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Terms and Conditions of Use

Terms and Conditions of Use

Date of Last Revision: Jan 22, 2024

AMONG OTHER ACTIVITIES, BMI DOCTORS’ SERVICES ENABLE COORDINATION AND COMMUNICATION WITH A HEALTH CARE PROVIDER. IT DOES NOT REPLACE YOUR RELATIONSHIP WITH ANY PHYSICIAN.

THESE SERVICES MIGHT NOT BE APPROPRIATE FOR ALL MEDICAL CONDITIONS OR CONCERNS. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY OR MENTAL HEALTH CRISIS, CALL YOUR DOCTOR OR 911 IMMEDIATELY. DO NOT ACCESS THE SERVICES FOR EMERGENCY OR CRISIS CARE.

THIS AGREEMENT CONTAINS PROVISIONS THAT LIMIT OUR LIABILITY TO YOU AND REQUIRE YOU TO RESOLVE ANY DISPUTE WITH US THROUGH FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS, AND NOT BY A LAWSUIT OR RESORT TO COURT PROCESS. THIS MEANS THAT (I) YOU ARE GIVING UP, AND YOU WAIVE, THE RIGHT TO HAVE ANY SUCH DISPUTE DECIDED IN A COURT OF LAW BEFORE A JURY OR A JUDGE (EXCEPT AS SET FORTH EXPRESSLY IN SECTION 16), AND (II) THAT YOU ARE GIVING UP, AND YOU WAIVE, THE ABILITY TO PURSUE ANY SUCH DISPUTE IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION OR PROCEEDING. PLEASE SEE SECTIONS 6, 9, 10 AND 16 FOR MORE INFORMATION.

Introduction

BMI Doctors, Ocenture LLC (collectively, “BMI Doctors,” “we “, “us”, or “our”) own and operate the website located at BMIDoctors.com (collectively, the “Website”). We refer to the Website,, and other services provided by BMI Doctors as the “Services.” In these Terms of Use, the terms “you” and “yours” refer to the person using the Services.

These terms and conditions of use (“Terms of Use”) describe your rights and responsibilities with regard to the Services. Your access to and use of the Services is subject to these Terms of Use, our Privacy Policy, as well as all applicable laws and regulations. In using certain parts of the Services, you may be presented with additional or supplementary terms regarding the use of those specific Services, and you agree to review and be bound by such additional terms.

PLEASE READ THESE TERMS OF USE CAREFULLY BECAUSE THEY SET FORTH THE IMPORTANT TERMS YOU WILL NEED TO KNOW ABOUT THE SERVICES.

YOU UNDERSTAND THAT BY ACCESSING OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE LEGALLY BOUND BY AND COMPLY WITH THESE TERMS OF USE. IF YOU DO NOT OR CANNOT AGREE WITH ANY PART OF THESE TERMS OF USE, YOU MAY NOT USE THE SERVICES.

THE TERMS OF USE ARE SUBJECT TO CHANGE AS PROVIDED HEREIN.

These Terms of Use Contain the Following Sections:

Services Overview, Availability, and Eligibility
Telehealth and Pharmacy
Registration and Account Creation
Privacy
Ownership and License to Use the Services
User Content and BMI Doctors’s License to Use Such Content
Copyright Notices
Restrictions on Use
Disclaimer of Warranties
Limitation of Liability
Indemnification
Third-Party Links and Features on the Services
Changes to the Terms of Use and the Services
Payments
Termination
Governing Law; Dispute Resolution; Arbitration; Venue; Severability
Communications by Text Message and Email
Miscellaneous Terms
Contact Us
Additional Terms for Specific Products and Services

Availability

Our Services are currently only available to individuals located
in certain states.

1. Services Overview, Availability, and Eligibility

Overview of the Services. The Services may include (i) providing individuals with information on health care and wellness; (ii) providing individuals with pharmacy services; (iii) development and gathering of health care records and health care information with retention of the same for use in health care provider appointments, communications, and pharmacy services; (iv) administrative support in connection with scheduling, payment for health care provider services, and payment for pharmacy services; and (v) telecommunications support for using the Services as a means of direct access to a health care provider for communication, consultations, assessments, and treatment by such health care organizations and their providers.

Availability. Certain of our Services are currently only available to individuals located in certain states. You will be provided with notice of such limitations on availability of certain Services in your location when using those parts of the Services.

BMI Doctors is based in the United States. We provide the Services for use only by persons located in the United States. We make no claims or representations that the Services or any material included in the Services are accessible or appropriate outside of the United States. Access to the Services may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you do so at your own risk and you are solely responsible for compliance with local laws, including export laws as applicable.

Eligibility. Our Services are intended for use by you only if you are 18 years of age or over. To qualify to use the Services, the following must be true, and by accessing or using the Services, you represent and warrant that they are true:

You are age 18 or over or, if you are accessing the Services in violation of the Eligibility requirement related to age, you otherwise have the express consent of your parent or legal guardian.
You are located in a state where we operate (depending on the type of Services).
You agree to be legally bound by and comply with these Terms of Use.

