Effective Date: March 9, 2023
THE SERVICES ARE NOT INTENDED TO (AND DO NOT) CREATE ANY PATIENT RELATIONSHIP BETWEEN CLICK AND YOU, NOR SHOULD YOUR USE OF THE SERVICES BE CONSIDERED A REPLACEMENT FOR CONSULTATION WITH A HEALTH CARE PROFESSIONAL. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY SEEKING MEDICAL ADVICE BECAUSE OF SOMETHING YOU HAVE READ ON OR VIA THE SERVICES OR THE RESULTS YOU RECEIVE THROUGH THE SERVICES. IN ADDITION, YOU UNDERSTAND AND AGREE THAT IN PROVIDING THE SERVICES WE RELY ON A NUMBER OF THIRD PARTY PROVIDERS, INCLUDING FOR PURPOSES OF SENDING PUSH NOTIFICATIONS, AND HEREBY DISCLAIM ANY LIABILITY WITH RESPECT TO THE SERVICES PROVIDED BY SUCH PROVIDERS. YOU SHOULD NOT RELY ON THE SERVICES FOR ANY LIFE-THREATENING CONDITION OR ANY OTHER SITUATION WHERE TIMELY ADMINISTRATION OF MEDICATIONS OR OTHER TREATMENT IS CRITICAL.
We reserve the right, at our discretion, to modify, replace, update or change any of these Terms or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time and for any reason. Click shall not be liable to you for any such modification, replacement, suspension or discontinuation of your rights to access and use the Services. However, if we make any material changes to these Terms, we will update the LAST UPDATED date first set forth above, and we will notify you by e-mail, post a notice on our home page and/or alert you to such changes by other similar means. We may also impose limits on certain features of the Services or restrict your access to all or part of the Services without notice or liability. It is your responsibility to check these Terms periodically for changes. By continuing to use the Services, you agree to accept all such revisions, and any updated Terms.
1. Applicability of These Terms
Your access to, and use of the Services is expressly conditioned on your acceptance of and compliance with these Terms. These Terms apply to all users of the Services, including users who are also contributors of content, information, and other materials. If you do not agree with these Terms, you are not authorized to access or use any portion of the Services in any manner, for any purpose. In order to receive our Services, you must register for an Account as more fully described below in the section entitled “Your Account and Registration.” The Services are available only to individuals who are at least 18 years old. You represent and warrant that you have the legal ability (capacity) to enter into a binding contract and are at least 18 years old, that all registration information you submit is accurate and truthful. Click may, in its sole discretion, refuse to offer the Services to any person or entity and change our eligibility criteria at any time, for any reason.
2. Your Account and Registration
You may have to register and create an account (your “Account”) to use -the Services. When creating an Account, you represent and warrant that all information you provide to us is truthful and accurate. We reserve the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, false, or violates our Terms. You agree that you will create only one Account. You are responsible for maintaining the confidentiality of your Account password, and you agree to notify us if your password is lost, stolen, or disclosed to an unauthorized third party, or otherwise may have been compromised. You are responsible for activities that occur under your Account.
When creating an Account, you will be required to select a password and screen name (“Click User ID”). You shall not (a) select or use as a Click User ID a name of another person with the intent to impersonate that person; (b) use as a Click User ID a name subject to any rights of a person other than you without appropriate authorization; or (c) use as a Click User ID a name that is otherwise offensive, vulgar or obscene. Click reserves the right to refuse registration of, or cancel a Click User ID in its sole discretion. You shall never use another user’s Account without such other user’s express permission. You will immediately notify Click in writing of any unauthorized use of your Account, or other Account related security breach of which you become aware.
As a condition of using our Services, you will be required to provide Click with your email address and phone number as part of Account registration. As part of the Services, you will receive from us email and other communications (e.g., SMS messages and voice calls) relating to your use of our Services. By disclosing your contact information or otherwise sending electronic communications through the Services, you acknowledge and agree that we may send you communications through registered mail, email and other electronic communications, SMS messages, voice calls or otherwise, in each case that we determine, in our sole discretion, are related to your use of our Services. As part of using our Services you agree to receive all agreements, notices, disclosures and other communications that we provide to you in electronic form, and acknowledge that receipt of such documents in electronic form satisfies any legal requirement that such communications be in writing.
PLEASE NOTE THAT WHEN YOU CONTACT US BY EMAIL OR TEXT, SUCH COMMUNICATION MAY NOT BE SECURE BECAUSE IT TRAVELS OVER UNSECURE COMMUNICATION LINES. BY SENDING ANY CONFIDENTIAL OR PERSONAL INFORMATION TO US VIA EMAIL OR TEXT, OR AGREEING TO RECEIVE ELECTRONIC COMMUNICATIONS FROM US THROUGH EMAIL OR TEXT, YOU ACKNOWLEDGE AND ACCEPT ANY RISK AND DAMAGE ARISING FROM DISCLOSURE OF SUCH INFORMATION IN THE COURSE OF TRANSMISSION.
