Sika Health, Inc. (“Sika,” “we,” or “our”) provides a platform that allows merchants to accept FSA and/or HSA funds as a payment method at checkout by determining whether a purchase is FSA and/or HSA eligible and, if appropriate, enables a service through which eligible customers may obtain a letter of medical necessity (“LMN”) through an independent practitioner to support the purchase with HSA/FSA funds (the “Services”).
Please read these Terms of Service (the “Terms”) and our Privacy Policy (“Privacy Policy”) carefully because they govern your use of the Services.
ARBITRATION NOTICE: EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE DISPUTE RESOLUTION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND SIKA WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. YOU CAN OPT OUT OF THE ARBITRATION AGREEMENT BY CONTACTING SUPPORT@SIKAHEALTH.COM WITHIN 30 DAYS OF ACCEPTING THESE TERMS.
TERMS OF SERVICE
1. Changes to these Terms or the Services. With the exception of the Arbitration Agreement (see Section 11), we may update the Terms from time to time in our sole discretion. If we do, we’ll let you know by posting the updated Terms on the Sika website currently located at https://sikahealth.com, and we may send other communications at our discretion or if required by applicable law. If you continue to use the Services after we have posted updated Terms, it means that you accept and agree to the changes. If you don’t agree to be bound by the changes, you may not use the Services anymore. Because our Services evolve over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
2. Intellectual Property Rights and Limited License. We may make available through the Services content that is subject to intellectual property rights. We retain all rights to that content. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Services for your noncommercial use and for no other purpose.
3. General Prohibitions and Sika’s Enforcement Rights. In connection with your use of the Services, you agree not to do any of the following:
a. Use, display, mirror or frame the Services or any individual element within the Services, Sika’s name, any Sika trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Sika’s express written consent;
b. Access, tamper with, or use non-public areas of the Services, Sika’s computer systems, or the technical delivery systems of Sika’s providers;
c. Attempt to probe, scan or test the vulnerability of any Sika system or network or breach any security or authentication measures;
d. Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Sika or any of Sika’s providers or any other third party (including another user) to protect the Services;
e. Attempt to access or search the Services or download content from the Services using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Sika or other generally available third-party web browsers;
f. Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
g. Use any meta tags or other hidden text or metadata utilizing a Sika trademark, logo URL or product name without Sika’s express written consent;
h. Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
i. Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
j. Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
k. Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
l. Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
m. Impersonate or misrepresent your affiliation with any person or entity;
n. Use the Services for the purpose of competing with Sika or to promote other products or Services;
o. Post “spam” or other unauthorized commercial communications;
p. Violate any applicable law or regulation; or
q. Encourage or enable any other individual to do any of the foregoing.
Sika is not obligated to monitor access to or use of the Services. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We have the right to investigate conduct that affects the Services or violations of these Terms. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
4. Links to Third Party Websites or Resources. The Services may allow you to access third-party websites or other resources. We provide access only as a convenience and are not responsible for the content, products or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party resources.
5. Letters of Medical Necessity.
(a) Any LMNs and services relating to the provision of (or decision not to provide) an LMN through the Services are provided by independent practitioners (“LMN Services” as provided by “LMN Service Providers”). Accordingly, if you choose to utilize the LMN Services, you may be subject to additional terms and conditions, including signing a Consent to Arrange Telehealth Appointment and Obtain Letter of Medical Necessity (“LMN Consent”). To the extent applicable, you will receive a notification and have the opportunity to review, complete, and sign an LMN Consent. IF YOU DO NOT UNDERSTAND OR DO NOT AGREE TO BE BOUND BY THOSE ADDITIONAL TERMS AND CONDITIONS, AND/OR CONSENT, DO NOT USE THE RELATED LMN SERVICES.