You understand and agree that satisfying the above requirements does not guarantee that you will receive Services. In addition to the above
requirements, BMI Doctors and certain affiliated professional entities reserve the right to change or include new requirements as deemed appropriate in their sole discretion without providing prior notice to you.

To access or use the Services, you must have compatible devices, access to the Internet, and certain necessary software. Fees and charges may apply to your use of mobile services and to the Internet.

2. Telehealth and Pharmacy

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 diagnosis, treatment, follow-up and/or related patient education, and may include, but is not limited to:

Electronic transmission of medical records, photo images, personal health information, or other data between a patient and health care provider;
Interactions between a patient and health care provider via audio, video, and/or data communications; and
Use of output data from medical devices, sound, and video files.

The electronic systems used in the Services will incorporate network and software security protocols to protect the privacy and security of health information, and will include measures to safeguard your data to ensure its integrity against intentional or unintentional corruption or unlawful access. By accepting the Terms of Use, you agree and consent to BMI Doctors, the affiliated physicians, the health care providers contracted or employed by the affiliated physician practices, and any other health care organization(s) or provider(s) with whom we partner to provide the Services to you sending you disclosures, notices, messages, reports, and other communications either in writing or electronically including without limitation through your account or by email. It is your responsibility to monitor these communications. You acknowledge and agree that you will not hold us, any affiliated physician, any health care provider contracted or employed by an affiliated physician practice, or any health care organization(s) or provider(s) with whom we partner to offer the Services to you 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 these communications. Moreover, you acknowledge and agree that no means of electronic transmission can be guaranteed to be 100% secure. By accessing or using the Services, you agree to us transmitting health and other information to you electronically and that any information sent to or signed by you or us electronically shall be deemed equivalent to as if such information was provided or signed in writing.

Please see our Consent to Telehealth available at BMI Doctors.com/consent-to-telehealth for additional information about the risks and benefits of telehealth. The Consent to Telehealth is hereby incorporated into these Terms of Use by reference and constitutes a part of these Terms of Use. Please also see Section 20 below for additional terms applicable to the use of certain services and products on the Services.

Your Relationship with BMI Doctors. BMI Doctors does not provide any medical services, including via the Services. Rather, BMI Doctors provides a technology platform for you to access a health care provider who is employed or contracted with a BMI Doctors affiliated physician network and obtain access to additional information, which you may or may not choose to utilize in planning your health care and wellness. The health and wellness resources made available through our Services are for informational purposes only, and are not a substitute for direct in-person health care services in all cases; nor are they an indicator of specific results. The decision to focus on diagnosis, treatment recommendations, or both, rests with you and the health care provider. You understand that by coordinating and consulting with an affiliated physician or its health care providers through the Services, you are not entering into a provider-patient relationship with BMI Doctors.

Except for specific communications received from an affiliated physician practice or its health care providers, none of the information you receive through the Services should be considered medical advice.

No Insurance Accepted; Notice of Your Financial Responsibility. BMI Doctors and the affiliated physician networks do not accept commercial health insurance plans, are not in-network with any commercial health insurance plans, and are not enrolled with federal or state health care programs, such as Medicare and Medicaid. By choosing to use the Services, you are specifically choosing to obtain products and services on a cash-pay basis outside of any commercial health insurance plan or federal or state health care program. Thus, you are solely responsible for the costs of any services or products provided to you. If you are a federal health program beneficiary, you agree that neither you, BMI Doctors, the affiliated physician networks, or any of the health care organization(s) or provider(s) with whom we partner to provide health care and pharmacy services to you will submit a claim for reimbursement to any federal or state healthcare program for the costs of the services and products provided to you through the Services. Please also see Section 14 below for additional terms applicable to your payment obligations.

Pharmacy Services. If you receive a prescription as a result of your use of the Services, you will be assigned a pharmacy within our network to ship your prescription. You give us consent to send and disclose to the BMI Doctors Pharmacy Network or all information provided by you, health care records, and other applicable health care information and personal information (such as your name, location and demographic information) so that you may receive pharmacy services.

You acknowledge that your medication will not be shipped in child-resistant packaging and that you must keep it out of the reach of children.

3. Registration and Account Creation

Although certain parts of the Services are accessible without creating an account, you may be required to create an account to access and use certain parts of the Services. If you create an account, you agree to provide information that is accurate, complete and correct, and to accurately maintain and update any information about yourself that you have provided to BMI Doctors. If you do not maintain such information, or BMI Doctors has reasonable grounds to suspect as much, BMI Doctors has the right to suspend or terminate your account and your use of the Services. You agree to keep confidential your username and password and to exit from your account at the end of each session. You are responsible for all activities that occur under your account and for maintaining the confidentiality of your password. You also agree to immediately notify BMI Doctors of any unauthorized use of your username, password or any other breach of security that you become aware of involving or relating to the Services by emailing BMI Doctors at @BMI Doctors.com. BMI Doctors may take any and all actions it deems necessary or reasonable to maintain the security of the Services.

You are responsible for changing your password promptly if you think it has been compromised. You may not transfer or share your password with anyone, or create more than one account. You may not use anyone else’s account at any time. BMI Doctors explicitly disclaims liability for any and all losses and damages arising from your failure to comply with this section.

