Terms of Service for Upheal

Terms of Service
1. These Terms of Service (this “Agreement” or “Terms”) form an agreement between you (“you” or “Customer”) and Upheal Inc., a Delaware corporation (“Upheal”, “we,” or “us”). These terms concern the provision of Upheal's platform that enables providers in health services to conduct, store, analyze and manage sessions with their clients, utilising features such as an automatic transcript, summaries, and many others. You must read, agree to, acknowledge, and accept all of the terms and conditions contained in these Terms in order to use our website and all affiliated websites, including mobile websites, owned and operated by us, our predecessors or successors in interest, or our affiliates (collectively, the “Websites”), all services, applications, software, features and products that are accessible through or referenced on our Websites (“Platform”) that link to or reference these Terms (collectively the “Services”) whether provided by us or our affiliates. The materials contained in the Services are protected by applicable copyright and trademark law. Your use of the Services is subject to these Terms which may be updated from time to time.
2. By using the Services you agree to these Terms and to the other policies we post. Please read them carefully and let us know if you have any questions. For information about our data practices, please see our Privacy and Cookie Policy.
3. We may modify these Terms at any time and at our sole discretion. You must consent to any updated Terms before you continue using the Services following any update to these Terms. We invite you to check this page regularly for updates to these Terms.
Upheal Account
1. In order to use our Services, you have to create a user account on the Platform. When you create the account, you must provide us with accurate information, in good faith, and you agree to keep your information updated if it changes.
2. Your user account must specify all the Providers who will be provided with their individual profile and access to use the Services through your account (“Seats”). Every Seat may only be used by a single Provider. You, nor any Provider within your user account may share their Seat and/or their Seat information with any other persons. Any breach of this section would be considered a serious breach of these terms, and may lead, among others, to immediate termination of your account.
3. Both you and all your Providers with a Seat must be at least 18 years old or older, or of the age of majority in your local jurisdiction, whichever is higher, and be legally capable of forming a binding contract with us and licensed if providing services through the Platform. Using the Services in violation with this article is considered a material violation of these Terms.
4. You are responsible for any activity, whether or not authorised by you, conducted through your account and/or any of your Seats, including without limitation, all communications, transmissions, security and login information, and all obligations incurred through such access or use Please contact us immediately if you believe your account has been compromised.
5. You must not provide false account registration information or make unauthorised use of anyone else’s information.
6. We will send you information relating to your account (e.g. changes in password, confirmation messages, notifications) in electronic form only, for example via emails to your email address provided during registration.
Abusive Conduct
1. You are responsible for all activity on your account. If anyone violates our policies through your account or any of your Seats, we may terminate your account.
2. The Services may not be used for actions that are illegal, against good morals, or exploit the Services in a technical way. If anyone does act in this way through your account or or any of your Seats, we have the right to immediately terminate this Agreement with you, close your account and remove any of your content from the Platform.
Being a Customer
1. The Customer is a provider of mental health, coaching, or related health services. You represent and warrant that you are appropriately licensed to provide such services in accordance with applicable laws and regulations and that you will not use the Services if such use does not comply with applicable laws and regulations.
2. You may use the Platform for conducting, facilitating, recording, uploading, processing and managing sessions (“Sessions”) with your clients or patients (“Users”).
3. Before using the Services for the first time for a Session with a User, Upheal will prompt you to collect consent and methods to collect consent. Whether you collect the required consent in the Platform or through another method, each Session is recorded automatically. After the completion of the Session, by default the Session recording is deleted. However, the record can be maintained if you choose to do so in the Platform and you receive consent from the User.
4. You are solely responsible and confirm that you have received consent for receiving, using, processing, storage and disclosing of a User's personal data through the Services under these Terms, before you hold or upload such session to the Platform. For this purpose, your client has to agree to an appropriate privacy policy. You may either use our Client Privacy Policy, or you may use your own if it allows you to share the client's data with us.
5. We take no responsibility for the content or accuracy of any information or content generated as part of the Services (such as transcript, summary, etc.), including any AI generated content. You are responsible for reviewing, editing, and completing the relevant information and content.
6. For billing purposes, the maximum length of a Session is 100 minutes. You may exceed the limit, but any such continued and uninterrupted use shall be billed as a separate Session(s).
7. Regardless of the type of subscription, the maximum number of Sessions per Seat per month is 200, unless otherwise agreed in writing. We may suspend processing of any Sessions beyond this limit.
Fees
1. If your account usage exceeds our free plan or trial period, you can continue to access our Services through subscriptions defined on our Pricing site or any other agreed custom subscriptions (“Paid Subscriptions”). However, we may also offer some premium features which are not included within any of Paid Subscriptions.
2. You are responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by you to us hereunder, other than any taxes imposed on our income.
3. For the purposes of our monthly and yearly subscriptions, a month constitutes 30 calendar days and a year constitutes 365 calendar days.
4. Your Paid Subscription will automatically renew at the end of the applicable Paid Subscription period, unless you cancel your Paid Subscription before the end of the specified period. Refunds cannot be claimed for any partial subscription period. We reserve the right to change our fees in the future. In case of any change in the fees, we will notify you in advance.
5. We cooperate with Stripe, Inc. for the processing and settlement of fees (the “Payment Processor”). By accepting these Terms, you are also accepting and agreeing to be bound by the terms and conditions of the Payment Processor including the applicable tax rates on your monthly charges.
6. The Paid Subscription may also be offered through a third-party service or product. If you purchase a Paid Subscription through one or more of our partners, the purchase may be further subject to the partner’s terms and conditions. Payment and management of the purchase may also be administered by the third-party service.
7. We are not responsible for your internet access fees or mobile data usage (or other means of connecting) while you use our Services. We are not responsible for banking charges incurred from payments to use the Services.
Restrictions
1. You represent, warrant, and agree that you will not (by yourself or through a third party):
  - Use the Services to pursue any abusive conduct as outlined in Section 3 of these Terms;
  - Use the Services to pursue any illegal activities as defined by the law of any applicable jurisdiction;
  - Sell the Services to a third party without our explicit consent;
  - Modify or reverse engineer the Services;
  - Attempt to compromise the security of the Services and/or the Websites;
  - Impersonate another person; and
  - Give access to the Services to any third party or anyone in your organisation by using your login account credentials, without complying with all your obligations arising from Health Insurance Portability and Accountability Act 1996, in particular 45 CFR § 164.508, or without receiving disclosure authorization from your Users, in case such disclosure authorization is required.
2. We are making our best effort to implement industry standard security measures to our Services. You are responsible for keeping safe the data that you upload or collect by using the Services.
3. You are not allowed to use the Services within the territory (or in the interests of business conducted in the territory) of the Russian Federation.

