FERNY TERMS AND CONDITIONS OF USE

Welcome to Ferny’s website (ferny.com) (the “Site”). The Site is provided as a service to our patients. Please review the following terms and conditions of use which govern your use of the Site (the “Agreement”).

YOUR USE OF THE SITE CONSTITUTES YOUR AGREEMENT TO FOLLOW AND BE BOUND BY THE AGREEMENT. WE RESERVE THE RIGHT TO UPDATE OR MODIFY THIS AGREEMENT AT ANY TIME WITHOUT PRIOR NOTICE. FOR THIS REASON, WE ENCOURAGE YOU TO REVIEW THE AGREEMENT WHENEVER YOU USE THE SITE. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT USE THE SITE.

Right to Change Site

We reserve the right, at any time in our sole discretion, to modify, suspend or discontinue the Site or any service, content, feature, or product offered through the Site, with or without notice and/or offer opportunities to some or all users of the Site, for any reason. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site, or any service, content, feature or product offered through the Site.

Site Content

Unless otherwise noted, the Site, and all features and materials on the Site, including text, images, illustrations, designs, icons, photographs, video clips, product names, and other content, and the copyrights, trademarks, trade dress and/or other intellectual property in such materials (collectively, the “Content”), are owned, controlled or licensed by Ferny.

The Site and the Content are intended solely for personal, non-commercial use. You may download or copy the Content and other downloadable materials displayed on the Site for your personal use only. No right, title or interest in any downloaded Content is transferred to you as a result of any such downloading or copying. You may not reproduce (except as noted above), publish, transmit, distribute, display, modify, create derivative works from, sell or exploit in any way any of the Content or the Site.

Unless otherwise specified, the Site and the Content are intended to promote Ferny’s products and services available in the United States. The Site is controlled and operated by Ferny from its offices located at [51 East 67th Street at Park Avenue, New York, NY 10021

THE SITE DOES NOT PROVIDE MEDICAL OR INSURANCE ADVICE.
The Content is for informational purposes only; it is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on the Site.

IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL 911 IMMEDIATELY AND REQUEST EMERGENCY ASSISTANCE. Reliance on any information provided by us, our employees, others appearing on the Site, or other visitors to the Site is solely at your own risk.

Registration

In order to access certain restricted portions of the Site, you may be required to register with Ferny. In doing so, you agree to provide and maintain true, accurate, and complete information about yourself. If you are under 13 years of age, you may not use or register to use the Site. If you are under the age of majority in the applicable jurisdiction, you may only use or register to use the Site with the consent of your parent or guardian.

You are solely responsible for all use of the Site under your User Name and Password and for maintaining the confidentiality of your User Name and Password. You agree not to hold Ferny liable for any damages of any kind resulting from your disclosure of your User Name and Password to any third party, including, but not limited to, entities that aggregate account information or website content, or persons who are or claim to be acting as your agent, proxy or advisor. If you inform Ferny or Ferny has reason to believe that the security of your account may be or has been compromised, we have the right to suspend or terminate your use of the Site or require that your Password be changed.

You agree to: (i) promptly notify Ferny of any actual or suspected unauthorized use of the Site, and (ii) ensure that you exit from your account at the end of each session.

Errors, Inaccuracies, and Omissions

Occasionally there may be information on our Site that contains typographical errors, inaccuracies, or omissions that may relate to our products or services. We reserve the right to correct any errors, inaccuracies or omissions and to change or update information if any information on the Site is inaccurate at any time without prior notice.

User Content

Ferny is pleased to hear from users and welcomes your comments regarding our products and services. However, if you send data, questions, comments, suggestions or other materials, whether online, by email, by postal mail, or otherwise (collectively, “User Content”), you agree that Ferny may, at any time, without restriction, edit, copy, publish, distribute, translate, and otherwise use in any medium any User Content that you forward to Ferny. Ferny is and shall be under no obligation:

(1) to maintain any User Content in confidence;
(2) to pay compensation for any User Content; or
(3) to respond to any User Content.

Ferny has the right but not the obligation to monitor and edit or remove any User Content. You agree that your User Content will not violate any right of any third party, including copyright, trademark, privacy or other personal or proprietary right. You further agree that your User Content will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of Ferny or third parties as to the origin of any User Content. You are solely responsible for any User Content you make and its accuracy. Ferny takes no responsibility and assumes no liability for any User Content posted by you or any third party.

Personal Information Submitted Through the Site

Your submission of personal information through the Site is governed by our Privacy Policy, which can be found at [<ferny.com/privacy-policy>]. This Agreement incorporates by reference the terms and conditions of the Privacy Policy.

Online Conduct

The Site is intended to be used only for lawful purposes. You are prohibited from posting on or transmitting through the Site any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, indecent, scandalous, profane, bigoted or hateful, libelous, racially, ethnically, or otherwise objectionable material of any kind, including but not limited to any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law. In addition, you may not engage in any activity on the Site that restricts or inhibits any other user from using or enjoying the Site by means of “hacking,” “cracking,” “spoofing,” or disabling or defacing any portion of the Site.

If Ferny is notified of allegedly defamatory, damaging, illegal, or offensive content provided by a user, Ferny may investigate the allegation and determine, at its sole discretion, whether to remove or request the removal of such content from the Site. Ferny may disclose any content or electronic communication of any kind: (i) to satisfy any law, regulation, or government request; (ii) if such disclosure is necessary or appropriate to operate the Site; or (iii) to protect the rights or property of Ferny, its users or third party service providers.

Ferny reserves the right to prohibit conduct, communication, or content that it deems, in its sole discretion, to be harmful to individual users or Ferny; any rights of Ferny or any third party; or to violate any applicable law. Notwithstanding the foregoing, neither Ferny nor its providers can ensure prompt removal of questionable content after online posting. Accordingly, neither Ferny nor its affiliates, nor any of their officers, directors, employees, or agents, nor providers shall assume liability for any action or inaction with respect to conduct, communication, or content on the Site.