4. Privacy

BMI Doctors understands the importance of confidentiality and privacy regarding your health information. Please see our Privacy Policy available at BMI Doctors.com/privacy-policy for information about how we collect and use your information The Privacy Policy is hereby incorporated into these Terms of Use by reference and constitute a part of these Terms of Use.

5. Ownership and License to Use the Services

Ownership. As between BMI Doctors and you, BMI Doctors is the sole and exclusive owner of all right, title and interest in and to the Services and their content, features and functionality (including, without limitation, all information, software, text, displays, images, video, audio, design, selection, arrangement and look and feel) (“Services Content”). You are not permitted to reproduce, publish, distribute, modify, reverse engineer, disassemble, create derivative works of, publicly display, publicly perform, republish, download, store, transmit, sell or participate in any sale of, or exploit in any way, in whole or in part, any of the Services or Services Content except as permitted by these Terms of Use or otherwise by BMI Doctors expressly in writing. Any copy, modification, revision, enhancement, adaptation, translation, or derivative work of the Services or Services Content shall be owned solely and exclusively by BMI Doctors or its licensors, including all intellectual property rights therein. You may not access or use for any commercial purposes any part of the Services or Services Content.

Certain names, logos, and other materials displayed in and through the Services may constitute trademarks, trade names, service marks or logos (“Marks”) of BMI Doctors or its affiliates. You are not authorized to use any such Marks without the express written permission of BMI Doctors. Ownership of all such Marks and the goodwill associated therewith remains with us or our affiliates.

Your License. Subject to your compliance with these Terms of Use, we hereby grant to you a personal, limited, revocable, non-exclusive, and nontransferable right to view, download, access, and use the Services and Services Content solely for your personal and non-commercial use and only as permitted under these Terms of Use and the Privacy Policy. No other right, title, or interest in or to the Services or Services Content is transferred to you, and all rights not expressly granted are reserved by BMI Doctors or its
licensors.

6. User Content and BMI Doctors’s License to Use Such Content

Except as provided in our Privacy Policy; or information governed by applicable federal and state-specific privacy laws and regulations; you understand and agree that any information you provide through the Services, whether by direct entry, submission, email or otherwise, including, but not limited to, data, questions, comments, forum communications, or suggestions/feedback, will be treated as non-confidential and non-proprietary and will become the property of BMI Doctors and/or (i) the affiliated physician practices, or (ii) individual health providers utilizing the Services (“User Content”).

Except as provided in our Privacy Policy or subject to any applicable laws, User Content may be used by BMI Doctors for any purpose, including, without limitation, reproduction, solicitation, disclosure, transmission, publication, broadcast, and posting, and BMI Doctors shall be free to use such User Content for any purpose whatsoever, including, without limitation, developing and marketing products using such information, without any compensation owed to you. You hereby grant BMI Doctors, our service providers, our successors and assigns, our affiliated health care providers, and their affiliated physician practices , the fully transferable and sublicenseable right and license to use, reproduce, modify, analyze, perform, display, distribute, and otherwise disclose to third parties any data or information you submit on or through the Services for the purposes of providing Services to you; marketing Services to you; conducting research or analyses of such data; and designing, developing, implementing, modifying and/or improving new, current or future features, products and services of BMI Doctors using such data. You understand that any User Content you publish in public forums will be viewable and copyable by other users of the forum and potentially the public at large.

WITHOUT LIMITATION OF THE FOREGOING, BMI DOCTORS DOES NOT ASSUME RESPONSIBILITY OR LIABILITY FOR THE USER CONTENT FOUND IN ANY PUBLIC FORUM, NOR FOR ANY CLAIMS, DAMAGES OR LOSSES RESULTING FROM ANY USE OF ANY PUBLIC FORUM OR THE USER CONTENT CONTAINED THEREIN.

You acknowledge, consent, and agree that we may access, monitor, preserve, and disclose your information and/or any User Content you submit or make available for inclusion on the Services, if required to do so by law or in a good faith belief that such access, preservation, or disclosure is permitted by law or reasonably necessary or appropriate for any of the following reasons:
(1) to comply with legal process; (2) to enforce these Terms of Use, our Privacy Policy, or other contracts with you, including investigation of potential violations thereof; (3) to respond to claims that any content violates the rights of third parties; (4) to respond to your requests for customer service; and (5) to protect the rights, property, or personal safety of BMI Doctors, its agents and affiliates, its users, and the public. This includes exchanging information with other companies and organizations for fraud protection, and spam/malware prevention, and similar purposes.

7. Copyright Notices

BMI Doctors reserves the right to remove any content or any other material or information available on or through our Services, at any time, for any reason. BMI Doctors otherwise complies with the provisions of the Digital Millennium Copyright Act (“DMCA”) applicable to Internet service providers (17 U.S.C. § 512, as amended), and responds to clear notices of alleged copyright infringement. This section describes the procedure that should be followed to file a notification of alleged copyright infringement with BMI Doctors.

