OPEN PATH PSYCHOTHERAPY COLLECTIVE
TERMS OF SERVICE
The following terms and conditions constitute an agreement between you and Open Path Psychotherapy Collective, (“OPPC,” “we,” or “us”), the operator of Openpathcollective.org (the “Site”). These Terms of Service (the “Terms of Service”) govern your use of the Site, both as a casual visitor and as a registered user.
By accessing, browsing or using our Website, you become a “Visitor”. Your accessing, browsing or using this Website constitutes your agreement to all terms, conditions, and notices, and any changes to the Terms of Service made by OPPC.
In order to access certain aspects of the Website or perform certain functions you will have to sign up and become a “Member” of our Website. As part of the registration process for Membership you will be asked to review those portions of the Terms of Service intended for Members and asked to confirm your assent to them. By clicking “submit”, you confirm that you have read these Terms of Service, that you understand them, and that you agree to be bound by them.
Finally, these Terms and Conditions contain a binding arbitration clause and class action waiver at section 23 that impact your rights about how to resolve disputes. Please read carefully.
About the Site
We Do Not Provide Medical/Mental Health Advice
The Information that you obtain or receive from OPPC and its employees, contractors, partners, sponsors, advertisers, licensors or otherwise on the Site is for informational and scheduling purposes only. THE INFORMATION PROVIDED ON THE SITE IS NOT INTENDED AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MENTAL HEALTH ADVICE, DIAGNOSIS, OR TREATMENT. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MENTAL HEALTH ADVICE FROM A QUALIFIED HEALTH CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE SITE. DO NOT USE THE SITE FOR EMERGENCY MENTAL HEALTH NEEDS. IF YOU BELIEVE THAT YOU ARE EXPERIENCING A MENTAL HEALTH EMERGENCY CALL 911. YOUR USE OF INFORMATION PROVIDED ON THE SITE IS SOLELY AT YOUR OWN RISK. NOTHING STATED OR POSTED ON THE SITE OR AVAILABLE THROUGH ANY SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MENTAL HEALTH CARE OR THE PROVISION OF MENTAL HEALTH CARE. We do not recommend or endorse any specific tests, mental health professionals, procedures, opinions, or other information that may appear on the Site. If you rely on any of the Information provided by the Site, you do so solely at your own risk.
No Doctor/Mental Health Professional Patient Relationship
NO LICENSED MENTAL HEALTH PROFESSIONAL/PATIENT RELATIONSHIP IS CREATED BY USING INFORMATION PROVIDED BY OR THROUGH THE USE OF THE SITE INCLUDING, BUT NOT LIMITED TO, THE FIND A CLINICIAN FEATURE, LINKS TO OTHER SITES OR ANY ASSISTANCE WE MAY PROVIDE TO HELP YOU FIND AN APPROPRIATE MENTAL HEALTH PROFESSIONAL OR SPECIALIST IN ANY FIELD. WE MAKE NO GUARANTEES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO PROFESSIONAL QUALIFICATIONS, EXPERTISE, QUALITY OF WORK OR OTHER INFORMATION HEREIN. FURTHER WE DO NOT IN ANY WAY ENDORSE ANY INDIVIDUAL DESCRIBED HEREIN. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON SUCH INFORMATION.
We have no control over, and cannot guarantee the availability of any Provider at any particular time. We are not a party to the dealings between You and any Provider, including posts, email, phone, text message, or other communication, proposals, screening, selection, contracting, and provision of Provider Services. We do not introduce You to Clinicians or Clinicians to You. We merely make the Site available to enable You to identify and determine the suitability of a Provider for yourself and to enable Providers to identify and determine the suitability of patients for their practice. OPPC does not direct, has no control over, makes no representations, and does not guarantee the quality, safety, timeliness, or legality of Provider services; the truth or accuracy of engagement requests, listings and profiles; the qualifications, background, or identities of Members; the ability of Providers to deliver services; Your ability to pay for Provider services; or that You and a Provider can or will complete a transaction, appointment, or engagement.
