agents-principals, employers-employees, partners, joint venturers or the like.
By providing your healthcare insurance information and requesting reimbursement through our integration with Reimbursify, you authorize Niivana and Reimbursify to seek reimbursement from your healthcare provider. If your healthcare provider denies your claim or otherwise fails to reimburse you for the Services, you remain responsible for the amounts payable to Niivana for the Services. If you desire to change or update your health insurance provider information, you can do so at any time by logging into your account.
You represent and warrant that by providing your healthcare provider information and the credit card, debit card and bank account information where reimbursement will be credited, (i) any healthcare provider information and any credit card, debit card and bank account information you supply is true, correct and complete, and (ii) you are authorized to seek reimbursement.
Reimbursify is currently our third-party service provider for out-of-network healthcare reimbursement. By using our Platform and/or Services you agree to be bound by Reimbursify’s Services Terms available at https://reimbursify.com/. If you do not agree to Reimbursify’s terms of service, do not use the healthcare reimbursement functionality of the Platform. Reference is made to the Reimbursify terms of service for informational purposes only and are in no way incorporated into or made a part of these Terms of Service. Niivana’s relationship with Reimbursify, if any, is merely contractual in nature, as Reimbursify nothing more than a third-party vendor to Niivana, and is in no way subject to Niivana’s direction or control; thus, their relationship is not, and should not be construed as, one of fiduciaries, franchisors-franchisees, agents-principals, employers-employees, partners, joint venturers or the like.
4.3 Subscriptions. When you register for a subscription (“Subscription”), you expressly acknowledge and agree that (a) Niivana (or our third-party payment processor) is authorized to charge you on an annual or monthly basis, as applicable, for your Subscription (in addition to any applicable taxes and other charges) for as long as your Subscription continues, and (b) your Subscription is continuous until you cancel it or we suspend or stop providing access to the Platform in accordance with these Terms of Service. You may cancel your Subscription at any time by going to your Account settings section in the App and cancellation will be effective at the start of your next billing period. We do not offer refunds for Subscriptions which are cancelled during a Subscription term.
IF YOU HAVE SELECTED TO PAY FOR A SUBSCRIPTION OR SERVICE ON AN ANNUAL OR MONTHLY BASIS, UNLESS YOU NOTIFY US IN WRITING BY EMAILING US AT SUPPORT@NIIVANA.COM BEFORE A CHARGE THAT YOU WANT TO CANCEL THE SUBSCRIPTION OR SERVICE OR THAT DO NOT WANT THE SUBSCRIPTION OR SERVICE TO AUTOMATICALLY RENEW, YOU UNDERSTAND AND AGREE THAT YOUR SUBSCRIPTION OR SERVICE WILL AUTOMATICALLY RENEW ON A CONTINUOUS BASIS FOR SUBSEQUENT ANNUAL OR MONTHLY PERIODS FOR THE SAME DURATIO AS YOUR ORIGINAL PURCHASE AND YOU AUTHORIZE US (WITHOUT NOTICE TO YOU, UNLESS REQUIRED BY APPLICABLE LAW) TO CHARGE YOU THE ANNUAL OR MONTHLY FEE, AT THE FEES SET FORTH IN YOUR ACCOUNT OR MADE AVAILABLE TO YOU ONLINE, AS APPLICABLE, AND ANY TAXES, USING ANY ELIGIBLE PAYMENT METHOD WE HAVE ON RECORD FOR YOU.
4.4 Free Trials. From time to time, to the extent legally permitted, we may offer free or discounted trials of certain Subscriptions for specified periods of time without payment. If we offer you a free or discounted trial, the specific terms of your trial will be provided in the marketing materials describing the particular trial or at registration. Free and discounted trials are limited to one (1) per person.
Once your free or discounted trial ends, we (or our third-party payment processor) will begin billing your designated payment method on a recurring basis for your Subscription (plus any applicable taxes and other charges) for as long as your Subscription continues, unless you cancel your Subscription prior to the end of your free or discounted trial. Instructions for canceling your Subscription are described above. You will receive a notice from us 30 days prior to the new billing term. We reserve the right to modify or terminate free and discounted trials at any time, without notice and in our sole discretion.
4.5 Amount Billed; Nonpayment. You acknowledge that the amount billed may vary due to promotional offers, preferences you select, or changes in applicable taxes or other charges, and you authorize us (or our third party-payment processor) to charge your payment method for the corresponding amount. If we do not receive payment in full for any reason you agree to pay all amounts due on your account when requested within ten days plus interest at a rate equal to 1.5% per month or the maximum rate permitted by applicable law, whichever is less.