Notification of Claimed Copyright Infringement. If you have objections to copyrighted content or material made available on or through our Services, you may submit a notification to our Designated Agent at the following address:

Any notification to BMI Doctors under 17 U.S.C. § 512(c) alleging
copyright infringement must include all of the following information:

An electronic or physical signature of the person authorized to act on behalf of the owner of the exclusive right being infringed
An identification of the copyrighted work or other intellectual property that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works
An identification of the content or material that you claim is infringing and where it is located on our Services
Information sufficient for BMI Doctors to contact you, such as your address, telephone number, and/or email address
A statement by you that you have a good-faith belief that the use of the content or material of which you are complaining is not authorized by the copyright owner, its agent, or the law
A signed statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright owner or authorized to act on the copyright owner’s behalf

8. Restrictions on Use

You agree that in using or accessing the Services, you will not, and will not attempt to:

impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity
violate any local, state, national or international law (including export laws)
reverse engineer, disassemble, decompile, or translate any software or other components of the Services
distribute, input, upload, transmit, or otherwise run or propagate any virus, application, Trojan horse, or any other harmful computer code that could damage or alter a computer, portable device, computer network, communication network, data, or the Services, or any other system, device, or property
access or use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party
use any robot, spider, scraper, or other automated means to access the Services for any purpose without our express prior written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Services
license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services, Service Content, or User Content other than as expressly permitted herein
create or develop competing products or services or for any other purpose that is to BMI Doctors’s detriment or commercial disadvantage
damage, destroy, disrupt, disable, impair, overburden, interfere with, or otherwise impede or harm in any manner the Services, Service Content, or User Content, in whole or in part
use framing techniques to enclose any trademark, logo, or the Services without our express prior written consent
post, transmit or otherwise disseminate any content that, as we determine at our sole discretion: (i) is unlawful, harmful, harassing, fraudulent, threatening, abusive, libelous, defamatory, vulgar, obscene, hateful, violent, demeaning, intimidating, discriminatory, or racially, ethnically or otherwise objectionable, or infringes our or any third party’s intellectual property or other rights, (ii) is derogatory or harmful to our reputation, the reputation of our licensors, affiliated healthcare providers, affiliated healthcare practices, or any of our or their respective officers, members, employees, representatives, licensors and/or suppliers, in any way; (iii) may incite violence or other unlawful activity; or (iv) is harmful to children in any manner; or (iv) attempts to obtain the personal information of other users
harm, harass, threaten, abuse, defame, demean, discriminate against, or intimidate any affiliated health care provider who provides health care services related to the Services, as we determine in our sole discretion
disrupt, interfere with, violate the security of, or attempt to gain unauthorized access to the Services or any computer network
bypass, breach, avoid, remove, deactivate, impair, descramble, or otherwise circumvent any security device, protection, or technological measure implemented by BMI Doctors or any of our service providers to protect the Services
remove, delete, alter, or obscure any trademarks, specifications, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual
property or proprietary rights notices from the Services or any Service Content or User Content
use any manual process or automated device to monitor or copy any content made available on or through the Services for any unauthorized purpose except as permitted herein
to transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation
copy, duplicate, download, store in a retrieval system, publish, transmit or otherwise reproduce, transfer, distribute, store, disseminate, aggregate, use as a component of or as the basis for a database or otherwise use in any form or by any means any data, text, reports, or other materials related to BMI Doctors or third-party content from the Services
otherwise use the Services in any manner that exceeds the scope of use granted herein
encourage or enable any other individual to do any of the foregoing

9. Disclaimer of Warranties

YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BMI DOCTORS AND ITS AFFILIATES, INCLUDING WITHOUT LIMITATION ALL AFFILIATED PHYSICIAN NETWORKS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, PARTNERS, MEMBERS, EMPLOYEES, AND AGENTS (COLLECTIVELY “RELATED PERSONS”) MAKE NO REPRESENTATIONS OR WARRANTIES AND EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NONINFRINGEMENT, TITLE, AVAILABILITY, SECURITY, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, FREEDOM FROM VIRUSES OR MALWARE, COMPLETENESS, TIMELINESS, FUNCTIONALITY, RELIABILITY, SEQUENCING OR SPEED OF DELIVERY OR SYSTEM INTEGRATION. WE MAKE NO WARRANTIES OR REPRESENTATIONS THAT YOUR USE OF THE SERVICES WILL NOT INFRINGE THE RIGHTS OF THIRD PARTIES.

TO THE FULLEST EXTENT OF APPLICABLE LAW, NEITHER BMI DOCTORS NOR ITS RELATED PERSONS WILL BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE SERVICES. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS, TIMELINESS, RELIABILITY OR USEFULNESS OF THE SERVICES, SERVICES CONTENT, AND USER CONTENT. FURTHERMORE, BMI DOCTORS DOES NOT GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED, OR FREE FROM ERROR, DEFECT, LOSS, DELAY IN OPERATION, CORRUPTION, CYBER ATTACK, VIRUSES, INTERFERENCE, HACKING, MALWARE, OR OTHER SECURITY INTRUSION, AND BMI DOCTORS DISCLAIMS ANY LIABILITY RELATING THERETO.