We will not be liable for cancelled or otherwise unfulfilled appointments or any injury resulting therefrom, or for any other injury resulting from the use of the Site or Services whatsoever. You are strongly advised to perform your own investigation prior to selecting a mental health care professional by making confirming telephone calls to the appropriate licensing authorities to verify listed credentials and education, and to further verify information about a particular mental health professional by confirming with the practitioner’s office, your current mental health therapist, and/or the state mental health licensing board.
Authorization and Acknowledgement
In connection with using the Site and the Services to locate and schedule appointments with mental health professionals, you understand that: • OPPC selects mental health professionals to be featured on the Site based on a pre-existing contractual agreement with those professionals. • OPPC will provide you with a list of mental health professionals who may be suitable to deliver the mental health care that you are seeking based solely on the information that you provide to OPPC (proximity to your geographical location and additional criteria that you specify) (Please see Section 3 above regarding us having no role in a relationship between You and a Provider and not making any endorsement of any Provider); you are ultimately responsible for choosing your own mental health professional. See Open Path Client Information for more information on membership fees and conditions.
We make the Site available as a service to consumers and health care professionals for the purposes of providing an informative and educational resource. We may, but have no obligation to, have nonuser-posted information reviewed by the Site’s editorial personnel. It is important to note, however, that the timeliness and accuracy of any or all of the Information is not guaranteed. Neither the authors, the editorial personnel, nor any other party who has been involved in the preparation or publication of this work can assure you that the Information contained herein is in every respect accurate or complete, and they are not responsible for any errors or omissions or for the results obtained from the use of such information. You are encouraged to independently confirm the Information contained herein with other sources and to seek the advice of a qualified mental health professional. PRACTITIONER INFORMATION: Provider and practice information found on the Site is intended for general reference purposes only. Clinician and other health provider information found on the Site is both self-reported, by the Clinician and/or office staff, and collected from multiple other data sources that may not be confirmed by the Provider. Such information often changes frequently and may become out of date or inaccurate. Neither the Site nor OPPC provides any advice or qualification certification about any particular Provider. Our relationship with sponsors or Providers in a particular area is based on criteria we establish. You are encouraged to independently verify any such information. PROCEDURES/PRODUCTS/SERVICES: The procedures, products, services and devices discussed and/or advertised within the Site are not applicable to all individuals, patients or all clinical situations. We make no claims as to the effectiveness of any such therapies, products, and services. Any products and/or services represented on the Site by advertisers, sponsors, and other Site participants, either paid or unpaid, are presented for your awareness and do not necessarily imply appropriateness for any particular individual or prediction of effectiveness, outcome or success.
User must complete the registration process by providing us with current, complete and accurate information as prompted by the applicable registration form. User may be asked to choose a password and a User name. User is entirely responsible for maintaining the confidentiality of User’s password and account. Furthermore, User is entirely responsible for any and all activities that occur under User’s account. User agrees to notify OPPC immediately of any unauthorized use of User’s account or any other breach of security. You may notify us by sending an email to firstname.lastname@example.org. OPPC will not be liable for any loss that User may incur as a result of someone else using User’s password or account, either with or without User’s knowledge. However, User could be held liable for losses incurred by OPPC or another party due to someone else using User’s account or password. User may not use anyone else’s account at any time, without the permission of the account holder.
As part of the registration process, you will provide an e-mail address and create a password. These are your credentials for accessing the Services that are only available to members (“Credentials”). You should keep your Credentials private and not share your Credentials with anyone else.
Your Personal Information & Medical/Health Information
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) protects the secrecy of protected health information regarding individuals. This protected information generally includes individually identifiable health information. This is information created or received by a health care provider, health plan, employer, or health care clearing house, relating to past, present, or future health conditions or care, and identifying the individual it relates to.
HIPAA requires covered entities to maintain the secrecy of this protected health information. Protected health information is defined in HIPAA.