4.6 Prices. All prices on our Platform are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. We reserve the right to add new services for additional fees and charges and to add or amend fees and charges for existing services as we may determine in our sole discretion, at any time and without notice, including without limitation, as based on geographic or other criteria as we may establish from time to time. We will not, however, be able to notify you of changes in any applicable taxes. You understand and agree that for any Services provided on an appointment basis, you may be responsible for a missed appointment fee according to the current fee schedule if you do not cancel a scheduled appointment at least twenty-four (24) hours in advance of the scheduled appointment time.
In the event a Service is listed at an incorrect price due to typographical error or error in pricing information received from a third party, we shall have the right to refuse or cancel any orders placed for the Service(s) listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit or debit card charged. If your credit or debit card has already been charged for the purchase and your order is canceled, we will promptly issue a credit to your credit or debit card account in the amount of the charge.
4.7 Security Breach. Should you become aware of a potential breach of security for your account, such as unauthorized disclosure or use of your User name and/or password, please change your password to your account immediately through your account settings. Unless you immediately notify Niivana of any such concern, you agree that we may continue billing your account for any use of the Service under your account.
4.8 No Guarantee of Insurance Reimbursement. Niivana offers no guarantee that you shall receive any such reimbursement from your insurance provider for the Services provided by Providers.
In order to access the Platform and the Services, you represent and warrant that you are older than 18 years old. You agree to fully, accurately, and truthfully create your Niivana Account (“Account”), including but not limited to your name, mailing address, phone number, email address, and password, which become your Niivana ID and credentials. You also agree to continually update such information as needed, in order to maintain its accuracy. You may not share or transfer your User Account, or create more than one User Account. You may terminate your Account at any time by contacting customer service at support@niivana.com. If you terminate your Account, you remain obligated to pay all outstanding fees, if any, relating to your use of the Platform and Services incurred prior to termination. You will not be entitled to any refund on cancellation of your account or in the event we suspend or terminate your account or the Platform or Services.
The Niivana ID and/or credentials are personal to you, and you are solely responsible for maintaining the confidentiality of your Niivana ID and/or credentials, and for all activities that occur under such Niivana ID and/or credentials. You agree to prohibit anyone else from using your Niivana ID and/or credentials and agree to immediately notify Niivana of any actual or suspected unauthorized use of your Niivana ID and/or credentials or other security concerns of which you become aware. Your access to the Site may be revoked by Niivana at any time with or without cause. You further acknowledge and agree that we will hold you liable and responsible for any damage or loss incurred as a result of the use of your Account by any person whether authorized by you or not, and you agree to indemnify us for any such damage or loss. You agree and confirm that your use of the Platform, including the Services, are for your own personal use only and that you are not using the Platform or the Services for or behalf of any other person or organization. We strongly recommend that you do not use the Platform or the Services on public or shared computers. We also recommend that you do not store your account credentials through your web browser or other software.
You are responsible for providing and maintaining, at your own risk, option and expense, appropriate telecommunications, software, hardware and other capabilities (consistent with any technical, quality or other requirements described in the Platform) to enable use of the Platform and Services. Niivana reserves the right to change the access configuration, including any software, hardware or other requirements of the Platform, at any time without prior notice. If you receive any file from us or from a Provider, whether through the Platform or not, you agree to check and scan this file for any virus or malicious software prior to opening or using this file.
You are prohibited from violating or attempting to violate the security of the Platform, including, without limitation, (a) accessing data not intended for such User or logging onto a server or an account which the User is not authorized to access; or (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) accessing or using the Platform or any portion thereof without authorization, in violation of these Terms of Service or in violation of applicable law. You may not use any scraper, crawler, spider, robot, or other automated means of any kind to access or copy data on the Platform, deep-link to any feature or content on the Platform, bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Platform. Violations of system or network security may result in civil or criminal liability. Niivana will 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. You agree not to use any device, software, or routine to interfere or attempt to interfere with the proper working of the Platform or any activity being conducted on the Platform.
When you use the Platform, or send emails, messages, and other communications from your desktop or mobile device to us, you are communicating with us and the Providers electronically and you consent to receive communications from us and the Providers electronically. 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. Niivana may contact you by telephone, mail, or email to verify your Account information. Niivana may request further information from you, and you agree to provide such further information to ensure that you have not fraudulently created your Account. If you do not provide this information in the manner requested within 14 days of the request, 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.
