Last revised October 28, 2024

Binding Arbitration.  These Terms of Use provide that all disputes between you and Ostro that in any way relate to these Terms of Use or your use of the Digital Services 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 Use (except for matters that may be taken to small claims court). 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 us.

These terms and conditions of use (“Terms of Use”) govern your use of the online interfaces and digital properties (e.g., websites) owned and controlled by Rise Healthcare Tech, Inc., doing business as both “Ostro” and “RxDefine”, and any of our affiliates (collectively, “Ostro”, “we” and “us”), including (a) the ostrohealth.com, kinara.co, and rxdefine.com websites and any related or associated websites and domains and (b) via e-mail, text message, phone call, chat, and other electronic communications between you and us (along with all related services and functionality that we provide, collectively, the “Digital Services”). You acknowledge and agree that we rebranded from RxDefine to Ostro in November 2022, and all references in these Terms of Use and elsewhere across the Digital Services to RxDefine, Ostro, Ostro Health or similar terms refer, in each case, to us.

Your acceptance of and compliance with these Terms of Use is a condition to your access and use of the Digital Services.

By using or otherwise accessing the Digital Services or clicking to accept or agree to these Terms of Use, you (1) accept and agree to these Terms of Use and (2) agree to comply with all rules, policies, and disclaimers posted on the Digital Services or about which you are notified. If you do not agree to be bound by and to comply with the Terms of Use you are not authorized to use the Digital Services; please promptly exit the Digital Services.

All references to “you” or “your,” as applicable, mean the person who accesses, uses, and/or participates in the Digital Services in any manner, and each of your heirs, assigns, and successors. If you use the Digital Services on behalf of an entity or another person, you represent and warrant that you have the authority to bind that entity or person, your acceptance of the Terms of Use will be deemed an acceptance by that entity or person, and “you” and “your” herein shall refer to, as applicable, that person or that entity along with its directors, officers, employees, and agents.

Please also consult our Privacy Policy for a description of our privacy practices and policies.

Ostro is not a medical group. We do not provide medical advice or care. Information communicated to you through our Digital Services is not a substitute for a discussion with a licensed medical practitioner and should never be applied or interpreted as medical advice or any form of personal treatment plan.

Any telemedicine or other clinical consultations or services obtained or facilitated through our Digital Services are provided by an independent healthcare Clinician (as defined below). Your Clinician, and not Ostro, is responsible for providing you with a Notice of Privacy Practices that describes its collection and use of your health information. Please contact your Clinician with any questions about your Clinician’s Notice of Privacy Practices. For purposes of these Terms of Use, “Clinician” refers to any individual who is acting in any medical or clinical capacity, including in the capacity of a doctor, nurse, or other medical professional.

1. Ownership of the Digital Services

All pages, features, and content within these Digital Services and any material made available for download are the property of Ostro, or its licensors, including our customers, partners, and suppliers, as applicable. The Digital Services are protected by United States and international copyright and trademark laws. The contents of the Digital Services, including without limitation all data, files, documents, code, algorithms, models, interfaces, text, photographs, graphics, images, audio, and video, and any materials accessed through or made available for use or download through these Digital Services (“Content”) may not be copied, distributed, modified, reproduced, published, or used, in whole or in part, except for purposes authorized by these Terms of Use or otherwise approved in writing by us. Without our express and prior written consent you may not frame or utilize framing techniques to enclose, or deep link to, any name, trademarks, service marks, logo, Content, or other proprietary information (including images, text, page layout, or form) of ours. Subject to your complete and ongoing compliance with these Terms of Use, we grant you a non-transferable, non-exclusive, revocable, limited license to access and use the Digital Services, including its Content, for personal uses. We reserve all rights, including intellectual property rights, not expressly granted to you by these Terms of Use.

2. Access to Digital Services, Security and Restrictions

You are prohibited from violating or attempting to violate the confidentiality, integrity, availability, or security of the Digital Services, 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 or otherwise circumvent security, access control or limitation, or authentication measures without proper authorization; or (c) accessing or using the Digital Services or any portion thereof without authorization, in violation of these Terms of Use or in violation of applicable law; or (d) use any device, software, application, code, script, or routine to interfere or attempt to interfere with the proper working of these Digital Services or any activity being conducted on these Digital Services. You are further prohibited from accessing the Digital Services or Content to build a similar or competitive website, product, or service.