Ferny may terminate your access, or suspend your access to all or part of the Site, without notice, for any conduct that Ferny, in its sole discretion, believes is in violation of any applicable law or is harmful to the interests of another user, a third-party provider, a service provider, or Ferny.

Prohibited Material

You may not post or transmit through the Site: advertising or commercial solicitations; software or other materials that contain so-called viruses, worms, time bombs, Trojan horses, or other harmful or disruptive components; political campaign materials; chain letters; mass mailings; spam mail; material protected by copyright, trademark or any other proprietary right; any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Site or the Content; or posts that express or imply that any statements you make are endorsed by Ferny. Additionally, you may not harvest or collect information about Site visitors without their express consent.

Monitoring

Ferny or its representatives have the right, but not the obligation, to monitor the Content of the Site to determine compliance with this Agreement. We retain our right to and with our sole discretion, edit, refuse to post or remove any material that we find to be in violation of these conditions or that is otherwise objectionable or offensive. This same discretion applies to our right of disclosure of any material submitted to the Site and circumstances surrounding its submission to any third party in order to operate the Site properly and to protect our sponsors, our visitors, and ourselves and to comply with our legal obligations and government requests.

Third Party Sites

The Site may contain links to other Websites. If you link to another Website, you will leave the Site and this Agreement will not apply to your use of, and activities on, those other Websites. We encourage you to read the legal notices posted on those other Websites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, those Websites.

You acknowledge and agree that we have no responsibility for the accuracy or availability of information provided by Websites to which you may link from the Site (“Linked Sites”). Links to Linked Sites do not constitute an endorsement by or association with us of such Linked Sites or the content, products, advertising or other materials presented on such Linked Sites. We do not author, edit, or monitor these Linked Sites. You acknowledge and agree that we are not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on such Linked Sites.

Indemnification

You agree to defend, indemnify, and hold harmless Ferny, its affiliates, third party service providers, and their respective directors, officers, employees, owners, licensors, licensees, and agents from and against all claims, damages, losses, costs and expenses, including reasonable attorneys’ fees, arising out of a breach of this Agreement by you and/or your activities in connection with the Site or any services related to the Site. We may participate in the defense of any claim. You shall not settle any claim that affects Ferny without our prior written approval.

Disclaimer

TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE SITE IS PROVIDED BY FERNY ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, FERNY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE, OR THE INFORMATION, CONTENT, MATERIALS OR PRODUCTS INCLUDED ON THE SITE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, FERNY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOU ACKNOWLEDGE, BY YOUR USE OF THE SITE, THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THIS DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.

TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, FERNY WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SITE, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL PUNITIVE AND CONSEQUENTIAL DAMAGES.

TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, FERNY, ITS AFFILIATES, AND AGENTS ASSUME NO RESPONSIBILITY FOR ANY CONSEQUENCE RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION YOU TAKE BASED ON THE CONTENT, INFORMATION OR OTHER MATERIALS LOCATED ON THE SITE.

TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, YOU UNDERSTAND AND AGREE THAT FERNY IS NOT RESPONSIBLE OR LIABLE FOR ANY TRANSACTION BETWEEN YOU AND THIRD PARTY PROVIDERS OF THIRD PARTY APPLICATIONS OR PRODUCTS OR SERVICES ADVERTISED ON OR THROUGH THE SITE. AS WITH ANY PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, NO ADVICE OR INFORMATION WHETHER ORAL OR IN WRITING OBTAINED BY YOU FROM FERNY SHALL CREATE ANY WARRANTY ON BEHALF OF FERNY IN THIS REGARD. SOME ASPECTS OF THIS SECTION MAY NOT APPLY IN SOME JURISDICTIONS IF PROHIBITED BY APPLICABLE LAW.

TO THE EXTENT APPLICABLE, NOTHING SET FORTH IN THIS SECTION AFFECTS YOUR STATUTORY RIGHTS AS A CONSUMER.

Limitation of Liability

TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, SHALL FERNY OR ANY OF ITS AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, VENDORS OR SUPPLIERS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY NATURE ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SITE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF AN AUTHORIZED REPRESENTATIVE OF FERNY HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. SUBJECT TO THE FOREGOING, IN NO EVENT WILL FERNY BE LIABLE FOR ANY DAMAGES IN EXCESS OF ANY FEES PAID BY YOU IN CONNECTION WITH YOUR USE OF THE SITE DURING THE SIX MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE.

Nothing in the Agreement removes or limits Ferny’s liability for fraud, fraudulent misrepresentation, death or personal injury caused by its gross negligence, and, if required by applicable law, negligence. Some aspects of this section may not apply in some jurisdictions if prohibited by applicable law.

Severability

The provisions of this Agreement are intended to be severable. If for any reason any provision of this Agreement shall be held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction.

Applicable Law

This Agreement is governed by and shall be construed in accordance with the laws of the State of New York, the principal place of business of Ferny, without giving effect to any principles of conflicts of law. You agree to bring any claims against Ferny exclusively in the state and federal courts having jurisdiction in the State of New York.

Class Action Waiver

WHERE PERMITTED UNDER THE APPLICABLE LAW, YOU AND FERNY 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 ACTION. Unless both you and Ferny agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.

Contact us

If you have any questions concerning the Site or the Agreement, please contact us by visiting the Contact Us section of the Site.

If you are a California resident, you may have the Agreement mailed to you electronically by sending a letter to Ferny, Attn: General Counsel, _____________ with your email address and a request for the Agreement. In addition, 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 1-800-952-5210 in order to resolve a complaint regarding the Site.

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