We offer you the chance to enroll to receive SMS/text messages from Niivana regarding account- related alerts, reminders, and messages from your coaches. By enrolling in Niivana’s SMS/text messaging service, you agree to receive text messages from Niivana to your mobile phone number provided, and you certify that your mobile number provided is true and accurate and that you are authorized to enroll the designated mobile number to receive such text messages. You acknowledge and agree that the text messages may be sent using an automatic telephone dialing system and that standard message and data rates apply. Message frequency varies. To unsubscribe from text messages at any time, reply STOP to the text message you received. You consent that following such a request to unsubscribe, you may receive one final text message from Niivana confirming your request.
ATTENTION: Email and text messages are not secure methods of communication, and we cannot ensure the security or confidentiality of messages sent by email and/or text message. Information, including personal health information, transmitted by email or text message is not encrypted and could be read by a third party. If you would prefer not to exchange personal health information via email or text message, please notify us at support@niivana.com.
By providing your phone number, you are agreeing to be contacted by or on behalf of Niivana and the Providers at the number you have provided, including calls, to receive informational, Services related (e.g., progress tracking, appointment reminders, etc.) and marketing communications relating to the Platform and Services. You can opt-out of receiving further calls from us by emailing us at support@niivana.com with the subject line 'OPT OUT' and your telephone number. Please note, that by withdrawing your consent, some Platform features and certain Services may no longer be available to you.
The App is part of our Platform and we grant you the rights to use the App as provided in Section 9 below subject to the restrictions set forth in Section 9. Further, to use our App to receive Services you must have a mobile device that is compatible with the App. Niivana does not provide you with equipment to use the App and does not warrant that the App will be compatible with your mobile device. You may use mobile data in connection with the App and may incur additional charges from your wireless provider for these services. You are responsible for complying with any third-party terms of service and paying all fees charged by third parties to access and use the App, including, without limitation, the payment of all applicable fees associated with any carrier service plan you use in connection with your use of the App (such as data, SMS, MMS, roaming, and other applicable fees charged by the carrier). You agree that you are solely responsible for any such charges. You acknowledge that Niivana may from time to time issue upgraded versions of the App, and may automatically electronically upgrade the version of the App that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms of Service will apply to all such upgrades. Any third-party code that may be incorporated in the App is covered by the applicable open source or third-party license, if any, authorizing use of such code. The App originates in the United States, and is subject to, and you agree to comply with, United States export laws and regulations. The App may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the App may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the App and the Services.
Apps provided from App Store by Apple. The following applies to any App you acquire from the Apple App Store (“App Store-Sourced App”): You acknowledge and agree that these Terms of Service are solely between you and Niivana, not Apple, and that Apple has no responsibility for the App Store- Sourced App or content thereof. Your use of the App Store- Sourced App must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store-Sourced App. In the event of any failure of the App Store-Sourced App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store-Sourced App to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store-Sourced App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms of Service and any law applicable to Niivana as provider of the App.
You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the App Store-Sourced App or your possession and/or use of the App Store-Sourced App, including, but not limited to: (a) product liability claims; (b) any claim that the App Store- Sourced App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms of Service and any law applicable to Niivana as provider of the software. You acknowledge that, in the event of any third-party claim that the App Store-Sourced App or your possession and use of that App Store-Sourced App infringes that third-party’s intellectual property rights, Niivana, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Service. You and Niivana acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries to these Terms of Service as relates to your license of the App Store-Sourced App, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service as they relate to your license of the App Store-Sourced App against you as a third- party beneficiary thereof.
Apps provided from Google Play Store. The following applies to any Apps you acquire from the Google Play Store (“Google-Sourced App”): (a) you acknowledge that these Terms of Service are between you and Niivana only, and not with Google, Inc. ( “Google”); (b) your use of Google- Sourced App must comply with Google’s then-current Google Play Store Terms of Service; (c) Google is only a provider of the Google Play Store where you obtained the Google-Sourced App; (d) Niivana, and not Google, is solely responsible for its Google-Sourced App; (e) Google has no obligation or liability to you with respect to Google-Sourced App or these Terms of Service; and (f) you acknowledge and agree that Google is a third-party beneficiary to these Terms of Service as it relates to the Google-Sourced App.
All questions and requests relating to Platform support must be directed to Niivana. To submit a support request, please email us at support@niivana.com. Niivana will use commercially reasonable efforts to respond to questions and provide support during business hours (Monday - Friday from 9AM ET to 6 PM ET). Please note that we may change or remove functionality and other features of the Platform at any time, without notice.