YOU UNDERSTAND AND AGREE THAT ANY CONTENT, MATERIAL AND/OR INFORMATION OBTAINED THROUGH THE USE OF THE SERVICES ARE USED AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR MOBILE PHONE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH CONTENT, MATERIAL AND/OR INFORMATION, OR YOUR RELIANCE ON ANY SUCH CONTENT, MATERIAL, AND/OR INFORMATION.

10. Limitation of Liability

YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW AND EXCEPT AS SET FORTH IN THIS SECTION, IN NO EVENT WILL BMI DOCTORS, ITS RELATED PERSONS OR LICENSORS BE LIABLE TO YOU OR TO ANY PARTY FOR ANY CLAIMS, LIABILITIES, LOSSES, COSTS OR DAMAGES UNDER ANY LEGAL OR EQUITABLE THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), CONTRACT, WARRANTY, STATUTE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE OR DATA, SERVICE INTERRUPTION, COMPUTER OR MOBILE PHONE DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS, INCLUDING DEATH, ARISING OUT OF OR IN CONNECTION WITH ANY ACCESS, USE OF (OR INABILITY TO USE) THE SERVICES OR ANY SERVICES CONTENT, OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICES. THIS IS TRUE EVEN IF BMI DOCTORS OR RELATED PERSONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

IN NO EVENT SHALL BMI DOCTORS OR IT’S RELATED PERSONS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED IN THE AGGREGATE, THE GREATER OF (I) ONE HUNDRED DOLLARS ($100), OR (II) THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM.

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for damages such as in this section. Accordingly, some of these limitations may not apply to you. If you are a New Jersey resident, or a resident of another U.S. state that permits the exclusion of these warranties and liabilities, then the limitations in this section specifically do apply to you.

11. Indemnification

You agree to indemnify, defend, and hold harmless BMI Doctors, its affiliates, its affiliated health care networks, its subsidiaries, and all of their directors, officers, employees, contractors, licensors, suppliers, representatives, proprietors, partners, shareholders, principals, agents, predecessors, successors, assigns, accountants, and attorneys harmless from and against any and all third-party suits, actions, claims, proceedings, damages, settlements, judgments, injuries, liabilities, obligations, losses, risks, costs, and expenses (including, without limitation, reasonable attorneys’ fees, litigation expenses, and accounting fees), relating to or arising from, or alleged to arise from, (i) your use of the Services, or your use of the materials or features available on the Services, in an unauthorized manner, (ii) your fraud, violation of law, negligence, or willful misconduct, or (iii) any breach by you of these Terms of Use.

12. Third-Party Links and Features on the Services

The Services may contain hyperlinks, plug-ins, products, or features operated by third parties (“Third-Party Services”). Such Third-Party Services are not under our control, therefore, we are not responsible for the information, products or services described by, or for the content or features of any such Third-Party Services. We are providing these Third-Party Services to you only as a convenience, and the inclusion of any Third-Party Services does not necessarily imply endorsement of the Third-Party Services or any association with its operators. Your use of these Third-Party Services is at your own risk, and we are not liable to you in any way, either directly or indirectly, for any content, errors, damage or loss caused by or in connection with use of or reliance on information contained in or provided to Third-Party Services. You may have arrived to the Services through a Third-Party Service, and you understand and agree that we are not responsible for the information, products or services described on those Third-Party Services and only these Terms of Use will apply to your use of or access to the Services.

Moreover, we are not involved in any actual transaction between any user and another user or third party, nor are we the agent of either for any purpose. As such, we will not be involved in resolving any disputes between any user and another user or third party relating to or arising out of any transaction between such parties. We urge users and third parties to cooperate with one another to resolve any such disputes. In the event that you have a dispute with one or more other users or third parties through your use of the Services, you release BMI Doctors, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services.

13. Changes to the Terms of Use and the Services

The Services are continually under development, and BMI Doctors reserves the right to review or remove any part of these Terms of Use in its sole discretion at any time and without prior notice to you. You should check the Terms of Use from time to time when you use the Services to determine if any changes have been made. Any changes to these Terms of Use are effective upon posting to the Services, unless applicable law requires us to provide additional notice or take other actions before such changes can become effective. If you disagree with these Terms of Use, your sole and exclusive remedy is to discontinue your use of the Services. Your continued use after a change has been posted constitutes your acceptance of the changes.

You acknowledge and agree that: (1) all or any part of the Services may not be accessible at any time, for any period, or for any reason; and (2) BMI Doctors will not be liable if for any reason all or any part of the Services are unavailable at any time or for any period. BMI Doctors reserves the right at any time and for any reason to modify, or temporarily or permanently discontinue, the Services or any portion thereof, with or without notice. You agree that BMI Doctors shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services.

14. Payments

You agree to pay all fees due for services requested at the fees and pursuant to all payment terms presented to you when engaging in transactions. Prices are subject to change at any point in our sole discretion. You will see a prompt for your payment details, such as your credit card information and any promotional codes you may have. By entering your payment information and submitting your request, you authorize us, our affiliates, or our third-party payment processors to charge the amount due, including recurring fees associated with Subscription Services (as defined below).

