TERMS OF USE

Terms of Use

Version 2.0

Last Updated: May 22, 2021
Effective Date: December 27, 2018

PLEASE READ THESE TERMS OF USE (THE “TERMS”) CAREFULLY. THESE TERMS APPLY TO THIS WEBSITE, AS WELL AS ALL RELATED WEBSITES, APPLICATIONS, NETWORKS AND OTHER SERVICES PROVIDED BY RADISH HEALTH INC. (“RADISH”), ITS AFFILIATES OR AGENTS and on which a link to THE Terms is displayed (COLLECTIVELY, THE “SERVICES”). BY CLICKING ON THE BOX TO INDICATE YOUR ACCEPTANCE OF THE TERMS, OR USING THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS, (2) YOU ARE AT LEAST SIXTEEN (16) YEARS OLD, (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS, AND (4) IF YOU ARE UNDER EIGHTEEN (18) YEARS OLD (OR UNDER THE AGE OF MAJORITY WHERE YOU LIVE), YOU HAVE REVIEWED THE TERMS WITH YOUR PARENT OR LEGAL GUARDIAN AND HE OR SHE AGREES TO THE TERMS ON YOUR BEHALF AND TAKES FULL RESPONSIBILITY FOR YOUR COMPLIANCE WITH THE TERMS. If you are under 18 years of age (or under the age of majority where you live), you understand that you cannot later void the Terms with Radish as a minor without losing access to your Services, and your parents/legal guardians are responsible for your actions and any obligations you have incurred while enjoying the benefits of access to Services as if you were an adult. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.

PLEASE BE AWARE THAT SECTION 12 OF THE TERMS, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THE TERMS. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION.  UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.

THE SERVICES PROVIDED THROUGH RADISH ARE INTENDED FOR ONLY RESIDENTS OF THE STATE OF NEW YORK AND THE COMMONWEALTH OF PENNSYLVANIA WHO ARE 16 YEARS OR OLDER. IF YOU ARE NOT A RESIDENT OF NEW YORK OR PENNSYLVANIA AND/OR YOU ARE UNDER THE AGE OF 16 YOU WILL NOT BE PERMITTED TO USE THE SERVICES PROVIDED THROUGH THIS SITE.

Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be linked to from the Terms or will be presented to you for your acceptance when you sign up to use the supplemental features or Service.  All Supplemental Terms are incorporated into the Terms by reference.  If the Terms are inconsistent with the Supplemental Terms, the Supplemental Terms control with respect to such Service.

PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY RADISH IN ITS SOLE DISCRETION AT ANY TIME.  When changes are made, Radish will make a new copy of the Terms available through the Services.  We will also update the “Last Updated” date at the top of the Terms.  If we make any material changes, and you have previously used the Services, we may also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms.  Any changes to the Terms will be effective 30 days after posting notice of such changes on the Services for existing users. Radish may require you to provide consent to the updated Terms in a specified manner before further use of the Services is permitted.  If you do not agree to any change(s) after receiving a notice of such change(s), you must stop using the Services.  Otherwise, your continued use of the Services constitutes your acceptance of such change(s).  PLEASE REGULARLY CHECK THE SERVICES TO VIEW THE THEN-CURRENT TERMS.

  1. Overview of the Services.

    1.1
    Medical and Telehealth Services. Radish does not provide any medical services; rather Radish provides a technology platform for you to access an Alphabet City Medicine, P.C. health care provider to obtain certain medical services, including prescription refills through the Services (“Telehealth Services”).  No medical services other than the Telehealth Services are available from Alphabet City Medicine, P.C. through the Radish platform other than scheduling appointments and paying for onsite visits. A health care provider of Telehealth Services interacting with you through the Services may not have the benefit of information that would be obtained by examining you in person and observing your physical condition, in each instance.  Therefore, the health care provider may not be aware of facts or information that may affect his or her opinion regarding a potential diagnosis or treatment recommendation. To reduce the risk to you of this limitation, Radish strongly encourages you to provide all relevant information and discuss any and all diagnosis and treatment options with a health care provider.  Moreover, a health care provider utilizing Radish may be limited by state law in prescribing certain medications to you without first conducting an in-person physical examination. By deciding to engage the Services, including the Telehealth Services, you acknowledge and agree that you are aware of these limitations and agree to assume the risk of these limitations. Furthermore, you agree and accept that: (i) the Telehealth Services are not intended, in all cases, to replace a full medical evaluation or an in-person visit with a health care provider; (ii) a health care provider acting through the Services may not have important information that is usually obtained through a “hands-on” physical examination; and (iii) the absence of a physical examination may affect the health care provider’s ability to determine whether a particular drug is safe for you to take. IN THE EVENT OF A MEDICAL EMERGENCY, USERS SHOULD CALL 911 OR CONTACT THEIR PRIMARY HEALTH CARE PRACTITIONER. For more information regarding the Telehealth Services offered through the Services, please visit www.radish.health.