You may not use any scraper, crawler, spider, robot, or other automated or AI-powered technology, AI Tools, or means of any kind to access or copy data on the Digital Services, deep-link to any feature or content on the Digital Services, utilize Content for model or other product or service development or training purposes, or bypass any robot exclusion headers or other measures we may use to prevent or restrict access to the Digital Services.

3. Ostro Content; Third Party Services

Although we attempt to ensure the integrity and accuracy of the Digital Services, we make no representations, warranties, or guarantees whatsoever as to the correctness or accuracy of the Digital Services and Content (as described above) thereon. In providing the Content and Digital Service, we may also make use of AI Tools (as such term is defined in our Privacy Policy), including to create, modify, enhance, distribute, publish, or promote the Content and Digital Services. It is possible that the Digital Services could include disputed or incorrect Content, typographical errors, inaccuracies, or other errors, and that unauthorized additions, deletions, and alterations could be made to the Digital Services by third parties. In the event that an inaccuracy arises, please inform us so that it can be corrected. We reserve the right to unilaterally update or correct any inaccuracies or errors and any other information on the Digital Services, including any Content, without notice. Additionally, we shall have no responsibility or liability for information or Content posted to the Digital Services from any third party or person other than by us and our legal affiliates

The content of the Digital Services, including without limitation, text, copy, audio, video, photographs, illustrations, graphics, and other visuals, is for educational and informational purposes only and does not constitute professional medical advice, diagnosis, treatment, or recommendations of any kind. Product coverage and availability information, including but not limited to statements of formulary coverage, dispensary availability, or eligibility of financial assistance is provided also and solely on a non-personalized basis. Always seek the advice of your Clinician, or other qualified heath care professionals, with any questions or concerns you may have regarding your individual healthcare needs and any medical conditions. We do not recommend or endorse any specific Clinicians, tests, products, procedures, opinions, or other information that may be included on, referenced by, or accessible through the Digital Services.

Reliance on any Content or information appearing on the Digital Services, whether provided by us, our Content providers, our customers or clients, other users of the Digital Services, Third Party Services, or others, including affiliates of any of the foregoing, is solely at your own risk.

We make no representations whatsoever about any other website, application, or service, or any related content or information, that is not owned and provided by us and that you may access through these Digital Services (“Third Party Services”). When you access any Third Party Services, including Telehealth Services (as defined below), please understand that it is independent from us and that we have no control over the Third Party Service, including its accuracy or the security or privacy practices of the parties that make such Third Party Service available to you. In addition, a link or other connection or transfer to any Third Party Service does not mean that we endorse or accept any responsibility for such Third Party Service or its use. It is up to you to take precautions to ensure that whatever you select for your further engagement or use is appropriate for you. If you decide to access any Third Party Service linked to or accessible through these Digital Services, you do this entirely at your own risk.

4. User Information

You agree to: (a) provide true, accurate, current, and complete information when using the Digital Services at all times, including when registering and establishing your account (“User Information”) and (b) to the extent you maintain a user account with us in connection with one or more Digital Services, maintain and promptly update your User Information to keep it true, accurate, current, and complete. Without limiting our rights to terminate your account or the Digital Services at our discretion, if you provide any User Information or other information that is untrue, inaccurate, not current, or incomplete, or that we have reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, we may suspend or terminate your account.

In the event access to the Digital Services or a portion thereof is limited requiring a user ID and password or other User Information, including to confirm or verify your identity (“Protected Areas”), you agree to access Protected Areas using only, as applicable, your user ID and password as provided to you by us and your actual and legitimate identity and other User Information. You agree to protect the confidentiality of your user ID and password, and not to share or disclose your user ID or password to any third party or allow others to access your account or Digital Services on your behalf except where otherwise expressly permitted by us. You agree not to misrepresent, misstate, or falsify your identity to us, including purporting to be, or otherwise using the identity or other personal information of, any other person. You agree that you are fully responsible for all activity occurring under your user ID and all activity undertaken by you within any Protected Areas. Your access to the Digital Services may be revoked by us at any time with or without cause. You agree to defend, indemnify, and hold us harmless from and against all third party claims, damages, and expenses (including reasonable attorneys’ fees) against or incurred by arising out of your breach of these Terms of Use or violation of applicable law, your use or access of the Digital Services, your submission of any false or fraudulent User Information, or access by anyone accessing the Digital Services using your user ID and password.