You understand and agree that you are responsible for all fees due to receive health care services and pharmacy services, including any fees charged by the health care organization(s) or provider(s) that provide services to you in connection with the Services. Your payments to BMI Doctors may include fees charged by health care organization(s) or provider(s) for health care services and/or pharmacy services, which BMI Doctors collects on their behalf. Any health care services or pharmacy services not provided by us, an affiliated physician network, or a Pharmacy Network, or otherwise made available through the Services are not included in the payments collected by BMI Doctors and you may be separately charged by the applicable health care organization(s) and/or provider(s) for such services. In the event that your credit card expires or BMI Doctors, our affiliates, or our third-party payment processors are unable to process your payment, you may receive notice for you to provide an alternative payment method. BMI Doctors and/or the health care organization(s) and/or provider(s) have no obligation to provide any health care services or pharmacy services unless and until full payment has been received and/or verified. You are responsible for keeping your payment information (such as credit card number and billing address) accurate and up to date at all times.

Certain products or services offered on the Services may be offered on a subscription basis (“Subscription Services”). For Subscription Services, your payment method will be automatically charged at regular intervals as described during the checkout process for the applicable Subscription Services. You may cancel a subscription at any time before the cancelation cutoff date as indicated to you at the time you purchase a Subscription Service. You will also be informed about how you can cancel these
Subscription Services.

EXCEPT AS OTHERWISE SET FORTH IN ANY RETURN OR REFUND POLICY PROVIDED TO YOU ON THE SERVICES, YOU ACKNOWLEDGE AND AGREE THAT DUE TO THE NATURE OF THE PRODUCTS AND SERVICES PURCHASABLE THROUGH THE SERVICES ANY APPLICABLE FEES AND OTHER CHARGES ARE NOT REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED
CHARGES.

15. Termination

The Terms of Use will remain in full force and effect as long as you continue to access or use the Services. You may terminate the Terms of Use at any time by discontinuing use of the Services. Your permission to use the Services automatically terminates if you violate these Terms of Use.

BMI Doctors may terminate or suspend any of the rights granted by these Terms of Use and your access to and use of the Services with or without prior notice, for any reason, and at any time, including for violations of these Terms of Use. The following provisions survive the expiration or termination of these Terms of Use for any reason whatsoever: Disclaimer of Warranties; Limitation of Liability; Indemnification; Governing Law, Dispute Resolution, Arbitration, Venue, Severability of Provisions; No Waiver; and Assignment.

Subject to applicable law, BMI Doctors reserves the right to maintain, delete or destroy all communications and materials posted or uploaded to the Services pursuant to its internal record retention and/or content destruction policies. After such termination, BMI Doctors will have no further obligation to provide the Services, except to the extent an affiliated professional entity is obligated to provide you access to your health records or is required to provide you with continuing care under applicable legal, ethical and professional obligations to you. You agree that if your use of the Services is terminated pursuant to these Terms of Use, you will not attempt to use the Services in any way, and further agree that if you violate this restriction after such termination, you will indemnify and hold BMI Doctors harmless from any and all liability that BMI Doctors may incur therefore.

16. Governing Law; Dispute Resolution; Arbitration; Venue; Severability

IMPORTANT NOTE: PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND BMI DOCTORS TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM BMI DOCTORS. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS OF USE, YOU AND BMI DOCTORS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION.

Governing Law. These Terms of Use and your use of the Services shall be governed by the laws of the State of Delaware, without giving effect to the principles of conflict of laws. Subject to the requirement to arbitrate set forth in this Section 16, exclusive jurisdiction for all disputes that do not require arbitration will be the state and federal courts located in New York, New York, and you consent to the jurisdiction of those courts.

Binding Arbitration, Generally. Except as described in the “Exceptions” section below, you and BMI Doctors agree that every dispute arising in connection with these Terms of Use, the Services, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, regulation, ordinance, fraud, misrepresentation, common law, constitutional provision, respondent superior, agency or any other legal or equitable theory, regardless of whether a claim arises after the termination of these Terms of Use, and regardless of whether a claim arises before or after the effective date of these Terms of Use. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.

Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms of Use will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) file suit in a court of law to address an intellectual property infringement claim; or (c) seek injunctive relief in a court of law in a state or federal court in New York, New York.

Arbitrator. This arbitration agreement, and any arbitration between us, is subject to the Federal Arbitration Act and will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms of Use. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting BMI Doctors.

Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). BMI Doctors’s address for Notice is: BMI Doctors, Inc., [email protected] Attention: General Counsel. A copy of all Notices of Arbitration must also be sent to BMI Doctors via email to [email protected]. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or BMI Doctors may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, BMI Doctors will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if BMI Doctors has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and BMI Doctors may seek reimbursement for any fees paid to AAA.

Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your billing address unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. During the arbitration, the amount of any settlement offer made by you or BMI Doctors must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.

Arbitration Relief. Except as provided in the “No Class Actions” section below, the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. The arbitrator’s award shall be final and binding on all parties. Judgment on the award may be entered in any court having jurisdiction.