Niivana and its licensors and suppliers, as applicable, retain all right, title, and interest in and to the Platform, the Services, Content and all of Niivana’s trademarks, tradenames, logos, and branding, and all derivative works thereof, and any patent, copyright, trade secret, trademark, service mark, and other intellectual property, or proprietary rights in any of the foregoing (the “Niivana IP”), and Niivana reserves all rights in the Niivana IP not expressly granted herein. Nothing contained on the Platform should be construed as granting, by implication, estoppel, waiver or otherwise, any license or right to use any trademarks, service marks, or logos displayed on the Platform without the written grant thereof by Niivana or the third party owner of such trademarks, service marks, and/or logos. The Platform may contain other proprietary notices and copyright information, the terms of which you agree to follow.
Subject to these Terms of Service and the payment of all applicable fees, Niivana grants you a revocable, non-transferable (except as provided below), personal, nonexclusive license to (i) access and use the Platform as hosted by Niivana or its third party hosting providers to receive Services from Providers and to use the Content made available through the Platform for your own personal use in connection with receiving Services from Providers and solely in accordance with the features made available to you and (ii) install and use a compiled code copy of the App on mobile devices owned or leased solely by you for your own personal use in connection with receiving Services from Providers and solely in accordance with the features made available to you. The foregoing license grant is not a sale of the Platform or any copy thereof, and Niivana and its third-party partners or suppliers retain all right, title, and interest in the Platform and all derivative works thereof and intellectual property rights therein and thereto and reserves all rights not expressly granted under these Terms of Service.
You may not: (a) modify, disassemble, decompile or reverse engineer the App, except to the extent that such restriction is expressly prohibited by law; (b) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the App to any third party or use the App to provide time sharing or similar services for any third party; (c) make any copies of the App; (d) remove, circumvent, disable, damage or otherwise interfere with security-related features of the App, features that prevent or restrict use or copying of any content accessible through the App, or features that enforce limitations on use of the App; or (e) delete the copyright and other proprietary rights notices on the App.
You agree not to store, copy, modify, reproduce, retransmit, distribute, disseminate, rent, lease, loan, sell, publish, broadcast, display, or circulate the Platform or Content to anyone or otherwise exploit the Platform or Content for any commercial purpose. You agree not to (i) access the Platform or use the Services in any unlawful way or for any unlawful purpose; (ii) post or transmit (a) a message under a false name, or (b) User Content which is (1) libelous, defamatory, obscene, fraudulent, false, or contrary to the ownership or intellectual property rights of any other person, or (2) contains or promotes any virus, worm, Trojan horse, time bomb, malware, or other computer programing or code that is designed or intended to damage, destroy, intercept, download, interfere, manipulate, or otherwise interrupt or expropriate the Platform, personal information, software, equipment, servers, or Information or facilitate or promote hacking or similar conduct; (iii) impersonate or misrepresent your identity or falsely state or misrepresent your affiliation with a person or entity; (iv) tamper, hack, spoof, copy, modify, or otherwise corrupt the administration, security, or proper function of the Platform; (v) use robots or scripts with the Platform or frame or utilize framing techniques to enclose, or deep link to, the Site or any Content; (vi) attempt to reverse engine, reverse assemble, reverse compile, decompile, disassemble, translate, or otherwise alter, defraud, or create false results from any executable code, information on, or received by the Platform; (vii) to have any antivirus or antispyware software running that is set to override the internet browser’s cookies setting; (viii) incorrectly identify the sender of any message transmitted to Niivana. You may not alter the attribution or origin of electronic mail, messages, or posting; (ix) harvest or collect information about any other individual who uses the Platform or the Services; (x) infringe or facilitate infringement on any copyright, patent, trademark, trade secret, or other proprietary, publicity, or privacy rights of any party, including such rights of third parties.
If you choose to give us feedback, such as suggestions to improve our Platform and/or Services, we may act on your feedback without obligation to you and you hereby grant us a worldwide, perpetual, fully paid up, royalty-free, nonexclusive, irrevocable license, with right of sublicense to use, copy, modify, translate, adapt, publicly display and perform, make, have made, distribute, sell, create derivative works of and otherwise commercially exploit such feedback, at our discretion without any obligation to you. Niivana will never publish your name or other identifying information in connection with any testimonial unless you have given us your prior approval. Niivana may republish any publicly available review, comment, or testimonial about Niivana or the Platform on the Platform or in other media.
The Platform and Services are only for Users of the age of 18. If you are under the age of 18, please do not attempt to register with us or create an Account 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, we will promptly delete that information. If you believe we have collected personal information from someone under the age of 18, please notify us in accordance with the process set forth in our Privacy Policy.