5. Disclaimer of Warranties

OSTRO DOES NOT WARRANT THAT ACCESS TO OR USE OF THE DIGITAL SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE DIGITAL SERVICES WILL BE CORRECTED. THE DIGITAL SERVICES, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY SERVICE RELATED TO THE DIGITAL SERVICES, ARE PROVIDED "AS IS," WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND TITLE/NON-INFRINGEMENT. OSTRO DOES NOT WARRANT THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE CONTENT OR INFORMATION OBTAINED THROUGH THE DIGITAL SERVICES.

YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE DIGITAL SERVICES AND RELATED SERVICES, INCLUDING CONTENT AND LINKED WEBSITES. OSTRO DOES NOT WARRANT THAT THE DIGITAL SERVICES, INCLUDING 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.

WARRANTIES RELATING TO PRODUCTS OR SERVICES OFFERED, SOLD, AND DISTRIBUTED THROUGH THE DIGITAL SERVICES ARE SUBJECT TO SEPARATE WARRANTY TERMS AND CONDITIONS, IF ANY, PROVIDED WITH OR IN CONNECTION WITH THE APPLICABLE PRODUCTS OR SERVICES.

SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

6. No Medical Advice

Ostro is not a medical group. Ostro does not provide medical advice or care. Without limiting the foregoing, by using the Digital Services you acknowledge and agree that we and our personnel, including Navigators (as defined below), will not (a) be under any obligation to provide you with any medical advice, (b) be deemed to have entered into a patient relationship (e.g., doctor-patient, nurse-patient) with you or any other person, (c) have any responsibility for your medical or clinical treatment or care, including the creation, establishment, modification, or oversight of any medical practices, diagnosis, treatment recommendations, prescribing, or independent medical decision-making of any kind, whether telemedicine, in-person, or via any other delivery mechanism, or (d) if you are a Clinician or acting on behalf of a Clinician, agree, or be deemed to have undertaken, to do any of the foregoing for or on behalf of any patient or other individual under your care or with whom you have a relationship with. You further acknowledge agree that by interacting with the Digital Services there is no guarantee that you will achieve any specific outcome, including that you will be issued a prescription, whether in general or for a specific drug, device, or other product, or receive or be prescribed any other specified diagnosis, medicine, product, or other course of treatment or care. Additionally, you acknowledge and understand that information shared through our Digital Services such as formulary coverage status or eligibility criteria for financial support is delivered in a non-personal way and is not an explicit statement or expectation of suitability to your or any other individual’s specific healthcare circumstances. Your interaction with the Digital Services is not intended to take the place of your relationship with your own Clinician(s), including your regular healthcare practitioners or primary care physician, and you are responsible for discussing and agreeing on all health and medical care decisions with your own Clinician, which shall not include us or our personnel. We do not make any representations or warranties about the training or skills of any individual who delivers Content, information, or services via the Digital Services.

7. Navigator Service.

Certain elements of the Digital Services may be provided, in our sole discretion, by Ostro personnel, including employees, contractors, service providers, and agents, who hold former or current medical qualifications (e.g., MD, RN). Whether qualified as a medical professional or not, in no event shall any navigator or other individual acting on behalf of us act as a Clinician, whether to you or any other person, or enter into or be deemed to be enter into a patient relationship with, or otherwise provide any form of clinical or medical advice, to you or to any other person, whether directly or indirectly. This includes, if you are a Clinician or acting on behalf of a Clinician, to any patient or other individual with whom you may have a patient relationship. As part of the Digital Services, such individuals may provide general and/or personalized “navigation” or similar services (“Navigation Services”) to users of the Digital Services, including you. Ostro personnel providing Navigation Services (“Navigators”) are limited to educating on the product indications, disease state information, and other topics for which they are trained to support. Navigators do not provide medical advice nor do they advise on any other element of a personalized healthcare arrangement. Navigators do not work under the direction of any institution or medical provider with whom you may interact and, if you are Clinician or acting on behalf of a Clinician, Navigators are not authorized to work under your direction. Navigators may not be licensed to practice nursing in your state of residence. The Navigator Service is not an emergency service and cannot assist you in an emergency. In the event of an emergency please dial 911 immediately.