No Class Actions. YOU AND BMI DOCTORS 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 BMI Doctors agree otherwise in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR BMI DOCTORS WANTS TO ASSERT A DISPUTE AGAINST THE OTHER THAT IS SUBJECT TO ARBITRATION PURSUANT TO THESE TERMS OF USE, THEN YOU OR BMI DOCTORS MUST COMMENCE SUCH DISPUTE BY DELIVERY OF A NOTICE OF ARBITRATION WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES — OR IT WILL BE FOREVER BARRED.

Severability. All parts of these Terms of Use apply to the maximum extent permitted by law. BMI Doctors and you both agree that if we cannot enforce a part of this contract as written, then that part will be replaced with terms that most closely match the intent of the part we cannot enforce, to the extent permitted by law. The invalidity of part of these Terms of Use will not affect the validity and enforceability of the remaining provisions. The section headings are for convenience only and do not have any force or effect.

17. Communications by Text Message and Email

By opting-in to receive text (SMS) messages from BMI Doctors or by sending BMI Doctors an initial text message (an “SMS Enrollment”), you consent to receiving text messages regarding your BMI Doctors account and use of the Services. These text messages may include order confirmations, shipping notifications, messages from your healthcare provider, and other transactional messages, as well as promotional and marketing notifications, to the extent you have opted-in to receive such messages from BMI Doctors.

With your SMS Enrollment, you represent and understand that: (1) you are the owner or authorized user of the mobile device you used in order to initiate the SMS Enrollment, (2) you are authorized to approve any applicable charges in connection with the text messages you send to and receive from BMI Doctors, (3) you will be responsible for all messaging and other data charges that may apply for any text messages sent to you from BMI Doctors, or from BMI Doctors to you, and (4) neither BMI Doctors, nor your or BMI Doctors’s mobile carriers, will be liable for delayed or undelivered messages.

Note that access to the Services is not conditioned upon your consent to receive marketing or promotional text messages from BMI Doctors, and you can opt-out of any of BMI Doctors’s SMS services at any time by texting “STOP” to the message received, from the mobile device that is subscribed to receive the SMS messages. After you send the text message “STOP” to us, we may send you one final text message to confirm that you have been unsubscribed. If you have opted-in to receive more than one type of text message from BMI Doctors, you will need to opt-out of each BMI Doctors SMS service to which you are subscribed. Until you have done so, you may continue to receive the types of text messages from BMI Doctors that you have opted-in to receive but have not unsubscribed from.

You also understand that while BMI Doctors takes your privacy and the security of your health and other sensitive information very seriously, the transmission of information over the internet and mobile networks is not 100% secure. Text messages and emails that you send to or receive from BMI Doctors are not encrypted, which means that it is possible they may be intercepted by third parties. If you choose to send or receive information about your health or any other sensitive information by text message or email, you do so at your own risk. By initiating an SMS Enrollment, you consent to sending text messages to BMI Doctors, and receiving text messages from BMI Doctors, that are not encrypted. Likewise, by emailing BMI Doctors or giving BMI Doctors your email, you consent to receiving unencrypted emails messages from BMI Doctors.

If you are experiencing any issues with BMI Doctors’s text messaging or email services, or if you have any concerns about sending or receiving any sensitive information through text or email, please contact us directly at info@BMI Doctors.com. If you have questions specific to your text or data plan, please contact your wireless provider.

18. Miscellaneous Terms

No waiver. No waiver by BMI Doctors of any term or condition set forth in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure by BMI Doctors to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

No agency relationship. Neither these Terms of Use, nor any Services Content, materials or features of the Services create any partnership, joint venture, employment, or other agency relationship between us and you. You may not enter into any contract on our behalf or bind us in any way.

Remedies. You agree that any violation, or threatened violation, by you of these Terms of Use constitutes an unlawful and unfair business practice that will cause us irreparable and unquantifiable harm. You also agree that monetary damages would be inadequate for such harm and consent to our obtaining any injunctive or equitable relief that we deem necessary or appropriate. These remedies are in addition to any other remedies we may have at law or in equity.

Assignment. You may not assign any of your rights under these Terms of Use, and any such attempt will be null and void. BMI Doctors and its affiliates may, in their individual discretion, transfer, without further consent or notification, all contractual rights and obligations pursuant to these Terms of Use if some or all of the business of BMI Doctors is transferred to another entity by way of merger, sale of its assets, or otherwise.

Notice for California Users. If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” This release includes the criminal acts of others.

Headings. The heading references herein are for convenience purposes only, and shall not be deemed to limit or affect any of the provisions hereof.

Entire Agreement. This is the entire agreement between you and BMI Doctors relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter, excluding any other agreements that you may have entered into with BMI Doctors.