Although Niivana attempts to ensure the integrity and accuracy of the Platform and Service descriptions, it makes no representations, warranties or guarantees whatsoever as to the correctness or accuracy of the Platform, Service descriptions and other Content made available through the Platform. It is possible that the Platform or Content could include typographical errors, inaccuracies or other errors, and that unauthorized additions, deletions and alterations could be made to the Platform or Content by third parties. In the event that an inaccuracy arises, please inform Niivana so that it can be corrected. Information and Content contained on the Platform may be changed or updated without notice. Additionally, Niivana shall have no responsibility or liability for information or Content posted to the Platform from any non-Niivana affiliated third party.
The Platform may contain other content, products or services which are offered or provided by third parties ("Third Party Content"), links to Third Party Content (including but not limited to links to other websites) or advertisements which are related to Third Party Content. We have no responsibility for the creation of any such Third Party Content, including (but not limited to) any related products, practices, terms or policies, and we will not be liable for any damage or loss caused by any Third Party Content.
Niivana makes no representations whatsoever about any other website that you may access through the Platform. When you access a non-Niivana site, please understand that it is independent from Niivana, and that Niivana has no control over the content on that website. In addition, a link to a non-Niivana website does not mean that Niivana endorses or accepts any responsibility for the content, or the use, of the linked site. It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access any of the third party sites linked to the Platform, you do this entirely at your own risk. You acknowledge and agree that the Niivana Terms of Service and Privacy Policy do not apply to third party sites. You will need to review the terms of service and privacy policy of the third party site and your use of the third party site will be subject to the terms and conditions imposed by the third party operating the third party site.
Your use of the Platform and Services is subject to all additional terms, policies, rules, or guidelines applicable to the Platform and Services, or any component thereof, that we may post on or link to from the Platform or otherwise provide to you (the “Additional Terms”), such as end-user license agreements for any downloadable software applications, or rules that are applicable to a particular feature or function of the Platform, a particular Service, or Content made available through the Platform. All Additional Terms are incorporated by this reference into, and made a part of, these Terms of Service.
Certain features of the Platform may permit users submit, upload, post or transmit health information, medical history, conditions, problems, symptoms, personal information consent forms, messages, documents, files, information, videos, photos, images, and other content and materials (collectively “User Content”) and to share User Content with your Provider or others through the Platform as you direct. You hereby grant Niivana a worldwide, non-exclusive, royalty-free, fully paid up, right and license (with the right to sublicense) to use, host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed) to provide you with the Services and as otherwise consented to or directed by you. We and our Providers will not use your User Content other than to provide you with the Services or as otherwise consented to or directed by you.
You are solely responsible for your User Content and you represent and warrant that you have the necessary licenses, rights, consents, and permissions, to use and to authorize Niivana and your Provider to use the User Content to provide you with the Services and as otherwise consented to or directed by you. You agree not to provide any User Content that (1) is false, inaccurate, defamatory, abusive, libelous, unlawful, obscene, threatening, harassing, fraudulent, pornographic, or harmful, or that could encourage criminal or unethical behavior, (2) violates or infringes the privacy, copyright, trademark, trade dress, trade secrets or intellectual property rights of any person or entity, or (3) contains or transmits a virus or any other harmful component. You agree not to contact other Platform Users through unsolicited e-mail, telephone calls, mailings or any other method of communication. You represent and warrant to Niivana that you have the legal right and authorization to provide all User Content to Niivana and your Provider for use as set forth herein and required by Niivana and your Provider.
Niivana is under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Niivana may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Term of Service or is otherwise objectionable. We expressly disclaim any and all liability in connection with User Content.
Subject to applicable law, we reserve the right to maintain, delete, or destroy all communications and materials posted or uploaded to the Platform pursuant to our internal record retention and/or content destruction policies. After such termination, we will have no further obligation to provide you with access to the Platform or your User Content or with Services, except to the extent we are obligated to provide you access to your health records or Providers are required to provide you with continuing care under their applicable legal, ethical, and professional obligations to you. Any clinical records created as a result of your use of the Platform and the Services will be securely maintained by Niivana and/or 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 state and federal law, typically at least six (6) years.
You agree to indemnify, and hold harmless Niivana and the Providers from and against all claims, demands, suits, proceedings, actions, proceedings, damages, settlements, costs, expenses, fines, penalties and all other liabilities (including without limitation reasonable attorneys’ fees and court costs) brought against or incurred by Niivana or its affiliates or their respective directors, officers, employees, managers, members, consultants, contractors, advisors and agents arising out of any User Content you upload to or transmit through the Platform.
We disclaim any responsibility or liability for copyrighted materials posted on our Site or available through the App. If you believe that your work has been copied in a manner that constitutes copyright infringement, please follow the procedures set forth below.