8. Financial Relationships

We work with companies throughout the pharmaceutical, life sciences, healthcare and related industries, including in some cases to make information regarding our clients’ and their partners’ specific products and services available to you through the Digital Services. These arrangements typically include a financial relationship between us and our client through which we are compensated for the services we provide, including making certain of the Digital Services available to you.

We may also partner with providers of Telehealth Services (as defined below) and maintain a financial relationship with these providers as well. However, in these circumstances we do not maintain any financial relationship with any individual healthcare provider who may be otherwise associated with a Telehealth Services provider. Any telemedicine or other clinical consultations or services obtained or facilitated through our Digital Services are provided by your Clinician or Clinician’s entity of affiliation, and not by us. The telemedicine provider is responsible for notifying you of their own terms of use and privacy policy or notice of privacy practices.

We are not compensated based on the specific clinical decisions that you or any other individual do or do not take with respect to your or their personal healthcare.

9. Telehealth Services

Telehealth or telemedicine involves the delivery of healthcare services using electronic communications, information technology, or other means between a healthcare provider and a patient who is not in the same physical location (collectively, “Telehealth Services”). The Digital Services may offer the opportunity to receive Telehealth Services as a Third Party Service (i.e., a service that is not provided by us), including online medical consultations for persons or their caregivers with respect to certain medical conditions.

While Telehealth Services may offer certain potential benefits, including convenience, there are also potential risks associated with the use of telehealth. The Telehealth Services are not a substitute for in-person healthcare in all cases. In order to use the Telehealth Services, you will be required to also review and agree to Telehealth Services provider’s own terms of use and/or privacy policy, as well as certain other documentation where relevant, such as an informed consent regarding the use of the Telehealth Services (the “Patient Consent”). These materials will be provided to you by the relevant Third Party Services provider and accessible through the Digital Services. You agree that we are a third-party beneficiary of these agreements with the Telehealth Services provider, including any Patient Consent, and that we have the right to enforce these agreements against you as well as to access and use certain of your information, including health information, as authorized therein.

If you elect to proceed with Telehealth Services, a licensed Clinician not affiliated with us will conduct any medical consultation scheduled in connection therewith, including to evaluate whether there is a particular product appropriate to treat your condition. We do not determine whether or if you may receive a prescription for or other access to any particular product; all prescribing is based solely on the independent medical decision making of your Clinician. There is no guarantee you will receive a prescription.

You agree that you will use any Telehealth Services only for lawful purposes, including, without limitation, that (a) you will provide truthful and accurate information, including in response to Telehealth Services questionnaires, including any questions asked of you by a Clinician; (b) any prescriptions or other products or services you obtain as a result of your use of such Telehealth Services are for your personal use (or the use of an individual for whom you are an authorized caregiver and where you have disclosed such caregiver relationship); and (c) you will fully and carefully read all provided product information and labels and to contact an appropriate Clinician, such as your physician or a pharmacist, if you have any questions regarding the prescription or other product or service.

10. Not Intended for Children; Interactions with Parents and Caregivers

Our Digital Services are intended for general audiences and are not directed at children and may be accessed and used only by individuals who are able to form legally binding contracts under applicable law of their jurisdiction.

Certain products or services that may be presented or discussed, or for which Content may be otherwise available, through the Digital Services, may be appropriate for minors and/or individuals who are not able and/or are not authorized to use the Digital Services themselves, including because they lack the ability to review these Terms of Use and the Privacy Policy and to provide appropriate and informed consent to the use of the Digital Services. If you are accessing the Digital Services in such as case and on the behalf of such an individual, by using the Digital Services you represent and confirm that (a) you are using the Digital Services on behalf of or for the benefit of an individual who is not authorized or capable of using the Digital Services for themselves (a “Caregiver Subject”), (b) you are such Caregiver Subject’s parent, legal guardian or other duly authorized caregiver (a “Caregiver”), and (c) you will abide by and be subject to these Terms of Use, including communicating any relevant information to the Caregiver Subject as appropriate. When using the Digital Services as a Caregiver, certain references in these Terms of Use, as well as elsewhere in the Digital Services, may refer to “you” (e.g., “your Clinician”) and should be appropriately read and understood as referring to your Caregiver Subject.