19. Contact Us

If you have any questions about these Terms of Use, please contact
us at: BMI Doctors, Inc. info@BMI Doctors.com

Physical Address:
Ocenture,
LLC
6440 Southpoint Parkway, Suite 300
Jacksonville, FL 32216

20. Additional Terms for Specific Products and Services

BMI Doctors Program Terms and Conditions

This section describes additional terms and conditions applicable to your participation in the BMI Doctors Program (“BMI Doctors Program”) offered through BMI Doctors and the affiliated professional entities that provide services on the BMI Doctors platform. The BMI Doctors Program is designed to provide access to routine and necessary services for weight loss with pharmacotherapy. The BMI Doctors program is a primary care offering not intended for use in emergencies or mental health crises, or by patients with specialized needs that should be treated by appropriate specialists. The BMI Doctors Program is a membership-based service through which eligible Members can obtain limited medical care at the discretion of the Member’s provider, including physician services for a recurring monthly payment. A Member’s provider may prescribe medication as appropriate, the cost of medication is included in the BMI Doctors Program Membership Fee. Medication is paid for the program and fulfilled through a partner pharmacy. The BMI Doctors Program is not health insurance or a substitute for health insurance, does not meet any individual health insurance mandate under federal or state law, and cannot replace your relationship with any specialty provider. You should keep your existing health insurance coverage while you are participating in the BMI Doctors Program or obtain health insurance coverage if you do not currently have it.

As a primary care offering, the BMI Doctors Program features medical care that is available during normal business hours, Monday through Friday, 9:00 a.m. Eastern Standard Time to 5:00 p.m. Eastern Standard Time, excluding holidays. Your provider will review messages within 48 hours or sooner. The BMI Doctors Program is not an emergency or on-call service available 24 hours a day, 7 days a week. The operating hours of the BMI Doctors Care Team (available to answer account or shipping-related questions by phone at (855) 592-7939 or by email at info@BMI Doctors.com) are Monday through Friday, 9:00 a.m. Eastern Standard Time to 5:00 p.m. Eastern Standard Time. In the case of an emergency or if you are otherwise in crisis, call 911 immediately.

Onboarding and diagnosis

In order to participate in the BMI Doctors Program, you must be evaluated by a health care provider on the BMI Doctors platform and, in the professional judgment of such provider, meet the clinical criteria for participation. To be evaluated for participation, you must complete an initial onboarding telehealth medical assessment (the “Diagnosis Online Visit”) with a doctor, and, they will determine that you are a good candidate for treatment through the BMI Doctors Program, he or she may initiate such treatment by writing you a prescription.

(the “BMI Doctors Membership Services”).

The BMI Doctors Program includes the cost of medication. BMI Doctors is cash pay only and does not accept insurance.

The BMI Doctors Membership Services may change from time to time. You will be given thirty (30) days’ notice of any such change. You may accept the revised BMI Doctors Membership Services by continuing in the BMI Doctors Program or reject them by terminating your BMI Doctors Program Membership.

Payment of BMI Doctors Program Membership Fee

You will have an opportunity to review and agree to the monthly cost of Membership (the “BMI Doctors Membership Fee”) during the checkout process. You may also view the costs associated with BMI Doctors Membership on the BMI Doctors Program webpage. Once you begin participation in the BMI Doctors program, your BMI Doctors Membership Fee will be charged to your payment card or PayPal account on file each month. You will be automatically billed on a recurring, monthly basis until your BMI Doctors Membership is canceled. The initial payment must be made the day your provider reviews your online visit. Once paid, your BMI Doctors Membership Fee is non-refundable. You may cancel your BMI Doctors Membership at any time by emailing info@BMI Doctors.com, calling our care team at (855) 592-7939, or logging into your Secure User account; see details on canceling below.

Your prescription will be filled at one of our partners’ pharmacy. Your BMI Doctors Program Membership Fee includes the cost of medication and pharmacy fulfillment.

Canceling your BMI Doctors Program Membership

To cancel your BMI Doctors Program membership, you may log into your Secure User account (click into the BMI Doctors Program and select “Cancel Subscription” from the Program Details page), call us at (855) 592-7939, or email us. Cancellation is effective in 36 hours.

Effect of BMI Doctors Program Membership cancellation

When you cancel, you will not be charged any additional monthly BMI Doctors Membership Fee payments. You will receive BMI Doctors Membership Services through the last day of the monthly billing cycle for which you have paid the BMI Doctors Membership Fee (the “Last Billing Cycle”). Thereafter, you will not be eligible to receive any BMI Doctors Program Membership Services, including prescriptions from your provider. We recommend you talk to your BMI Doctors-affiliated health care professional before discontinuing treatment as abruptly stopping certain medications for health conditions can impact your health. You may complete a new BMI Doctors Program Diagnosis Online Visit to talk to a healthcare professional about re-joining BMI Doctors Program.

No representation, warranty, or guarantee of continued availability of BMI Doctors Program

NEITHER BMI Doctors NOR THE AFFILIATED PROFESSIONAL ENTITIES MAKE ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES REGARDING THE CONTINUED AVAILABILITY OF THE BMI DOCTORS PROGRAM. THE BMI DOCTORS PROGRAM MAY BE DISCONTINUED AT ANY TIME AT THE SOLE DISCRETION OF BMI DOCTORS AND/OR THE AFFILIATED PROFESSIONAL ENTITIES. YOU WILL BE GIVEN 30 DAYS’ NOTICE OF ANY SUCH DISCONTINUATION SO THAT YOU MAY FIND A LOCAL PROVIDER WITH WHOM TO CONTINUE TREATMENT.