OPPC AND THE SITE ARE NOT COVERED ENTITIES AND ARE NOT SUBJECT TO HIPAA PRIVACY RULES. We enable patients and Clinicians to connect with each other, but are not a health care company.
Any health information shared on the Site or with a Clinician is a matter of YOUR choice and YOURS alone. We will never request that You provide individually identifiable health information to any party through any means on the Site. However, when you choose to communicate with a Clinician through our Site that Clinician will be able to see your name.
We also ask that You exercise discretion and care in the determination to share health information and selection of health information to share on the Site, with other Members or Users, and with Clinicians.
BY USING THE SITE YOU ACKNOWLEDGE AND AGREE THAT ANY HEALTH INFORMATION YOU CHOSE TO SHARE IS AT YOUR DISCRETION AND AT YOUR OWN RISK.
You are responsible for all use of the Site and for all use of your Credentials, including use by others to whom you have given your Credentials. You may use the Site and the Services for lawful, non-commercial purposes only. You may not use the Site in any manner that could damage, disable, overburden, or impair our servers or networks, or interfere with any other party’s use and enjoyment of the Site or the Services. You may not attempt to gain unauthorized access to any of the Services, user accounts, or computer systems or networks, through hacking, password mining or any other means. Without limiting any of the foregoing, you agree that you shall not (and you agree not to allow any third party to): • copy, modify, adapt, translate, or reverse engineer any portion of the Site, its content or materials and/or the Services; • remove any copyright, trademark or other proprietary rights notices contained in or on the Site and/or the Services or in or on any content or other material obtained via the Site and/or the Services; • use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve or index any portion of the Site and/or the Services; • access, retrieve or index any portion of the Site and/or the Services for purposes of constructing or populating a searchable database of reviews related to the health care industry or medical clinicians; • reformat or frame any portion of the web pages that are part of the Site and/or the Services; • create user accounts by automated means or under false or fraudulent pretenses; or • collect or store personal data about other users in connection with the prohibited activities described in this paragraph. In addition to our rights in these Terms of Service, we may take any legal action and implement any technical remedies to prevent the violation of this provision and to enforce these Terms of Service.
Changes to These Terms of Service
We may change these Terms of Service at any time, as we reasonably deem appropriate. Upon any change in these Terms of Service, we will post the amended agreement on the Site with notice of the changes. Your continued use of the Site and/or the Services following such notification shall constitute your affirmative acknowledgement of the Terms of Service, the modification and agreement to abide and be bound by the Terms of Service, as amended. If at any time you choose not to accept these Terms of Service, including following receipt of notification of any modifications hereto, then please do not use the Site.
Changes to the Services
We may from time to time add new services to the Services, substitute a new service for one of the existing Services, or discontinue or suspend one of the existing Services. Information about the new services will be included on the Site, and the users of new services will be governed by these Terms of Service. You agree that OPPC will not be liable to you or any third party for any suspension or discontinuation of any of the Services.
Links to Other Sites
The Site may include links to other websites or frame information from other websites, including links provided as automated search results. Some of these sites may contain materials that are objectionable, unlawful, or inaccurate. These links are provided for your convenience only and do not mean that we endorse these sites or the products and services they provide and we make no warranties or representations of any kind whatsoever regarding those websites, including the products, software, materials, services, content, completeness, accuracy or appropriateness of content on such linked websites. You acknowledge and agree that we are not responsible or liable for the content or accuracy of these other sites.
Certain of the Services on the Site may have additional terms (such as policies, guidelines, and rules) that will further govern your use of that particular Service and supplement these Terms of Service. If you choose to register for or access any such Services, you will be presented with any relevant additional terms and conditions at that time. By using those Services, you agree to comply with such additional guidelines and rules.