11. Not an Insurance Product

Ostro is not an insurer. The services provided by and through the Digital Services are not insurance products. If you desire any type of health or other insurance, you will need to purchase such insurance separately.

12. Limitation of Liability Regarding the Digital Services

TO THE FULLEST EXTENT ALLOWED BY APPLICABLELAW, OSTRO AND ANY THIRD PARTIES MENTIONED OR REFERENCED ON OR INCLUDED INTHESE DIGITAL SERVICES, INCLUDING OUR CLIENTS, CUSTOMERS AND THE PROVIDERS OFANY THIRD PARTY SERVICES, ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT,INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHERDAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSTPROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANYWAY TO THE DIGITAL SERVICES, ANY RELATED OR INCLUDED CONTENT OR INFORMATION,AND/OR ANY THIRD PARTY SERVICE, ARISING IN CONNECTION WITH YOUR OR ANY OTHERPERSON’S USE OF THE DIGITAL SERVICES, AND WHETHER BASED ON WARRANTY, CONTRACT,TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITYOF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE DIGITALSERVICES, ANY RELATED OR INCLUDED CONTENT OR INFORMATION, AND/OR ANY THIRDPARTY SERVICE IS TO STOP USING THE SAME. TO THE EXTENT ANY ASPECTS OF THEFOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM AGGREGATELIABILITY OF OSTRO TO YOU WITH RESPECT TO YOUR USE OF THESE DIGITAL SERVICES,ANY RELATED OR INCLUDED CONTENT OR INFORMATION, AND/OR ANY THIRD PARTY SERVICEIS $500 (FIVE HUNDRED DOLLARS).

13. Dispute Resolution; Arbitration Agreement

PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECTYOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

We will try to work in good faith to resolve any issue you have with or arising out of the Digital Services, if you bring that issue to the attention by contacting us at legal@ostrohealth.com. However, we realize that there may be rare cases where we may not be able to resolve an issue to a user’s satisfaction.

You and we agree that any dispute, claim, or controversy arising out of or relating in any way to these Terms of Use, our Privacy Policy, or your use of the Digital 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 Use, you understand these Terms of Use evidences a transaction involving commerce, and the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and us 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 Use and any other contractual relationship between you and us.

If you desire to assert a claim against us, and you therefore elect to seek arbitration, you must first send to us, by certified mail, a written notice of your claim ("Notice"). The Notice to us should be addressed to: Ostro, Attn: LEGAL NOTICE, 382 NE 191st St., # 71935, Miami, FL 33179 ("Notice Address"). You are also encouraged, but not required, to send a copy of your Notice to legal@ostrohealth.com. If we desire to assert a claim against you and therefore elect to seek arbitration, we will send, by certified mail, a written Notice to the most recent address we have on file or otherwise in our records for you. If we do not have a mailing address on file for you we may provide the Notice to you using other contact information that we have, including your e-mail. A Notice, whether sent by you or by us, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). Failure to engage in this process could result in the award of fees against you in arbitration. If we and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or we may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by us 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 we receive notice at the Notice Address that you have commenced arbitration, we will promptly reimburse you for your payment of the filing fee, unless your claim – either separately or in the aggregate when considered alongside materially similar claims that result from coordinated actions among or between you and other users, and including the cost of such filing and any other reimbursable fee(s) – is for more than US $50,000. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), excluding any rules or procedures governing or permitting class or representative actions and as modified by these Terms of Use, 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. If for any reason AAA is unable to administer arbitration, either party may apply to a court to appoint an arbitrator pursuant to 9 U.S.C. section 5. The arbitrator is bound by the terms of these Terms of Use. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of these Terms of Use, including this arbitration agreement. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator shall also be empowered to consolidate claims raised between the same parties to a single arbitration proceeding. Unless we and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. (If you reside outside of the United States, any arbitration hearings will take place in your country of residence at a location reasonably convenient to you, but will remain subject to the AAA Rules including the AAA rules regarding the selection of an arbitrator.) If your claim is for US $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. 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 our last written settlement offer made before an arbitrator was selected (or if we did not make a settlement offer before an arbitrator was selected), then we 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. The arbitrator has the right to impose sanctions for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11).