Upheal’s Role
1. We proactively monitor the usage of Upheal to make sure you follow these Terms. We also investigate reports of potential violations.
2. In most cases, we will work with you to resolve any potential violations and allow you to continue using Upheal. Terminating accounts is not an action we take lightly and is done in only the most extreme cases.
3. We reserve the right to restrict or remove you from Services, including if they violate our Services policies as outlined in the section ‘Restrictions’. We also reserve the right to terminate your account on an individual basis, including but not limited to you being repeatedly reported by other customers or Users.
4. Please let us know if you notice any potential violations of these Terms.
5. We are constantly testing out new features with the goal of making Upheal better. We may add or remove features, and we often test features with a random subset of our community. If we believe a feature is significantly different from these Terms, then we explain those differences in the test. You acknowledge that we may change or deprecate the features of the Services.
Referrals
1. All Customers may be rewarded for bringing in new Customers who purchase a Paid Subscription (“New Customers”). New Customers must meet the current conditions of the active referral program (the “Referral Program”) found on our Website to be eligible.
2. After the New Customer purchases a Paid Subscription, the referring Customer will receive the referral reward under the current Referral Program (the “Referral Credit”). The Referral Program is subject to a reward limit (the “Reward Limit”). Once the Reward Limit is reached, pay out of Referral Credit is subject to delay at Upheal’s discretion to prevent misuse of the Referral Program.
3. The following limitations apply to the Referral Program:
  1. All New Customers must register into the current Referral Program for the referring Customer to be eligible for the Referral Credit;
  2. New Customers are limited to the first Paid Customer from a group practice;
  3. Subsequent Customers from the same organization will not be considered as New Customers;
  4. All Referral Credit is a final, non-transferrable and one-time payment.
4. Upheal reserves the right to change the terms of the Referral Program at any time and at its sole discretion.