(b) In the event of any inconsistency between terms of use relating to LMN Services and these Terms, these Terms will control with respect to such LMN Services, unless otherwise expressly set forth in the LMN Consent. LMN Service Providers may collect and use certain information about you, as specified in the LMN Service Provider’s privacy policies. Prior to providing information to any LMN Service Provider, you should review their privacy policy. IF YOU DO NOT UNDERSTAND OR DO NOT AGREE TO THE TERMS OF AN LMN SERVICE PROVIDER’S PRIVACY POLICY OR TERMS OF USE, YOU SHOULD NOT USE THE RELATED LMN SERVICES. WE WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE FOR ANY OF YOUR INFORMATION COLLECTED OR USED BY THIRD-PARTY SERVICE PROVIDERS.
(c) To the extent you desire to obtain a LMN, any such LMN will be based on personal health data and related information you provide via our Services. If you do not provide complete and accurate personal health information, the LMN you receive may not be accurate or appropriate. Questions and information collected through our platform in connection with the Services are designed for informational purposes and to facilitate the generation of a LMN for eligible customers. The Services and/or any data derived in connection with your use of the Services are in no way intended to replace the independent clinical judgment of a qualified healthcare professional. Further, in connection with LMNs, Sika is not responsible for retaining your personal health information in accordance with applicable medical retention rules. This is the responsibility of the LMN Service Providers, who are legally obligated to and will maintain such information in accordance with all applicable medical retention laws, rules, and regulations.
(d) LMN Service Providers are independent practitioners that provide LMN Services. LMN Service Providers may determine that you are not eligible for an LMN, in which case you will have no recourse against Sika. Sika has no, and expressly disclaims any, responsibility for any LMN Service Provider’s decision whether to issue you an LMN.
ANY MEDICAL ADVICE PROVIDED TO YOU BY AN LMN SERVICE PROVIDER OR ANY OTHER PROFESSIONAL IN CONNECTION WITH THE LMN SERVICES OR OTHERWISE IS NOT UNDER OUR CONTROL, NOR DO WE PROVIDE IT TO YOU OR USE IT.
(e) By accepting these terms or by using the Services, you agree and acknowledge that Sika does not provide healthcare diagnosis and/or treatment services. Our role is limited to supporting and facilitating your ability to use your FSA and/or HSA funds as a payment method to acquire goods from third-party merchants, and to the extent needed facilitating eligible customers’ ability to use these funds by obtaining a LMN. YOU AGREE AND ACKNOWLEDGE THAT SIKA IS IN NO WAY PROVIDING DIAGNOSIS OR TREATMENT TO YOU. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE INFORMATION, PROCESSES, PRODUCTS, AND OTHER ITEMS REFERENCED AS PART OF THE SERVICES ARE NOT INTENDED AS A RECOMMENDATION OR ENDORSEMENT OF ANY COURSE OF ACTION, INFORMATION, OR PRODUCT. SIKA EXPLICITLY DISCLAIMS THE CREATION OF A PROVIDER-PATIENT RELATIONSHIP WITH YOU, AND YOU ACKNOWLEDGE AND AGREE THAT ANY SUCH RELATIONSHIP IS BETWEEN YOU AND THE LMN SERVICE PROVIDER.
(f) THE SERVICES CANNOT, AND ARE NOT DESIGNED, INTENDED, OR APPROPRIATE TO, REPLACE THE RELATIONSHIP BETWEEN HEALTH CARE PROFESSIONALS AND PATIENTS OR TO ADDRESS SERIOUS, EMERGENT, OR LIFE-THREATENING MEDICAL CONDITIONS AND SHOULD NOT BE USED IN THOSE CIRCUMSTANCES. If you are a user and you or someone you know believes you are suffering an emergent or life-threatening condition, call 9-1-1 immediately where that service is available or go to the nearest open clinic or emergency room.
6. Suspension & Termination. We may suspend or terminate your access to and use of the Services at our sole discretion, at any time and without notice to you. You may cancel your account at any time by sending us an email at support@sikahealth.com. Upon any termination, discontinuation or cancellation of the Services or your account, the following Sections will survive: 5, 7, 8, 9, 10, 11, 12, and 14.