Niivana respects the intellectual property rights of others and expects its Users to do the same. In accordance with the Digital Millennium Copyright Act ("DMCA"), we will respond promptly to notices of alleged infringement that are reported to Niivana’s Designated Copyright Agent, identified below.
Notices of Alleged Infringement for Content Made Available on the Site or through the App
If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through our Site by sending us a notice ("Notice") complying with the following requirements.
Deliver this Notice, with all items completed, to our Copyright Agent:
Niivana, LLC, 555 Madison Avenue, Suite 1202, New York, NY 10022
Niivana is committed to being compliant with the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAM-SPAM ACT”) and the Telephone Consumer Protection Act (“TCPA”). You consent to receive text messages from us as set forth in Section 6, above (“Consent to Receive Calls and Text Messages”). Emails, newsletters, and text messages received from us are intended to fully comply with the CAM-SPAM ACT and the TCPA. In the event you receive an email or text message from us which you do not believe is fully compliant with the CAN-SPAM ACT or the TCPA, please contact us immediately at the address listed below under the section “How to Contact Us.”
WHILE THE PLATFORM PROVIDES ACCESS TO CERTAIN PROVIDERS FOR NON-EMERGENCY HEALTH CARE, NIIVANA IS NOT A HEALTHCARE PROVIDER AND CANNOT AND DOES NOT DIAGNOSE OR TREAT YOUR HEALTH CONDITIONS. NIIVANA PROVIDES NO ENDORSEMENT, REPRESENTATION OR WARRANTY THAT SERVICES PROVIDED BY THE PROVIDERS ARE OR WILL BE SAFE, EFFECTIVE OR APPROPRIATE FOR YOU. DO NOT USE THE PLATFORM OR THE SERVICES FOR MEDICAL EMERGENCIES. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL 911 (OR THE EQUIVALENT CONTACT NUMBER FOR EMERGENCY SERVICES IN YOUR REGION) IMMEDIATELY.
THE PLATFORM, INCLUDING ALL CONTENT, AND THE SERVICES ARE PROVIDED "AS IS," WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND NIIVANA DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT, COURSE OF DEALING OR USAGE OF TRADE. NIIVANA DOES NOT WARRANT THAT ACCESS TO OR USE OF THE PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE OR THAT DEFECTS IN THE PLATFORM WILL BE CORRECTED. NIIVANA DOES NOT WARRANT THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE INFORMATION OBTAINED THROUGH THE PLATFORM OR THE SERVICES. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE PLATFORM, THE SERVICES, AND LINKED WEBSITES. NIIVANA DOES NOT WARRANT THAT FILES AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER DESTRUCTIVE PROGRAMMING. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACK UP AND SECURITY. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE PLATFORM OR ANY CONTENT AVAILABLE THROUGH THE PLATFORM WILL CREATE ANY WARRANTY REGARDING NIIVANA OR THE PLATFORM.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. TO THE EXTENT THAT WE MAY NOT DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED BY LAW.
YOU HEREBY RELEASE US AND AGREE TO HOLD US HARMLESS FROM ANY AND ALL CAUSES OF ACTION AND CLAIMS OF ANY NATURE RESULTING FROM THE SERVICES OR THE PLATFORM, INCLUDING (WITHOUT LIMITATION) ANY ACT, OMISSION, OPINION, RESPONSE, ADVICE, SUGGESTION, INFORMATION AND/OR SERVICE OF ANY PROVIDER AND/OR ANY OTHER CONTENT OR INFORMATION ACCESSIBLE THROUGH THE PLATFORM.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: NIIVANA SHALL NOT BE LIABLE FOR THE ACTS OR OMISSIONS OF THE PROVIDERS. NIIVANA AND THE PROVIDERS ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, COST TO PROCURE SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING IN ANY WAY TO THE PLATFORM OR THE SERVICES OR ANY CONTENT OR ANY LINKED WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE REASONABLE FORSEEABLE. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS IS TO STOP USING THE PLATFORM AND THE SERVICES. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM LIABILITY OF NIIVANA TO YOU WITH RESPECT TO YOUR USE OF THE PLATFORM, SERVICES, CONTENT AND LINKED WEBSITES IS LIMITED TO THE GREATER OF (X) $500 (FIVE HUNDRED DOLLARS) AND (Y) THE FEES YOU PAID NIIVANA IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION FIRST AROSE.