The parties agree that AAA has discretion to modify the amount or timing of any administrative or arbitration fees due under AAA rules where it deems appropriate, provided that such modification does not increase the costs to you, and you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by AAA does not constitute a default, waiver, or breach of this Section 13 while such challenge remains pending before AAA, the arbitrator, and/or a court of competent jurisdiction.

YOU AND WE 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, unless both you and we 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. If there is a final judicial determination that applicable law precludes enforcement of this Section’s limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies. 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.

Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also elect to have disputes or claims resolved in a small claims court that are within the scope of that court’s jurisdiction. Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court in your state and county of residence. Seeking such relief shall not waive a party’s right to arbitration under this agreement.

You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following email address: legal@ostrohealth.com. The notice must be sent within 30 days of August 19, 2022 or your first use of the Digital Services, whichever is later, otherwise you shall be bound to arbitrate disputes in accordance with the terms of this Section 13. If you opt-out of these arbitration provisions, we also will not be bound by them.

We will provide 30 days’ notice of any changes affecting the substance of this Section 13. Changes will become effective on the 30th day. If you continue to use the Digital Services after the 30th day, you agree that any unfiled claims of which we do not have actual notice are subject to the revised clause.

If this Agreement to Arbitrate provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void, but the remaining provisions of these Terms of Use shall remain in full force and effect. Exclusive jurisdiction and venue for any claims not subject to arbitration will be in state or federal courts located in and for Delaware.

14. Consent to Receive SMS/Text Messages

Ostro utilizes SMS/text messages to provide users of the Digital Services with the opportunity to receive informational or transactional messages and communications relating to the Digital Services, as well as other communications to which you may specifically consent (collectively “Digital Services Communications”).  Digital Services Communications include (i) the ability to conveniently access certain Digital Services (for instance via a personalized link), (ii) progress tracking, (iii) reminders regarding consultations, refills, Navigator conversations, or other services, (iv) logistical communications (e.g., following up to a message you or we have left), and (v) other communications in support of the Digital Services you use or request.

In connection with the Digital Services you may have the opportunity to provide your phone number, including so that you may receive Digital Services Communications via SMS/text message. By providing your phone number, or your opt-in in the case of the short code program, you are agreeing to be contacted via SMS/text message by or on behalf of Ostro at the number you have provided to receive such Digital Services Communications.

SMS/text messages that are Digital Services Communications may be sent using automated or nonautomated technology. With respect to such SMS/text message communications, (a) message and data rates may apply for any messages sent to you from us and to us from you; (b) if you have any questions about your text plan or data plan, it is best to contact your wireless provider; (c) message frequency may vary (but for the SMS short code program, you will receive one return message per text); and (d) neither carriers nor we are liable for delayed or undelivered messages.  If you are experiencing issues with any text messaging program or service that is part of the Digital Services please reply with the keyword HELP for further assistance, or you can receive help directly at support@ostrohealth.com. To stop receiving text messages text a reply to us with the word STOP. We may confirm your opt out by text message. For the short code program, we will confirm your opt-out by text message. If you subscribe to multiple types of text messages from us, we may unsubscribe you from the service that most recently sent you a message or respond to your STOP message by texting you a request to identify services you wish to stop.

Please note that by withdrawing your consent some Digital Services may no longer be available to you. Keep in mind that if you stop receiving text messages from us you may not receive important and helpful information and reminders about your services. Please refer to our Privacy Policy for further information about how we use your phone number, as well as information on how you may stop receiving communications and choices you may make about how we use and disclose your phone number and other information.

15. Consent to Receive Calls and Other Communications

In connection with the Digital Services you may have the opportunity to provide your phone number or email address, including so that you may interact with Navigators and/or other aspects of the Digital Services via phone call, email, chat, or other communication you and we designate. By providing your contact information, you are agreeing to be contacted by or on behalf of Ostro using the contact information that you have provided to receive Digital Services Communications, as such term is defined in the previous section. These Digital Services Communications may be sent using automated or nonautomated technology. If you wish to stop receiving Digital Services Communications, please follow the instructions included in the applicable communication. Please note that by withdrawing your consent some Digital Services may no longer be available to you. Please refer to our Privacy Policy for further information about how we use your phone number, email address, and other communication information, as well as information on how you may stop receiving communications and choices you may make about how we use and disclose your information.