    1.2 Special Consent to Telehealth Services. Telemedicine involves the delivery of health care services using electronic communications, information technology, or other means between a health care provider and a patient who are not in the same physical location.  Telemedicine may be used for prescription refills and/or related patient education, and may include, but is not limited to:

    1. Electronic transmission of medical records, photo images, personal health information, or other data between a patient and health care provider;

    2. Interactions between a patient and health care provider via audio, video, and/or data communications; and

    3. The electronic systems used in the Services will incorporate network and software security protocols to protect the privacy and security of health information and imaging data, and will include measures to safeguard the data to ensure its integrity against intentional or unintentional corruption.

    4. Please see the Consent to Medical and Telehealth Care available at https://book.radish.health/consent for a description of the risks and benefits of medical services, including telemedicine.  If you do not accept and agree to be bound by the Consent to Medical and Telehealth Care, you are not authorized to access or otherwise receive the Telehealth Services.

    1.3 Your Relationship with Radish. You understand that by coordinating with an Alphabet City Medicine, P.C. health care provider you are not entering into a provider-patient relationship with By accepting the Terms, you agree and consent to Radish, Radish affiliates, or Alphabet City Medicine, P.C. health care providers sending you disclosures, notices, messages, reports, and other communications. It is your responsibility to monitor these communications. You acknowledge and agree that you will not hold Radish or any Radish affiliate liable for any loss, injury, or claim of any kind resulting from your failure to read these communications or for your failure to comply with any treatment recommendations contained in communications from Alphabet City Medicine, P.C or its health care providers. Except for specific communications received from Alphabet City Medicine, P.C. or its affiliated professional entities and their health care providers, none of the content you receive through the Services should be considered medical advice.

    1.4 Necessary Equipment and Software; Consent to Receive Calls and Text Messages. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.  By providing your cellphone number and using the Services, you hereby affirmatively consent to our use of your cellphone number for calls and texts in order to provide the Services. Radish will not assess and charge for any calls or texts, but standard message charges or other charged from your wireless carrier may apply.  You may opt out of receiving text messages from us by emailing help@radish.health.

    1.5 Limited License. Subject to your compliance with the Terms, Radish grants you permission to access and use our Services solely for your personal use.

    1.6 Certain Restrictions. As a condition of your use of the Services, you agree not to use the Services for any purpose that is prohibited by the Terms or by applicable law. The rights granted to you in the Terms are subject to the following restrictions: you may not (a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion thereof ,  (b) frame or utilize framing techniques to enclose any trademark, logo, or other portions of the Services (including images, text, page layout or form); (c) use any metatags or other “hidden text” using Radish’s name or trademarks; (d) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services; (f) access Services in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, copy, reproduce, distribute, republish, download, display, post or transmit any part of the Services in any form or by any means; and (h) remove or destroy any copyright notices or other proprietary markings contained on or in Services. In addition, you may not (and may not permit any third party) to either (y) take any action or (z) make available any User Content (as defined in Section 3) on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Radish’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Radish and other users; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by the Terms; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services. Any future release, update or other addition to Services is subject to the Terms, unless otherwise stated by Radish at the time such release, updated or addition is made available to you.  Radish, its suppliers and service providers reserve all rights not granted in the Terms.  Any unauthorized use of the Services terminates the licenses granted by Radish pursuant to the Terms.

    1.7 Third-Party Materials
    . As a part of the Services, you may have access to materials that are hosted by another party.  You agree that it is impossible for Radish to monitor such materials and that you access these materials at your own risk.