YOU HEREBY AGREE TO WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL LAWS THAT LIMIT THE EFFICACY OF SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. TO THE EXTENT THAT WE MAY NOT LIMIT OUR LIABILITIES, THE EXTENT OF SUCH LIABILITIES WILL BE THE MINIMUM PERMITTED BY LAW. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 18 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You alone are responsible for your communications, interactions, agreements, representations, promises or any other involvement with Providers. Niivana reserves the right, but has no obligation, to monitor disagreements between you and a Provider. If you have a dispute with a Provider, you irrevocably and forever release Niivana and its affiliates and their respective directors, officers, employees, managers, members, consultants, contractors, advisors and agents from any and all claims, demands, suits, causes of action, proceedings, losses, liabilities, damages, settlements, fees, costs, expenses and all other liabilities (whether actual and consequential) of any kind and nature, known and unknown, arising out of or in any way connected with such disputes.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
You agree to indemnify, and hold harmless Niivana and its affiliates and their respective directors, officers, employees, managers, members, consultants, contractors, advisors and agents, including without limitation the Providers, from and against any and all claims, demands, suits, causes of action, proceedings, losses, liabilities, damages, settlements, fees, costs, expenses and all other liabilities (including without limitation reasonable attorneys’ fees, expert witness fees and court costs) of any kind whatsoever arising directly or indirectly out of or in connection with: (a) your access to, use of, or alleged use of, the Platform, Services or Content and any actions taken through your Account; (b) your violation of any portion of these Terms of Service, any representation, warranty, or agreement referenced in these Terms of Service or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim. This indemnity is in addition to the other indemnities you provide us elsewhere in these Terms of Service.
Your wireless carrier, the manufacturer and retailer of your mobile device, the developer of the operating system for your mobile device, the operator of any application store, marketplace, or similar service through which you obtain the Platform, and their respective affiliates, suppliers, and licensors (collectively, the “Select Third Parties”) are not parties to these Terms of Service and they do not own and are not responsible for the Platform. Niivana, and not any Select Third PartY, is responsible for addressing any claims raised by you or any third party regarding the Platform or your use or possession thereof, including claims related to product liability, legal, or regulatory requirements, and consumer protection or similar legislation. You are responsible for complying with all application store and other applicable Select Third Parties’ terms and conditions. YOU AGREE (I) THE SELECT THIRD PARTIES DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE PLATFORM, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE; (II) IN NO EVENT WILL THE SELECT THIRD PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) ARISING OUT OF THIS AGREEMENT OR THE PLATFORM, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (III) IN ANY EVENT, THE MAXIMUM LIABILITY OF ANY SELECT THIRD PARTY FOR ALL CLAIMS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) OF EVERY KIND WILL IN NOT EXCEED FIVE DOLLARS ($5.00); AND (IV) YOU WAIVE ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT YOU MAY HAVE AGAINST THE SELECT THIRD PARTIES ARISING OUT OF THE SITE AND THESE TERMS OF SERVICE. THE THIRD PARTIES ARE INTENDED THIRD PARTY BENEFICIARIES OF THESE TERMS OF SERVICE, AND ARE CAPABLE OF DIRECTLY ENFORCING ITS TERMS. NOTHING CONTAINED IN THESE TERMS OF SERVICE WILL BE CONSTRUED AS MODIFYING OR AMENDING ANY AGREEMENTS OR OTHER TERMS BETWEEN YOU AND THE SELECT THIRD PARTIES WITH REGARD TO THEIR SUBJECT MATTER. In the event of any claim that the Platform or your use thereof infringes a third party’s intellectual property rights, the Select Third Parties are not responsible for the investigation, defense, settlement, or discharge of the infringement claim.
You may not assign, transfer, or delegate the Terms of Service or any part thereof without Niivana’s prior written consent. Niivana 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 the heirs, successors, and permitted assignees of the parties.
23.1 Generally; Waiver of Jury Trial; Wavier of Class Action. You and Niivana agree that any dispute, claim or controversy arising out of or relating in any way to these Terms of Service or your use of the Platform and Services, shall be determined by binding arbitration instead of in courts of general jurisdiction. Arbitration is more informal than bringing a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and is subject to very limited review by courts. Arbitration allows for more limited discovery than in court, however, we agree to cooperate with each other to agree to reasonable discovery in light of the issues involved and amount of the claim. Arbitrators can award the same damages and relief that a court can award, but in so doing, the arbitrator shall apply substantive law regarding damages as if the matter had been brought in court, including without limitation, the law on punitive damages as applied by the United States Supreme Court. You agree that, by agreeing to these Terms of Service, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Niivana 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 of Service and any other contractual relationship between you and Niivana. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND NIIVANA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
23.2 Notice of a Claim. If you desire to assert a claim against Niivana, and you therefore elect to seek arbitration, you must first send to Niivana, by certified mail (return receipt requested) or overnight courier (signature required), a written notice of the claim ("Notice"). The Notice to Niivana should be addressed to the address below ("Notice Address"): Niivana, LLC, 555 Madison Avenue, Suite 1201, New York, New York 10022. If Niivana desires to assert a claim against you and therefore elects to seek arbitration, it will send, by email or by certified mail (return receipt requested) or overnight courier (signature required), a written Notice to the most recent email address or mailing address we have on file, or otherwise in our records, for you.