Deleting an Account
1. If you wish to permanently delete your account please contact us at support@upheal.io. You can learn more about what information is deleted and what we continue to store after the account is deleted in our Privacy Policy.
2. We can terminate or suspend your account at any time at our discretion. We can also remove any descriptions, posts, or features at our discretion.
3. These Terms remain in effect even if you no longer have an account.
Support
1. You may contact our support system with any reasonable questions related to the Services (the "Customer Support").
2. We intend to provide our best efforts to respond to your questions within a reasonable time. We guarantee the specific time availability of Customer Support if agreed in a separate contract.
3. You will reasonably cooperate with Customer Support staff as needed to resolve your issue. Customer Support may access yours or your clients' data only to the extent necessary to resolve your questions.
Upheal’s Creations
1. Note that the materials displayed or available on the Services or through the Services, including text, graphics, data, articles, comments, and your submissions (the “Content”), are protected, whether registered or not as the copyright or other type of intellectual property (the “Intellectual Property”). You are responsible for all Content you contribute to the Services, and you represent and warrant you have all rights necessary to do so. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, publish, transmit, upload, display, licence, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including our’s) rights. You also acknowledge that all Services and Services-related Intellectual Property (i.e., all existing and future trademarks, service marks, domain names and business names, rights pertaining to inventions, designs, sample projects, databases, and proprietary information (including, without limitation, trade secrets and know-how), copyrights, moral rights and all other assets and benefits commonly regarded as Intellectual Property is our sole property of Upheal. You shall not acquire any right, title, or interest in the aforesaid Intellectual Property or otherwise in connection with the Services, except for the limited rights of use expressly set forth in the Terms. Any rights not expressly granted herein shall be deemed withheld.
2. The Services may only be used during the time that the Terms are in force between you and us and only in such a manner as necessary for using the Services for their intended purpose. You acknowledge that you have no right to have access to the Services’ source code.
3. You have no right to sub-license or assign the licence under these Terms and shall ensure that the Services do not become the subject of any charge or encumbrance without our prior explicit consent.
4. We respect others’ intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing and to terminate the accounts of repeat alleged infringers.
Indemnity
1. To the fullest extent allowed by applicable law, you agree to indemnify and hold us, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses, and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (the “Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Warranty Disclaimer
1. All Services are provided “as is” and without warranty of any kind. Any warranty of merchantability, fitness for a particular purpose, non-infringement, and any other warranty is excluded to the greatest extent permitted by law.
2. We back up all the data created on the Services on a regular basis. However, you acknowledge and agree that to the fullest extent permissible by applicable law, we shall not be responsible for any loss of data uploaded on or collected via the Services.
3. We accept no liability for any disruption or non-availability of the Services.
4. The disclaimers of warranty under this clause also apply to our subsidiaries, affiliates, and third-party service providers.
Limitation of Liability
1. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE, OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS WILL NOT BE LIABLE FOR (A) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER, OR (B) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, THE ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS, AND WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. TO THE EXTENT PERMITTED BY LAW, OUR LIABILITY FOR DAMAGES IS LIMITED TO THE AMOUNT OF MONEY WE HAVE EARNED THROUGH YOUR USE OF UPHEAL DURING 12 MONTHS PRECEDING THE CLAIM. WE ARE SPECIFICALLY NOT LIABLE FOR ANY LOST REVENUE, LOST PROFITS, OR LOSSES CAUSED BY CONFLICTING CONTRACTUAL AGREEMENTS.
2. We accept no liability for any disruption or non-availability of the Services.
3. We reserve the right to alter, suspend, or discontinue any part (or the whole of) the Services including, but not limited to, any products and/or features available.
4. We shall not be responsible for keeping any data or information accessible at all times, and the time period for which specific data or information is accessible is limited.
5. Upheal is not a medical device and does not provide diagnosis, prediction, prognosis, treatment recommendation, or any other medical advice or recommendation. In particular it doesn’t fall under Medical Devices Regulation (EU) 2017/745 or FD&C Act (US).
6. For this clause “we”, “our” or “Upheal” is defined to include our subsidiaries, affiliates, officers, directors, employees, agents, and third-party service providers.
Assignment
1. We may at any time assign this Agreement to a third Party, in which case such assignment will not result in deterioration of your rights. We will notify you about such assignment and the assignment will be effective as of your receipt of our notice.
Dispute Resolution and Governing law
1. These Terms shall be governed by and construed in accordance with the laws of the state of Delaware.
2. We encourage you to contact us in case of any issues. If a dispute does arise out of these Terms or related to your use of Upheal, and it cannot be resolved after you talk to us, then it must be resolved by competent courts. All disputes arising from these Terms shall be the exclusive jurisdiction of the competent courts of the state of Delaware.
Miscellaneous
1. These Terms and any referenced policies form the entire agreement between you and us and supersede all prior written or oral agreements. If any provision of these Terms is held to be unenforceable, such provision will be considered modified to the extent necessary to enforce it. If a provision cannot be modified, it is severed from these Terms, and all other provisions remain in force. If either party fails to enforce a right provided by these Terms, it does not waive the ability to enforce any rights in the future.
2. We may sometimes make changes to these Terms and other policies. If we make material changes that adversely affect your rights, then we will let you know before the changes come into effect. You must consent to any updated Terms before you continue using the Services following any update to these Terms.
3. If you have any questions or concerns regarding these Terms or other policies, please contact us at privacy@upheal.io

Effective: June 20, 2024

Health services providers, Group practices and organizations