7. Warranty Disclaimers. THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FURTHER, YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH THE SIKA PLATFORM AND SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM AND SERVICES, INCLUDING, WITHOUT LIMITATION, ANY LMN SERVICE PROVIDERS OR OTHER AUTHORIZED THIRD PARTIES. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any information or content on the Services.
8. Indemnity. You will indemnify and hold Sika and its officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, penalties, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your access to or use of the Services, (b) your violation of these Terms, (c) an inaccurate LMN that is based on the health information you provide, (d) your purchase of products with FSA/HSA funds for general or cosmetic purposes rather than for the declared medical purpose, or (e) your purchase of certain products with FSA/HSA funds without a supporting LMN.
9. Limitation of Liability.
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER SIKA NOR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SIKA OR ITS SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b) YOU ACKNOWLEDGE THAT IF YOU USE THE PLATFORM OR SERVICES DURING OR IN RELATION TO AN EMERGENT, SERIOUS, OR LIFE-THREATENING CONDITION, SUCH USE IS AT YOUR SOLE RISK. SIKA IS NOT LIABLE TO YOU OR ANY PERSON FOR ANY DECISION MADE OR ACTION TAKEN IN RELIANCE UPON INFORMATION INCLUDED AS PART OF THE PLATFORM OR SERVICES.
(c) SIKA IS NOT LIABLE TO ANY USER OR PERSON FOR ANY HARM CAUSED BY THE NEGLIGENCE OR MISCONDUCT OF ANY LMN SERVICE PROVIDERS, WHETHER OR NOT RELYING UPON INFORMATION COLLECTED, GENERATED, OR STORED VIA THE PLATFORM OR SERVICES. YOU EXPRESSLY RELIEVE SIKA OF ANY LIABILITY ARISING FROM YOUR USE OF ANY LMN SERVICE PROVIDER.
(d) TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL SIKA’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE LESSER OF THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO SIKA FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100).
(e) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SIKA AND YOU.
10. Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the laws of the State of New York, without regard to its conflict of laws provisions. The parties expressly consent to personal and exclusive jurisdiction in the state and federal courts located in New York, New York, and you and Sika each waive any objection to jurisdiction and venue in such courts.
11. Arbitration Agreement. In the unlikely event that our support team is unable to resolve a complaint you may have (or if we have not been able to resolve a dispute with you after attempting to do so informally), including, but not limited to, any alleged breach of these Terms, you agree to resolve the dispute through binding arbitration. Arbitration, which is often less expensive, faster, and less formal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury. Arbitrators can award the same damages and relief that a court can award, and may, but do not have to, award legal fees, arbitrator’s fees and costs, and other costs incurred by the party that does not win the dispute. You agree that any dispute will be exclusively, fully, and finally resolved using binding arbitration through the American Arbitration Association (“AAA”).
You and Sika agree to employ three (3) arbitrators (the “Panel”), where one arbitrator (1) is selected by you, one (1) arbitrator is selected by Sika, and the third (3rd) arbitrator is selected by mutual consent of you and Sika. If you and Sika cannot agree upon the third arbitrator, the first two (2) arbitrators chosen shall select the third arbitrator. The selection decision shall be binding. The arbitration shall be conducted by telephone, online, and/or be solely based on written submissions—the specific manner to be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. Any judgment on the award rendered by the Panel may be entered in any court of competent jurisdiction. Any claim or dispute arising under these Terms must be initiated by arbitration within two (2) years from its accrual date. Any claim or dispute initiated two (2) years or longer from its accrual date shall be time-barred and dismissed.