3. No Emergency Services
THE SERVICES ARE FOR NON-EMERGENCY PURPOSES ONLY. DO NOT ATTEMPT TO ACCESS EMERGENCY CARE THROUGH THE SERVICES. IF AT ANY TIME YOU ARE CONCERNED ABOUT YOUR CARE OR TREATMENT, OR IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911 OR GO TO THE NEAREST OPEN EMERGENCY ROOM. THE SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY OR TIME-CRITICAL CALLS OR COMMUNICATIONS TO ANY TYPE OF HOSPITAL, LAW ENFORCEMENT AGENCY, MEDICAL CARE UNIT, OR ANY OTHER KIND OF EMERGENCY OR TIME-CRITICAL SERVICE.
4. Privacy and your Personal Information
5. Rules and Conduct
As a condition of use, you agree not to use the Services for any purpose that is prohibited by these Terms or any applicable law, rule or regulation of a governmental authority (“Applicable Laws”). You shall not: (a) take any action that imposes or may impose (as determined by Click in its sole discretion) an unreasonable or disproportionately large load on Click’s (or its third party providers’) infrastructure; (b) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (c) bypass any measures Click may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (d) run Mail list, Listserv, any form of auto-responder or “spam” on the Services; or (e) use manual or automated software, devices, or other processes to “crawl” or “spider” any page or part of the Services.
You shall not (directly or indirectly): (a) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services; (b) modify, translate, or otherwise create derivative works of any part of the Services; or (c) copy, rent, lease, distribute, or otherwise transfer any or all of the rights that you receive hereunder. You shall abide by all Applicable Laws with respect to your use of the Services or your publishing of any User Submission (as defined below) in or on the Services. Click reserves the right to remove any User Submission or other content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such content or User Submission.
6. Fees and Payment
Click reserves the right to require payment of fees for certain features of the Services. Should you elect to subscribe to such features, you shall pay all applicable fees, as described on the Services in connection with such features. Click reserves the right to change its price list and to institute new charges at any time, upon prior notice to you, which may be sent by email or posted on the Services. Use of the Services by you following such notification constitutes your acceptance of any new or increased charges.
7. Third-Party Sites and Materials
CLICK HEREBY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY OF YOUR INFORMATION COLLECTED OR USED BY ANY THIRD PARTY SERVICE PROVIDER. IN ADDITION, YOU AGREE THAT CLICK WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY INFORMATION, SOFTWARE, MATERIALS OR SERVICES PROVIDED BY ANY THIRD PARTIES, INCLUDING WITHOUT LIMITATION ANY THIRD PARTY SERVICE PROVIDERS LINKED THROUGH THE SERVICES, AND YOU AGREE TO ASSUME ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES, LOSS, OR OTHER HARM, WHETHER TO YOU OR TO THIRD PARTIES, RESULTING FROM OR ALLEGED TO HAVE RESULTED FROM YOUR USE OF THIRD PARTY MATERIALS AND THIRD PARTY WEBSITES.
8. Click, Content, Intellectual Property
The Services and all content and material owned by Click, which are provided via the Services (the “Content”) are protected under United States and international intellectual property, copyright, trademark, patent, trade secret and other laws. The Services and the Content are the sole property of Click. You shall abide by all copyright notices, information, and restrictions contained in any Content accessed through the Services. You shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, create derivative works from, or otherwise exploit the Services or any Content or third party submissions or other proprietary rights not owned by you, (a) without the consent of the respective owners or other valid right, and (b) in any way that violates any third party right or is in violation of any Applicable Law.
You may, to the extent the Services expressly authorize you to do so, download or copy the Content, and other items displayed on the Services for download, for personal use only in accordance with these Terms, provided that you maintain all copyright, trademark and other notices contained in such Content. You shall not store any significant portion of any Content in any form. Copying or storing of any Content for other than personal, noncommercial use in accordance with these Terms is expressly prohibited without prior written permission from Click, or from the copyright holder identified in such Content’s copyright notice. You acknowledge that all Content accessed by you using the Services is at your own risk. All Content is provided “as is.” Under no circumstances will Click be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred in connection with use of or exposure to any Content posted, emailed, accessed, transmitted or otherwise made available via the Services. Subject to your compliance with these Terms you are granted a personal, nonexclusive, nontransferable, non-sublicenseable, revocable, limited right to use the Services. All rights in and to the Services not expressly granted in these Terms are hereby reserved and retained by Click.
Click Therapeutics, Clickotine, Clickometrics, Digital Therapeutics, the brain logo and any other trademarks or logos used by Click (the “Click Marks”) are trademarks or registered trademarks of Click Therapeutics, Inc. Other trademarks, service marks, graphics and logos appearing on the Services may be the property of third parties (the “Third Party Marks”). Neither your use of the Services nor these Terms grant you any right, title or interest in or to, or any license to reproduce or otherwise use, the Click Marks or any Third Party Marks.
