Terms of Service
Last Updated: May 20th, 2026
Welcome, and thank you for your interest in Encora, Inc. (“Encora,” “we,” “our,” or “us”) and our website at https://encoratherapeutics.com/, along with our related websites, mobile or other downloadable applications, software, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Encora regarding your use of the Service.
THE SERVICE IS NOT DESIGNED FOR OR INTENDED FOR EMERGENCY USE. IF YOU HAVE A MEDICAL EMERGENCY, CALL 9-1-1 IMMEDIATELY.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, TOGETHER WITH (I) ENCORA’S PRIVACY POLICY AND (II) ENCORA’S NOTICE OF PRIVACY PRACTICES (COLLECTIVELY, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THESE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND ENCORA’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY ENCORA AND BY YOU TO BE BOUND BY THESE TERMS.
YOU AGREE TO RECEIVE TEXTS/CALLS FROM OR ON BEHALF OF ENCORA AT THE PHONE NUMBER YOU PROVIDE TO US. THESE TEXTS/CALLS WILL INCLUDE TEXTS/CALLS FOR REMINDERS, MARKETING, SUPPORT, AND OTHER COMMUNICATION PURPOSES. YOU UNDERSTAND AND AGREE THAT THESE TEXTS/CALLS MAY BE CONSIDERED TELEMARKETING UNDER APPLICABLE LAW, THEY MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT A CONDITION OF ANY PURCHASE.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 15 (Dispute Resolution and Arbitration), you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND ENCORA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
1. Services.
1.1 Encora Service Overview. The Service provides information about Encora and our products and services, including the Encora X1™ (Rx only) (“Encora Device”). The Service also enables you, among other things, to view or input certain information, including customer surveys.
1.2 No Medical Advice. Informational Only. We do not provide medical advice. You understand that the use of the Service does not create a doctor-patient relationship. You acknowledge and agree that none of the Service or information provided thereunder has the ability to diagnose, treat, cure, mitigate, or prevent any disease or condition, or to prescribe or perform any task that constitutes the practice of medicine. The Service is not a substitute for any professional medical advice. All information provided by the Service, including information about our company, products, and technology, is for general informational purposes only. While we attempt to keep all the information provided through our Service up-to-date, information can change quickly, and our Service should not be considered error-free or as a comprehensive source of all information on a particular topic. Any reliance you place on such information is strictly at your own risk. We assume no responsibility for any consequences relating directly or indirectly to any action or inaction you may take based upon the information provided through our Service.
If you have any questions regarding your health or a medical condition, including whether a product or solution is appropriate for you or the result of using any product described by our Service, you should seek the advice of your physician or other qualified healthcare professional.
1.3 Product Information. Features and specifications of any products, including the Encora Device, described via or in our Service are subject to change at any time without notice. Your use of any of our products is subject to additional disclaimers and terms and conditions that accompany such product.
2. Eligibility.
You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and use of the Service comply with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
3. Accounts and Registration.
To access most features of the Service, you must access it via a registered account. After Encora receives your information from your healthcare provider through a prescription or otherwise, Encora will register an account for you and you may be required to provide us with some additional information about yourself to finish setting up your account. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When first setting up your account, you may be asked to create a password or utilize another security feature (e.g., multi-factor authentication or biometric login). You are solely responsible for maintaining the confidentiality of your account, password, and other security features, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at support@encoratherapeutics.com.
4. General Payment Terms.
Access to certain features of the Service may require you to pay fees. Prior to payment, you will be presented with the fees and have the option to review and accept them. Unless explicitly stated otherwise in these Terms, all fees are in U.S. Dollars and are non- refundable, except as required by law.
5.Licenses.
5.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Encora grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non- transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile or other downloadable application associated with the Service (whether installed by you or pre-installed on your mobile device by the device manufacturer or a wireless telephone provider) on a mobile device that you own or control; and (b) access and use the Service.
5.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) use the Service for any illegal purpose or in violation of any local, state, national, or international law; (b) infringe, misappropriate, or violate any intellectual property rights in or to the Service, including by reproducing, distributing, publicly displaying, or publicly performing the Service and all Materials (defined below) thereon; (c) make modifications to the Service; (d) interfere with or circumvent any feature of the Service, including any security or access control mechanism, or interfere with a user’s enjoyment of the Service; (e) reverse engineer or otherwise attempt to discover the source code of the proprietary software powering any portion of the Service; (f) use the Service to develop new products and services (including for developing, training, and fine tuning artificial intelligence and machine learning models) without Encora’s express written permission, or (g) use, or permit or facilitate others to use, the Service by automated electronic processes, “robots,” “spiders,” “scrapers,” “webcrawlers,” or other computer programs that monitor, copy, or download data or other content found on or accessed through the Service, whether current or archival.