    1.8 Ownership. Excluding any User Content that you may provide (defined in Section 1 below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and its content are owned by Radish or Radish’s suppliers.  Neither these Terms (nor your access to the Service) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 1.5. Radish and its suppliers reserve all rights not granted in these Terms.  There are no implied licenses granted under these Terms. For clarity, any statistics and information regarding your use of the Services is separate from, and will not include or be deemed, User Content.

  2. PRIVACY. Our Privacy Policy located here: https://book.radish.health/pp. Please review the Privacy Policy to learn about:

    • What information we may collect about you;
    • What we use that information for; and
    • With whom we share that information.

    Additionally, please review the Alphabet City Medicine, P.C Notice of Privacy Practices located at www.radish.health/notice-of-privacy-practices to learn about how it uses and discloses your medical information and how you may access that information.

  3. User Content.

    3.1. User Content.
      “User Content” means any and all information and content that a user submits to, or uses in connection with, the Services.  You are solely responsible for your User Content.  You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others.  Except as may be required by the HIPAA or related state-specific privacy laws and regulations), Radish is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice.  You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.

    3.2. License You grant (and you represent and warrant that you have the right to grant) to Radish an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, and otherwise use your User Content, and to grant sublicenses of the foregoing rights, for the purposes of operating and providing the Services to you.  You irrevocably waive any claims and assertions of moral rights or attribution with respect to your User Content.

    3.3. Feedback Your submission of any ideas, suggestions, documents, and/or proposals to Radish through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and Radish has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.  You represent and warrant that you have all rights necessary to submit the Feedback.  You grant to Radish a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services.

    3.4. Investigations Radish may, but is not obligated to, monitor or review the Services and User Content at any time.  Without limiting the foregoing, Radish may, in its sole discretion, to remove any of your User Content for any reason (or no reason), including if such content violates the Terms or any applicable law.  Although Radish does not generally monitor user activity occurring in connection with the Services or User Content, if Radish becomes aware of any possible violations by you of any provision of the Terms, Radish reserves the right to investigate such violations, and Radish may, at its sole discretion, immediately terminate your license to use the Services, or change, alter or remove your User Content, in whole or in part, without prior notice to you.

  4. Third-Party Services. The Services may contain links and integrations to third-party websites, applications, services and application programming interfaces (collectively, “Third-Party Services”), such as Radish’s digital health partners, and are subject to the terms and conditions (including privacy policies) of each such Third-Party Service.  Such Third-Party Services are not under the control of Radish, and Radish is not responsible for any Third-Party Services.  Radish provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or their products or services.  Your use of the Third-Party Services is at your own risk.  You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

  5. Fees and Purchase Terms.

    5.1. Payment.  You will pay all fees or charges for use of the Radish platform and medical services, including Telehealth Services provided by Alphabet City Medical, P.C. and its health care providers through the Radish platform in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable.  You must provide Radish with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account (“Payment Provider”), or purchase order information as a condition to obtaining Telehealth Services.  Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not the Terms to determine your rights and liabilities.  By providing Radish with your credit card number or PayPal account and associated payment information, you agree that Radish is authorized to immediately charge you for all fees and charges due and payable to Radish and that no additional notice or consent is required.  You will immediately notify Radish of any change in your billing address or the credit card or PayPal account used for payment hereunder.  Radish reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Website or by e-mail delivery to you.

    5.2. Taxes.  The payments required under Section 5.1 of the Terms do not include any Sales Tax that may be due in connection with the Services provided under the Terms.  If Radish determines it has a legal obligation to collect a Sales Tax from you in connection with the Terms, Radish will collect such Sales Tax in addition to the payments required under Section 5.1 of the Terms.  If any Services, or payments for any Services, under the Terms are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Radish, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Radish for any liability or expense Radish may incur in connection with such Sales Taxes.  Upon Radish’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes.  For purposes of this section, “Sales Tax” means any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.

    5.3. Disputes Unless otherwise provided by the applicable payment processor or payment platform used in connection with your payment for Services, you must notify Radish in writing within 7 days after receiving your credit card statement if you dispute any of our charges on that statement or such dispute will be deemed waived.  Billing disputes should be notified to the following address: help@radish.health.