16. Electronic Communications

When you use the Digital Services, or send e-mails, messages, and other communications from your desktop or mobile device to us, you are communicating with us electronically. You consent to receive communications from us 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. We may contact you by telephone, text or chat message, mail, or e-mail to verify your information. We may request further information from you and you agree to provide such further information to ensure that you have not fraudulently used the Digital Services. If you do not provide this information in the manner requested within 14 days of the request, or such other time period as communicated to you, we reserve the right to suspend, discontinue, or deny your access to and use of our Digital Services until you provide the information to us as requested.

17. Force Majeure

We will not be deemed to be in breach of these terms or liable for any breach of these Terms of Use or our Privacy Policy due to any event or occurrence beyond our reasonable control, including without limitation, acts of God, terrorism, war, malicious government action, invasion, failures of any public networks, electrical shortages, earthquakes or floods, civil disorder, pandemics, strikes, fire, or other disaster.

18. Indemnification

You agree to indemnify, and hold Ostro and its directors, officers, employees, and agents, and any of our or their affiliates, harmless from and against any and all rights, demands, losses, liabilities, damages, claims, causes of action, actions, and suits (no matter whether at law or equity), fees, costs, and attorney’s fees of any kind whatsoever arising directly or indirectly out of or in connection with your (or any person acting on your behalf or for whom you are responsible): (a) misuse of the Digital Services, including Content or Third Party Services available through or in connection therewith; (b) breach of the Terms of Use or Privacy Policy; (c) provision of content or subject matter to us directly or otherwise through the Digital Services, including User Information; or (d) negligent or wrongful act or omission in connection with the use or misuse of the Digital Services, including Content or Third Party Services available through or in connection therewith, including without limitation, infringement of third party intellectual property rights or privacy rights.

19. Revisions to these Terms of Use; General Provisions

We reserve the right, in our sole discretion, to terminate your access to all or part of these Digital Services, with or without cause, and with or without notice. Except as explicitly set forth in the Dispute Resolution section, in the event that any of the Terms of Use 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 Use shall otherwise remain in full force and effect. Our failure to exercise or enforce any of the Terms of Use shall not constitute a waiver of our right to exercise or enforce the Terms of Use as to the same or another instance. These Terms of Use constitute the entire agreement between us and you pertaining to the subject matter hereof. In our sole discretion, we may from time-to-time revise these Terms of Use by updating this posting, including the “Last Revised” date at the top of these Terms of Use. You should, therefore, periodically visit this page to review the current Terms of Use, so you are aware of any such revisions to which you are bound. Except as expressly stated herein, your continued use of the Digital Services after revisions to these Terms of Use shall constitute your agreement to the revised Terms of Use. Certain provisions of these Terms of Use may be superseded by expressly designated legal notices or terms located on particular pages within these Digital Services. You agree that we may assign the Terms of Use to any other entity of our choosing, with or without notice to you. You may not assign the Terms of Use to any other party for any reason without our prior written consent. You agree that, except as otherwise expressly provided in these Terms of Use, there shall be no third-party beneficiaries to these Terms of Use.

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Digital Services or the Terms of Use must be filed within one (1) year after such claim or cause of action arose or be forever barred. This statute of limitations provision does not apply to residents of New Jersey.

Any provision or section of these Terms of Service which by law or its nature should survive termination of your account, your access to the Digital Services, the availability of the Digital Services, or these Terms of Use, shall survive termination including, without limitation Sections 1, 2, 3, 4, 5, 12, 13, 17, 18, and 19.

The Terms of Use and the relationship between you and us shall be governed by the laws of the State of Delaware without regard to conflict of law provisions.

20. Ethical Conduct

We pride ourselves on ethically empowering people like you to navigate their health. If you see or suspect any unethical or illegal activity of any kind in connection with the Digital Services we would appreciate it if you would report it to us immediately so that we may promptly investigate. Please contact us at compliance@ostrohealth.com.