Pricing for the services selected shall only apply to the applicable service identified. Based upon each individual Provider’s judgment, other treatment, services, tests and/or interventions may be necessary and may result in additional costs to you. Any such other treatment, services, tests and/or interventions performed by a Clinician or other medical provider will be billed as an additional charge to you by such Clinician or other medical provider. Please see the section on Fees for more information.
You agree to pay a one time, lifetime registration fee of $49 for access to our Site, and hereby authorize Us to charge Your credit card for such fees. If Your credit card is declined You will not be able to access our Site.
Cancellation policy – you may choose to contact email@example.com to cancel your membership. OPPC offers Students a ten (10) day, no-questions- asked refund of your lifetime registration fee. The 10-day period for requesting a refund begins on the date You register for access to our services. Please note, You are subject to each Provider’s private practice policies in terms of missed or cancelled sessions. OPPC will not be responsible for any fees incurred between the Provider and client, and this cancellation and refund policy does not apply to any fees or services between You and a Provider.
You may not use contact information provided by our users or collaborating Providers, or harvest such information for the purpose of sending, or to facilitate the sending, of unsolicited bulk communications such as SPAM. You may not allow others to use your account to violate the terms of this section. We may terminate your membership or access to the Site immediately and take other legal action if you or anyone using your Credentials violates these provisions.
Content You Post or Submit
You will have the opportunity to submit feedback regarding your experiences with Providers who are featured on the Site. You agree that you will only provide Posted Content that you believe to be true and you will not purposely provide false or misleading information. You may not provide feedback that: (i) is false or intentionally misleading; (ii) harasses or advocates harassment of another person; (iii) violates the rights of any person; (iv) is threatening, obscene, defamatory or libelous, or (v) otherwise creates any liability for OPPC or any of its affiliates or users of the Site. OPPC reserves the right to investigate and take appropriate legal action in its sole discretion against anyone who violates this provision, including without limitation, removing the offending communication from the Services and terminating the membership of such violators or blocking your use of the Services and/or the Site.
Your Use of Content
Except for Posted Content that you or any other visitors to the Site submit, all of the Information available on or through the Services and/or the Site, including without limitation, text, photographs, graphics and video and audio content, is owned by us and our licensors and is protected by copyright, trademark, patent, and trade secret laws, other proprietary rights, and international treaties. You acknowledge that the Services and any underlying technology or software used in connection with the Services contain OPPC’s proprietary information. We give you permission to use the aforementioned content for personal, non-commercial purposes only and do not transfer any intellectual property rights to you by virtue of permitting your use of the Services. You may print, download, and store information from the Site for your own convenience, but you may not copy, distribute, republish (except as permitted in this paragraph), sell, or exploit any of the content, or exploit the Site in whole or in part, for any commercial gain or purpose whatsoever. Except as is expressly and unambiguously provided herein, OPPC and its suppliers do not grant you any express or implied rights, and all rights in the Site and the Services not expressly granted by OPPC to you are retained by OPPC.
We do not collect fees for services offered by Providers.
Providers offer their services for fees that may be listed in the Site. These fees are due to the Provider at the time of the appointment.
Late Cancellation Fees. If you cancel your appointment, your cancellation will be subject to the cancellation, refund, and rescheduling policies of your Provider. OPPC cannot control any fees that may be charged to a User regarding a cancellation, late arrival, rescheduling, or other occurrence.
Financial Terms. In connection with your membership, you will be asked to provide customary billing information such as name, billing address and credit card information either to OPPC or its third party payment processor. Once your transaction is complete you will receive a confirmation email summarizing your membership.
Upon a request by us, you agree to defend, indemnify, and hold harmless us, our employees, contractors, officers, directors, agents, parent, other affiliated companies, and suppliers, from all liabilities, claims, demands and expenses, including attorney’s fees, made by any third party that arise from or are related to (a) your access to the Site, (b) your use of the Services, or (c) the violation of these Terms of Service by you or any third party using your Credentials of any intellectual property or other right of any person or entity. The foregoing indemnification obligation does not apply to liabilities, claims and expenses arising as a result of our own gross negligence or intentional misconduct.