Each party will pay the fees for its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. In all cases where required by law, Sika will pay the arbitrator's and arbitration fees. If under applicable law Sika is not required to pay all of the arbitrator's and/or arbitration fees, such fee(s) will be apportioned between the parties in accordance with said applicable law. Any disputes regarding whether Sika is required to pay the arbitrator’s and arbitration fees and/or how those fees are to be apportioned between the parties will be resolved by the arbitrator.
Sika may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Platform and Services or infringement of intellectual property rights (for example, trademark, trade secret, copyright, or patent rights) without first engaging in the informal dispute-resolution process described above.
YOU MAY ONLY RESOLVE DISPUTES WITH SIKA ON AN INDIVIDUAL BASIS, AND MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT ALLOWED UNDER THESE TERMS. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, YOU AND SIKA EACH WAIVE ANY RIGHT TO A JURY TRIAL.
Notwithstanding the above, you can decline or “opt out” of the alternative dispute resolution process described above by contacting legal@sikahealth.com within 30 days of first accepting these Terms and stating that you (first and last name) decline this dispute resolution process. YOU UNDERSTAND AND AGREE THAT, BY NOT OPTING OUT OF THE ALTERNATIVE DISPUTE RESOLUTION PROCESS DESCRIBED, YOU WAIVE ANY RIGHT TO A JURY TRIAL TO WHICH YOU MAY OTHERWISE BE ENTITLED IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THESE TERMS. If you opt out of the dispute resolution process described in this section of if this arbitration provision is found to be null and void, then all disputes arising under the Terms between us will be subject to the jurisdiction of the state and federal courts located in New York City, New York , and you and we hereby submit to the personal jurisdiction and venue of these courts. You and Sika agree that if for any reason a dispute proceeds in court rather than arbitration: (1) you and Sika waive any right to a jury trial; (2) the dispute will proceed solely on an individual, non-class, non-representative basis; and (3) neither you nor Sika may be a class representative or class member or otherwise participate in any class, representative, consolidated, or private attorney general proceeding.
12. Privacy. Sika’s collection and use of your personal information via the Services is described in our Privacy Policy. By accessing or using the Services, you acknowledge and agree that you have read and understand our Privacy Policy, as updated from time to time.
13. Copyright Infringement. Sika follows the procedures of the Digital Millennium Copyright Act by providing recourse for copyright owners who believe that material appearing on the internet infringes their rights under US copyright law. If you believe in good faith that materials available on the Services infringe your copyright, you or your agent may send us a written notice by mail or e-mail, requesting that we remove such material or block access to it. See https://www.copyright.gov for details. Notices must be sent in writing to:
Sika Health, Inc.
2196 Third Ave, Unit 10039
New York NY, 10035
Attn: Legal
E-mail: legal@sikahealth.com
14. General Terms.
(a) E-Sign Consent. You agree to the use of electronic records and signatures in association with the Services. Your agreement and intent to use electronic records and signatures applies to all transactions you enter into via the Services. If you do not wish to use electronic records and signatures, do not use the Services. You may have a legal right to receive certain information from us in writing. You agree that we may use e-mail and other electronic means to provide you with such information as well as for other communications. To access and retain this information you will need an active e-mail account, and you must have an Internet-connected device that is capable of receiving HTML e-mails and PDFs, as well as a method of storing or printing those documents. You may have a legal right to receive paper copies of certain notices or to withdraw your consent for us to use electronic records to provide you with information that is required by law to be in writing. To inquire about or exercise the rights you may have, contact us at support@sikahealth.com. By using the Services, you agree that you have the ability to access and retain HTML emails and PDF files.
(b) Reservation of Rights. Sika and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
(c) Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Sika and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between Sika and you regarding the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible, and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Sika’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Sika may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
(d) Notices. Any notices or other communications provided by Sika under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
(e) Waiver of Rights. Sika’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Sika. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
15. Contact Information. If you have any questions about these Terms or the Services, please contact Sika at support@sikahealth.com / 2196 Third Ave, Unit 10039, New York NY, 10035.