  6. Indemnification.  To the fullest extent permitted by law, you will indemnify and hold Radish, its parents, subsidiaries, affiliates (including without limitation Alphabet City Medicine, P.C and all other affiliated professional entities and their health care providers), officers, employees, agents, partners and licensors (collectively, the “Radish Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your User Content; (b) your violation of the Terms; (c) your violation of any rights of another party, including any users of the Services; or (d) your violation of any applicable laws, rules or regulations.  Radish reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Radish in asserting any available defenses.  This provision does not require you to indemnify any of the Radish Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this section will survive any termination of the Terms or your access to the Services.

  7. Disclaimer of Warranties and Conditions.

    7.1. As Is.
    YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY LAW, (A) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND (B) THE RADISH PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.

    1. THE RADISH PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.

    2. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.

    3. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. RADISH MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.

    4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM RADISH OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

    5. From time to time, Radish may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Radish’s sole discretion.  The provisions of this section apply with full force to such features or tools.

    7.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT THE RADISH PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE RADISH PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES ON THE SERVICES, USER CONTENT, OR THIRD PARTY SERVICES PROVIDED BY SUCH THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.

    7.3 Limitations. Notwithstanding the forgoing THE RADISH PARTIES do not disclaim any warranty or other right UNDER THIS SECTION 7 that THE RADISH PARTIES ARE prohibited from disclaiming under law.

  8. Limitation of Liability.

    8.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE RADISH PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT RADISH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, CONTENT, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (5) ANY OTHER MATTER RELATED TOTHE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.  THE FOREGOING CAP ON LIABILITY DOES NOT APPLY TO LIABILITY OF AN RADISH PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY AN RADISH PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A RADISH PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

    8.2. Cap on Liability.  UNDER NO CIRCUMSTANCES WILL THE RADISH PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO RADISH BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY AND (B) ONE HUNDRED DOLLARS ($100).  THE FOREGOING CAP ON LIABILITY DOES NOT APPLY TO LIABILITY OF AN RADISH PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY AN RADISH PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY AN RADISH PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

    8.3. User Content.  EXCEPT FOR RADISH’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN RADISH’S PRIVACY POLICY,  RADISH ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.

    8.4. Basis of the Bargain.  THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN RADISH AND YOU.

  9. Remedies

    9.1. Violations.  If Radish becomes aware of any possible violations by you of the Terms, Radish reserves the right to investigate such violations.  If, as a result of the investigation, Radish believes that criminal activity has occurred, Radish reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities.  Radish is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including your User Content, in Radish’s possession in connection with your use of the Services, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that your User Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Radish, its users or the public, and all enforcement or other government officials, as Radish in its sole discretion believes to be necessary or appropriate.

  10. Term and Termination.

    10.1. Term
    The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Terms.

    10.2. Prior Use Notwithstanding the foregoing, if you used the Services prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the Services (whichever is earlier) and will remain in full force and effect while you use the Services, unless earlier terminated in accordance with the Terms.

    10.3. Termination of Services by Radish.  If you have breached any provision of the Terms, or if Radish is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), Radish has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause are made in Radish’s sole discretion and that Radish will not be liable to you or any third party for any termination of your access to the Services.

    10.4. Termination of Services by You.  If you want to terminate the Services provided by Radish, you may do so by notifying Radish at any time. Your notice should be sent, in writing, to Radish's address set forth below.

    10.5. Effect of Termination Termination of any Service includes removal of access to such Service and barring of further use of the Service.  Termination of all Services also includes deletion of your files and content associated with you (or any part thereof), including your User Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of your User Content associated therewith from our live databases.  Radish will not have any liability whatsoever to you for any suspension or termination, including for deletion of your User Content.  All provisions of the Terms which by their nature should survive, will survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

    10.6. No Subsequent Access If your ability to access is discontinued by Radish due to your violation of any portion of the Terms or for otherwise inappropriate conduct, then you agree that you will not attempt to re-access the Services, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated.  In the event that you violate the immediately preceding sentence, Radish reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.