Electronic Contracting and Notices
Your affirmative act of using this Site and/or registering for the Site or the Services constitutes your electronic signature to these Terms of Service and your consent to enter into agreements with us electronically.
No unlawful or prohibited use
As a condition of your use of the Open Path website, you warrant to OPPC that you will not use the Open Path website for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the Open Path website in any manner which could damage, disable, overburden, or impair the Open Path website or interfere with any other party’s use of the Open Path website. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Open Path website.
WE PROVIDE THE SITE AND THE SERVICES “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE.” WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR GUARANTEES ABOUT THE SITE OR SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM ALL SUCH WARRANTIES, INCLUDING ALL STATUTORY WARRANTIES, WITH RESPECT TO THE SERVICES AND THE SITE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES THAT THE SERVICES ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. WE DO NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR SERVICES WILL BE EFFECTIVE, RELIABLE OR ACCURATE OR WILL MEET YOUR REQUIREMENTS. WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITE OR SERVICES (EITHER DIRECTLY OR THROUGH THIRD-PARTY NETWORKS) AT TIMES OR LOCATIONS OF YOUR CHOOSING. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF ANY INFORMATION PROVIDED BY USERS OF THE SITE OR ANY OTHER CONTENT, DATA OR INFORMATION PROVIDED OR RECEIVED THROUGH THE SITE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, OPPC MAKES NO WARRANTIES ABOUT THE INFORMATION SYSTEMS, SOFTWARE AND FUNCTIONS MADE ACCESSIBLE THROUGH THE SITE OR ANY OTHER SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION. OPPC DOES NOT WARRANT THAT THE SITE OR THE SERVICES WILL OPERATE ERROR-FREE, THAT LOSS OF DATA WILL NOT OCCUR, OR THAT THE SERVICES SOFTWARE OR SITE ARE FREE OF COMPUTER VIRUSES, CONTAMINANTS OR OTHER HARMFUL ITEMS.
THE INFORMATION PROVIDED ON THE SITE IS NOT INTENDED AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MENTAL HEALTH ADVICE, DIAGNOSIS, OR TREATMENT. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MENTAL HEALTH ADVICE FROM A QUALIFIED HEALTH CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE SITE. DO NOT USE THE SITE FOR EMERGENCY MENTAL HEALTH NEEDS. IF YOU BELIEVE THAT YOU ARE EXPERIENCING A MENTAL HEALTH EMERGENCY CALL 911. YOUR USE OF INFORMATION PROVIDED ON THE SITE IS SOLELY AT YOUR OWN RISK. NOTHING STATED OR POSTED ON THE SITE OR AVAILABLE THROUGH ANY SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MENTAL HEALTH CARE OR THE PROVISION OF MENTAL HEALTH CARE. We do not recommend or endorse any specific tests, mental health professionals, procedures, opinions, or other information that may appear on the Site. If you rely on any of the Information provided by the Site, you do so solely at your own risk.
THE INFORMATION, AND SERVICES INCLUDED IN THE SITE OR AVAILABLE THROUGH THE SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. OPPC MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SITE AT ANY TIME.
YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS THE CANCELLATION OF YOUR MEMBERSHIP. IN NO EVENT SHALL OUR TOTAL CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO OR ARISING OUT OF YOUR USE OF THE SERVICES OR THE SITE, REGARDLESS OF THE FORM OF ACTION, EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT OF FEES, IF ANY, THAT YOU PAID TO UTILIZE OUR SITE OR OUR SERVICES OR (B) $49. UNDER NO CIRCUMSTANCES WILL OUR SITE OR OUR SERVICES BE DEEMED TO INCLUDE ANY SERVICE PROVIDED BY A PROVIDER.