9. User Submissions
The Services may provide you with the ability to create, upload, submit, disclose, distribute or otherwise post content, videos, audio clips, written forum comments, data, text, photographs, software, scripts, graphics, works of authorship or other information related to the Services, including without limitation any feedback or suggestions for improvements, enhancements, or error corrections (collectively, “User Submissions”). You represent and warrant to us that you have the legal right to post such User Submissions and that doing so will not violate any law or infringe upon or violate the rights of any person or entity. By posting User Submissions through the Services, you hereby grant us a perpetual, irrevocable, royalty-free fully transferable and sublicensable right and license to display, transmit, copy, distribute, use, perform, and create derivative works of such User Submission for any purposes. You understand that Click shall have the right to de-identify, reformat, excerpt, or translate any materials, content or information submitted by you. Click does not endorse and has no control over any User Submissions. Click cannot guarantee the authenticity of any data which users may provide about themselves.
Click has no obligation to monitor the Services or User Submissions. Click may remove any User Submission at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Submission), or for no reason at all. You understand that Click shall have the right, but not the obligation, to record or monitor for quality assurance and training purposes all telephonic, e-mail and other forms of communication. By accepting these Terms, you consent to any such recording or saving.
You represent and warrant that any User Submission provided by you: (i) will not infringe any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity; (ii) is not unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) does not constitute unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”); (iv) does not involve commercial activities and/or sales without Click’s prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) does not contain software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Click or any third party; (vi) does not impersonate any person or entity, including any employee or representative of Click; and (vii) does not violate any Applicable Law.
Click may terminate your access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information and User Submissions associated with your Account. Upon termination of your right to use our Services or our termination of the Services, all licenses and other rights granted to you by these Terms will immediately terminate.
If you wish to terminate your account, you may do so by following the instructions on the Services. Any fees paid hereunder are non-refundable. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
11. Warranty Disclaimer
Click has no special relationship with or fiduciary duty to you. THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY CONTENT) ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. CLICK, AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (A) THE SERVICES WILL BE ACCURATE, COMPLETE, SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS OR THE STATED PURPOSE. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You shall defend, indemnify, and hold harmless Click, its affiliates and each of its employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to: (a) your use or misuse of, or access to, the Services, Content or otherwise from your User Submissions; (b) your breach of these Terms; (c) your violation or alleged violation of any Applicable Law; or (d) infringement by you, or any third party using your Account, of any intellectual property or other right of any person or entity. Click reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Click in asserting any available defenses.
13. Limitation of Liability
IN NO EVENT SHALL CLICK, OR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY CONTENT): (A) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING); OR (B) FOR ANY DAMAGES IN EXCESS OF IN THE AGGREGATE TEN U.S. DOLLARS ($10.00). SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU IF YOU RESIDE IN SUCH A JURISDICTION.
WE ARE NOT LIABLE TO ANY PERSON OR USER FOR ANY HARM CAUSED BY THE NEGLIGENCE OR MISCONDUCT OF ANY LICENSED MEDICAL PROFESSIONAL OR ANY OTHER PARTY.
When using the Services, information will be transmitted over a medium which may be beyond the control and jurisdiction of Click, its customers and/or its vendors. Accordingly, Click assumes no liability for or relating to the delay, unintended disclosure, failure, interruption or corruption of any data or other information transmitted in connection with use of the Services.
Any claims against Click arising in connection with your use of the Services must be brought against Click within one (1) year of the date of the event giving rise to such action.
14. International Use
Accessing the Services is prohibited from territories where such Services are illegal. If you access the Services from other countries, you do so at your own initiative and are responsible for compliance with local laws.
15. Governing Law; Dispute Resolution
A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. These Terms shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules, and the United States of America. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by binding arbitration in Manhattan County, New York, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Comprehensive Arbitration Rules and Procedures of JAMS. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Southern District of New York or in a state court in the County of Manhattan, New York. Use of the Services is not authorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation, this Section.
16. Integration and Severability
Click shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Click’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). These Terms are personal to you, and are not assignable, transferable or sublicensable by you except with Click’s prior written consent. Click may assign, transfer or delegate any of its rights and obligations hereunder without consent. Our licensors may be entitled to enforce these Terms as third-party beneficiaries. There are no other third-party beneficiaries to these Terms. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
18. Digital Millennium Copyright Act Policy
If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want Click to delete, edit, or disable the material in question, you must provide Click with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Click to locate the material; (d) information reasonably sufficient to permit Click to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to Click’s designated agent at:Attn: Copyright Agent Click Therapeutics, Inc. 80 White Street New York, NY 10013
You may contact us at the following address: 80 White Street New York, NY 10013 or at firstname.lastname@example.org.