  11. International Users. The Website can be accessed from countries around the world and may contain references to Services and content that are not available in your country.  These references do not imply that Radish intends to announce such Services or content in your country.  The Services are controlled and offered by Radish from its facilities in the United States of America. Radish makes no representations that the Services are appropriate or available for use in other locations.  Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.

  12. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully.  It requires you to arbitrate disputes with Radish and limits the manner in which you can seek relief from us. 

    12.1.
    Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services, to any products sold or distributed through the Services, or to any aspect of your relationship with Radish, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Radish may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). 

    IF YOU AGREE TO ARBITRATION WITH RADISH, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST RADISH ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF.  INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST RADISH IN AN INDIVIDUAL ARBITRATION PROCEEDING.  IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.  YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THE TERMS, INCLUDING THIS ARBITRATION AGREEMENT.

    12.2. Arbitration Rules and Forum.  The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.  To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to help@radish.health  AND  Alphabet City Medicine, P.C., 33 Irving Place, Suite 9060, New York, NY 10003. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider.   Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, are subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims are subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/.  JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267.  If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.  If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Radish will pay them for you.  In addition, Radish will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.  Likewise, Radish will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.

    You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location.   Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

    12.3. Authority of Arbitrator.  The arbitrator, and not any federal, state or local court or agency has exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable.  The arbitration will decide the rights and liabilities, if any, of you and Radish.   The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator has the authority to grant motions dispositive of all or part of any claim. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Terms (including the Arbitration Agreement). The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have.  The award of the arbitrator is final and binding upon you and us.

    12.4. Waiver of Jury Trial.  YOU AND RADISH HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.  You and Radish are instead electing that all claims and disputes will be resolved by arbitration under this Arbitration Agreement, except as specified in Section 12.1 above.  An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would.   However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

    12.5. Waiver of Class or Consolidated Actions.  ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.  Notwithstanding anything to the contrary herein, (a) representative action for public injunctive relief may be arbitrated on a class basis and (b) in the event that the foregoing sentence is deemed invalid or unenforceable with respect to a particular class or dispute for recovery of damages, neither you nor we are entitled to arbitration and instead claims and disputes will be resolved in a court as set forth in Section 13.6.

    12.6. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Alphabet City Medicine, P.C., 33 Irving Place, Suite 9060, New York, NY 10003, or emailing us at: help@radish.health within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address and an unequivocal statement that you want to opt out of this Arbitration Agreement.    If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you.  Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

    12.7. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts will be of no force and effect and will be severed and the remainder of the Arbitration Agreement will continue in full force and effect.

    12.8. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Radish.

    12.9. Modification.  Notwithstanding any provision in this Agreement to the contrary, we agree that if Radish makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Radish.

  13. General Provisions.

    13.1. Electronic Communications.  The communications between you and Radish use electronic means, whether you visit the Services or send Radish e-mails, or whether Radish posts notices on the Services or communicates with you via e-mail.  For contractual purposes, you (1) consent to receive communications from Radish in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Radish provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights.

    13.2. Assignment.  The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Radish’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

    13.3. Force Majeure.  Radish is not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

    13.4. Questions, Complaints, Claims.  If you have any questions, complaints or claims with respect to the Services, please contact us at: help@radish.health. We will do our best to address your concerns.  If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

    13.5. Exclusive Venue.  To the extent the parties are permitted under this Arbitration Agreement to initiate litigation in a court, both you and Radish agree that all claims and disputes arising out of or relating to the Terms will be litigated exclusively in the state or federal courts located in New York.

    13.6. Governing Law.  THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF NEW YORK CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.  THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS.

    13.7. Notice Where Radish requires that you provide an e-mail address, you are responsible for providing Radish with your most current e-mail address.  In the event that the last e-mail address you provided to Radish is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Radish’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.  You may give notice to Radish at the following address: Alphabet City Medicine, P.C., 33 Irving Place, Suite 9060, New York, NY 10003. Such notice is deemed given when received by Radish by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

    13.8. Waiver Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

    13.9. Severability If any portion of the Terms is held invalid or unenforceable, that portion will be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions will remain in full force and effect.

    13.10. Export Control.  The Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Radish, or any products utilizing such data, in violation of the United States export laws or regulations.

    13.11. Entire Agreement.  The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

193638777 v8