OPPC MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SERVICES AND RELATED GRAPHICS CONTAINED ON THE SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SERVICES AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. OPPC HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OPPC AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SITE, WITH THE DELAY OR INABILITY TO USE THE SITE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF OPPC HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, OR WITH ANY OF THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE SOLUTION IS TO DISCONTINUE USE OF THE SITE.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 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”.
Termination or restricted access; Choice of Law; Entire Agreement; Severability; Waiver
OPPC may terminate and/or suspend your membership immediately, without notice, if there has been a violation of these Terms of Service or other policies and terms posted on the Site by you or by someone using your Credentials. We may also cancel or suspend your registration for any other reason but will attempt to notify you in advance of such cancellation or suspension. OPPC shall not be liable to you or any third party for any termination of your access to the Site and/or the Services. Further, you agree not to attempt to use the Site and/or the Services after any such deletion, deactivation or termination. To the maximum extent permitted by law, this agreement is governed by the laws of the State of North Carolina, U.S.A. and you hereby consent to the exclusive jurisdiction and venue of courts in Buncombe County, North Carolina, U.S.A. in all disputes arising out of or relating to the use of the Site. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph. You agree that no joint venture, partnership, employment, or agency relationship exists between you and OPPC as a result of this agreement or use of the Site. OPPC’s performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of OPPC’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by OPPC with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect. Unless otherwise specified herein, this agreement constitutes the entire agreement between the user and OPPC with respect to the Site and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and OPPC with respect to the Site. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
If any part of these Terms of Service is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The failure of OPPC to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
Copyright Dispute Policy
OPPC has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act or DMCA (posted at http://www.lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of OPPC’s Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is provided at the bottom of this section. OPPC Policy. It is OPPC’s policy to (a) block access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users; and (b) remove and discontinue service to repeat offenders. Procedure for Reporting Copyright Infringements. If you believe that material or content residing on or accessible through the Site or the Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below (“Proper Bona Fide Infringement Notification”): • A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed; • Identification of works or materials being infringed; • Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that OPPC is capable of finding and verifying its existence; • Contact information about the notifier including address, telephone number and, if available, email address; • A statement that the notifier has a good faith belief that the material is not authorized by the copyright owner, its agent, or the law; and • A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner. Upon Receipt of a Bona Fide Infringement Notification. Once Proper Bona Fide Infringement Notification is received by the Designated Agent, it is OPPC’s policy: • to remove or disable access to the infringing material; • to notify the content provider, member or user that it has removed or disabled access to the material; and • that for repeat offenders, OPPC will also terminate such content provider’s, member’s or user’s access to the service. Procedure to Supply a Counter-Notice to the Designated Agent. If the content provider, member or user believes that the material that was removed or to which access was disabled is either not infringing, or the content provider, member or user believes that it has the right to post and use such material from the copyright owner, the copyright owner’s agent, or pursuant to the law, the content provider, member or user must send a counter-notice containing the following information to the Designated Agent listed below: • A physical or electronic signature of the content provider, member or user; • Identification of the material that has been removed or to which access to has been disabled and the location at which the material appeared before it was removed or disabled; • A statement that the content provider, member or user has a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material; and • The content provider’s, member’s or user’s name, address, telephone number, and, if available, email address and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s, member’s or user’s address is located, or if the content provider’s, member’s or user’s address is located outside the United States, for any judicial district in which OPPC is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement. Removal. If a counter-notice is received by the Designated Agent, OPPC may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at OPPC’s discretion. Address for Designated Agent. Please contact OPPC’s Designated Agent to Receive Notification of Claimed Infringement at the following address: Open Path Psychotherapy Collective, 22 S. Pack Square, #1000, Asheville, North Carolina 28801 Phone: 800-268-2833 Fax: 800-268-2833 Email: firstname.lastname@example.org
Choice of Law and Dispute Resolution
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH OPPC AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
Arbitration Agreement; Claims. This remaining paragraphs of this Section 23 are referred to as the “Arbitration Agreement” in these Terms. Unless you opt out of the Arbitration Agreement in accordance with the procedure described in Section 23’s Opt-Out Procedures below, you and OPPC (together, the “Parties”) agree that any and all disputes or claims that arise between you and OPPC relating to the OPPC Service and/or these Terms (including any alleged breach of these Terms) (collectively, “Claims”), except for Excluded Claims (defined in the following sentence), will be resolved as set forth in this Arbitration Agreement. As used herein, “Excluded Claims” means (1) individual claims brought in small claims court (if your claims qualify), (2) claims arising out of or related to a violation of Section 15, above, (3) claims in which either party seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property (including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents), and (4) claims that, as a matter of applicable law, cannot be made subject to arbitration.