A Notice, whether sent by you or by Niivana, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If Niivana and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Niivana may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by Niivana or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration from the American Arbitration Association at www.adr.org. If you are required to pay a filing fee, after Niivana receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for more than US $10,000, in which case the payment of any fees will be decided by the AAA Rules.
23.3 AAA Rules; Fees; Process. The arbitration will be governed by the laws of the State of New York, the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms of Service, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by requesting them from us by writing to us at the Notice Address. The arbitrator is bound by the terms of these Terms of Service. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of these Terms of Service, including this arbitration agreement.
Any arbitration hearing will take place at a location to be agreed upon in New York, New York, but if the claim is for ten thousand U.S. Dollars (USD $10,000) or less, the party bringing the claim may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a nonappearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If your claim exceeds US $10,000, the right to a hearing will be determined by the AAA Rules.
Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of Niivana’s last written settlement offer made before an arbitrator was selected (or if Niivana did not make a settlement offer before an arbitrator was selected), then Niivana will pay you the amount of the award or US $1,000, whichever is greater.
Except as expressly set forth herein, the payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules. Each party shall pay for its own costs and attorneys' fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys' fees, or if there is a written agreement providing for payment or recovery attorneys’ fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Niivana for all monies previously disbursed by Niivana that are otherwise your obligation to pay under the AAA Rules.
23.4 No Class Actions; Consolidation of Claims. YOU AND NIIVANA AGREE THAT EACH OF YOU AND NIIVANA 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, unless both you and Niivana agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator 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.
23.5 Exceptions. Despite the provisions of Section 23.4, You and Niivana both agree that nothing in these Terms of Service will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
23.6 Modifications to this Provision. If Niivana makes any future change to this arbitration provision (other than a change to Niivana’s address for Notice), you may reject the change by sending us written notice within 30 days of the change to Niivana’s address for Notice, in which case your account with Niivana will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
23.7 Enforceability; Savings Clause. If the class action provision above is found to be unenforceable or if the entirety of this Section 23 is found to be unenforceable, then the entirety of this Section 23 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 24 will govern any action arising out of or related to these Terms of Service.
These Terms of Service are governed by the laws of the State of New York without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms of Service, or any of our other policies referenced herein, you and Niivana agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within New York, New York for the purpose of litigating any dispute.
We will not be deemed to be in breach of these Terms of Service or liable for any breach of these Terms of Service or our Privacy Policy due to any event or occurrence beyond our reasonable control, including without limitation, acts of God, terrorism, war, invasion, pandemics, epidemics, failures of any public networks, electrical shortages, earthquakes or floods, civil disorder, strikes, fire or other disaster.
Niivana reserves the right, in its sole discretion, to terminate your access to all or part of the Site and/or App, with or without cause, and with or without notice.
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. Use of section headers in these Terms of Service is for convenience only and will not have any impact on the interpretation of any provision. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms of Service, or any provision of these Terms of Service, be a waiver of any subsequent breach or default or a waiver of the provision itself.
These Terms of Service constitute the entire agreement between Niivana and you pertaining to the subject matter hereof and supersede and replace all prior and contemporaneous agreements between you and Niivana with respect to the Platform and the Services. Certain provisions of these Terms of Service may be superseded by expressly designated legal notices or terms located on particular pages within this Site. Upon termination of these Terms of Service, any provision that by its nature or express terms should survive, will survive.
Unless expressly stated in the Terms of Service to the contrary, nothing herein is intended to confer any rights or remedies on any persons other than you and Niivana and its affiliates and nothing in the Terms of Service is intended to relieve or discharge the obligation or liability of any third persons to you or Niivana or its affiliates, nor shall any provision give any third parties any right of subrogation or action over against you or Niivana or its affiliates.
The Site and App are Copyright ©2021-2022 Niivana, LLC, all rights reserved. All trademarks, logos, and service marks (“Marks”) displayed on the Site and/or App are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Platform or Services or to receive further information regarding use of the Platform and Services.