Agreement to Arbitrate. Unless you opt out of the Arbitration Agreement in accordance with the procedure described in Section 23’s Opt-Out Procedures below, you agree that any and all Claims (other than Excluded Claims) will be resolved exclusively on an individual basisthrough final and binding arbitration, rather than in a court, in accordance with this Arbitration Agreement, and your rights in connection with all Claims (other than Excluded Claims) will be determined by a neutral arbitrator, not by a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To the extent that the Parties’ dispute involves both timely filed Excluded Claims and other Claims subject to this Agreement, the Parties agree to bifurcate and stay for the duration of the arbitration proceedings any such Excluded Claims.
Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND OPPC AGREE THAT, UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT IN ACCORDANCE WITH Section 23’s Opt-Out Procedures BELOW, EACH OF US MAY BRING CLAIMS (EXCEPT TO THE EXTENT THAT THE RIGHT TO BRING A CLAIM IN A PURPORTED CLASS OR REPRESENTATIVE ACTION CANNOT BE WAIVED AS A MATTER OF LAW) AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND OPPC AGREE OTHERWISE (OR TO THE EXTENT THAT THE RIGHT TO BRING A CLAIM IN A PURPORTED CLASS OR REPRESENTATIVE ACTION CANNOT BE WAIVED AS A MATTER OF LAW), THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER OPPC USERS.
Pre-Arbitration Dispute Resolution. Before you commence arbitration, we suggest that you contact us to explain your complaint. Our preference will always be to resolve complaints amicably and efficiently, without the need for arbitration. You may contact us via email at email@example.com or by mail at Open Path Psychotherapy Collective, 22 S. Pack Square, #1000, Asheville, North Carolina 28801. If the issue is not resolved and results in arbitration, we will need to mutually select and agree upon an arbitrator and the rules and procedures to govern the arbitration.
Arbitration Procedures. The Parties will try in good faith to mutually select and agree upon an arbitrator and rules and procedures to govern the arbitration. If we cannot agree, then the arbitration will be conducted by one neutral arbitrator in accordance with the rules of the American Arbitration Association (“AAA Rules”), as modified by this Arbitration Agreement. The rules that apply are those in effect when arbitration is demanded by either of the Parties. The AAA Rules are incorporated by reference. You either acknowledge and agree that you have read and understand the AAA Rules or waive your opportunity to read the AAA Rules and any claim that the AAA Rules are unfair or should not apply for any reason. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would, including without limitation, the limitation of liability provisions in Section 20. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms and applicable law. The arbitrator shall submit a decision in writing, specifying the findings of fact and the conclusions of law on which the decision is based. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
The arbitration will be held in the county in which OPPC’s principal offices are located. If the value of the relief sought is $10,000 or less, you or OPPC may elect to have the arbitration conducted by telephone or based solely on written submissions, which election will be binding on you and OPPC subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by you and/or OPPC, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of North Carolina, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator will not be bound by rulings in prior arbitrations involving different OPPC users, but is bound by rulings in prior arbitrations involving the same OPPC user to the extent required by applicable law. As limited by the Federal Arbitration Act, these Terms and the applicable AAA Rules, the arbitrator will have (1) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Claim, including the determination of whether a Claim is arbitrable, and (2) the authority to grant any remedy that would otherwise be available in court.
Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees“) will be shared equally by you and OPPC, except where prohibited by applicable law. In addition, (1) if you demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, OPPC will pay your portion of such fees, and (2) if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, OPPC will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Each party will be solely responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse OPPC for all fees associated with the arbitration paid by OPPC on your behalf that you otherwise would be obligated to pay under the AAA Rules.
Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Severability. If any term, clause or provision of this Section 23 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 23 will remain valid and enforceable.
Opt-Out Procedure.You can choose to reject this Arbitration Agreement by mailing us a written opt-out notice (“Opt-Out Notice“) in accordance with the terms of this Section 23’s Opt-Out Procedures. For new OPPC users, the Opt-Out Notice must be postmarked no later than 30 days after the date you accept these Terms for the first time. If you are already a current OPPC user and previously accepted the OPPC Terms, the Opt-Out Notice must be postmarked no later than [insert date 30 days after the adoption date of these Terms]. You must mail the Opt-Out Notice to Open Path Psychotherapy Collective, 22 S. Pack Square, #1000, Asheville, North Carolina 28801. The Opt-Out Notice must state that you do not agree to the Arbitration Agreement and must include your name, address, phone number, and the email address(es) used to register for the OPPC Service to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Arbitration Agreement. If you opt out of the Arbitration Agreement, the entire Arbitration Agreement will not apply with respect to you, but the remainder of these Terms will continue to apply. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us. By opting out of binding arbitration, you are agreeing to resolve Claims (including Excluded Claims) in accordance with the non-arbitration terms of this Section 23 and Section 21.
Future Changes to this Arbitration Agreement.Notwithstanding any provision in these Terms to the contrary, you agree that if we make any change to this Arbitration Agreement (other than a change to any notice address or website link provided herein) in the future, that change will not apply to any claim that was filed in a legal proceeding against OPPC prior to the effective date of the change. Moreover, if we terminate this Arbitration Agreement by removing it from these Terms, such termination will not be effective until 30 days after the version of these Terms not containing the Arbitration Agreement is posted to the Site, and will not be effective as to any claim that was filed in a legal proceeding against OPPC prior to the effective date of removal.
We may assign this contract at any time to any parent, subsidiary, or any affiliated company, or as part of the sale to, merger with, or other transfer of our company to another entity. We will post a notice on the Site regarding any change of ownership so that you have the opportunity to discontinue your use of the Site or cancel your registration if you do not wish to continue to use the Site and the Services under the new ownership. You may not assign, transfer or sublicense these Terms of Service to any one else and any attempt to do so in violation of this section shall be null and void.
You must be 18 or over, or the legal age to form a binding contract in your jurisdiction if that age is greater than 18 years of age, to register with us or use the Site and the Services. If you are between the ages of 13 and 18 or the applicable legal age in your jurisdiction, you can use the Site or Services only in conjunction with, and under the supervision of, your parent or guardian who has agreed to the Terms of Service. If you are under the age of 13, you may not use the Site or Services, in compliance with the Children’s Online Privacy Protection Act. If you are the parent or legal guardian of a child under the age of 18, you may use the Site or Services on behalf of such minor child. By using the Site or Services on behalf of a minor child, you represent and warrant that you are the parent or legal guardian of such child and that all references in these Terms of Service to “you” shall refer to such child or such other individual for whom you have authorization to enter into these Terms of Service on their behalf, and you in your capacity as the parent or legal guardian of such child or as the authorized party of such individual. If you do not qualify under these terms, do not use the Site or Services. Membership in the Services is void where prohibited by applicable law, and the right to access the Site is revoked in such jurisdictions. By using the Site and/or the Services, you represent and warrant that you have the right, authority, and capacity to enter into these Terms of Service and to abide by all of the terms and conditions set forth herein. The Site is administered in the U.S. and intended for U.S. users; any use outside of the U.S. is at the users own risk and user’s are responsible for compliance with any local laws applicable to their use of the Services or the Site.