5.3 Open Source Software. Our mobile application, Encora Device software, and other software may contain or be provided together with open source software. Each item of open source software is subject to its own license terms, which can be found at encoratherapeutics.com/opensource, in the software documentation, or the applicable settings, help, legal, notice or about menu. If required by any license for particular open source software, Encora makes such open source software, and Encora’s modifications to that open source software (if any), available by written request to support@encoratherapeutics.com. Copyrights to the open source software are held by the respective copyright holders indicated therein.
5.4 User Content.
(a) You hereby grant Encora a worldwide, non-exclusive, irrevocable, perpetual, royalty-free, fully paid-up right and license (with the right to sublicense through multiple tiers) to collect, access, use, disclose, transfer, transform, transmit, store, host, or otherwise process (i) information collected by Encora’s products or services, including your Encora Device, and transmitted to Encora or its service providers, including through the Service, as set forth in the applicable product documentation and in accordance with the applicable Privacy Document(s); and (ii) any other information or content you post, upload, publish, submit, or transmit on or though the Service (collectively, the foregoing (i) and (ii), “User Content”), in accordance with the applicable Privacy Document(s). To the extent that your User Content includes personally identifiable information, we will only disclose that information in the limited circumstances identified in the applicable Privacy Document(s). In addition, to the extent that Encora de-identifies any User Content (such that the resulting data no longer reasonably identifies you or any specific individual), you agree that the derived data will not constitute User Content, and will thus be owned by Encora and may be used for its internal business purposes and other lawful purposes.
(b) You hereby authorize Encora and its third-party service providers to derive statistical and usage data relating to your use of the Service (“Usage Data”) and to collect response data or information, including from features of the Service or surveys made available by Encora (including through the Service) (“Aggregated Data”). Aggregated Data will be deidentified and aggregated with other data such that the resulting data no longer reasonably identifies you or a specific individual. We may use Usage Data and Aggregated Data for any purpose in accordance with applicable law and the applicable Privacy Document(s).
(c) You acknowledge and agree that Encora may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process, applicable laws, or government requests; (ii) enforce these Terms; (iii) respond to claims that any content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of Encora, its users, or the public. You understand that the technical processing and transmission of the Service, including your User Content, may involve (A) transmissions over various networks; and (B) changes to conform and adapt to technical requirements of connecting networks or devices.
(d) Encora disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. Encora does not control and does not have any obligation to monitor: (i) User Content; (ii) any content made available by third parties; or (iii) the use of the Service by its users. You acknowledge and agree that Encora reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time Encora chooses to monitor the content, then Encora still assumes no responsibility or liability for any content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with the applicable Privacy Document(s). Encora may block, filter, mute, remove, or disable access to any User Content uploaded to or transmitted through the Service without any liability to you or any other users of the Service.
5.5 Feedback. We respect and appreciate the thoughts and comments from our users, but do not submit any information or other materials that you consider confidential or proprietary through the Service. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service or our other products or services, including the Encora Device (“Feedback”), then you do so on a non-confidential basis (regardless of any designation or indication to the contrary in the submitted information or any accompanying correspondence) hereby grant Encora an unrestricted, perpetual, irrevocable, non- exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
6.Ownership; Proprietary Rights.
The Service is owned and operated by Encora. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, logos, and all other elements of the Service provided by Encora (“Materials”) are protected by intellectual property and other laws. All Materials included in the Service are the property of Encora or its third-party licensors. Except as expressly authorized by Encora, you may not make use of the Materials. There are no implied licenses in these Terms and Encora reserves all rights to the Materials not granted expressly in these Terms.
7.Third-Party Terms.
7.1 Third-Party Services and Linked Websites. Encora may provide tools through the Service that enable you to export information, to third-party services, including through features that allow you to link your account or the Service with an account on the third-party service or share certain User Content with a third party (such as your medical providers or insurance providers). By using one of these tools, you hereby authorize Encora to transfer that information to the applicable third-party service. Third-party services are not under Encora’s control, and, to the fullest extent permitted by law, Encora is not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under Encora’s control, and Encora is not responsible for their content. Please be sure to review the terms of use and privacy policy of any third-party services before you share any User Content or information with such third-party services. Once sharing occurs, Encora will have no control over the information that has been shared.
7.2 Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
8.Communications.
8.1 Text Messaging & Phone Calls. You agree that Encora and those acting on our behalf may call and send you text (SMS) messages at the phone number you provide us. These calls and messages may include operational calls or messages about your use of the Service, as well as marketing calls or messages. Calls and text messages may be made or sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such calls or messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF MARKETING CALLS AND TEXT MESSAGES FROM ENCORA, YOU CAN EMAIL SUPPORT@ENCORATHERAPEUTICS.COM OR TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. IF YOU WISH TO OPT OUT OF ALL CALLS AND TEXT MESSAGES FROM ENCORA, YOU CAN EMAIL SUPPORT@ENCORATHERAPEUTICS.COM OR TEXT THE WORD “STOPALL” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may continue to receive calls and text messages for a short period while we process your request, including a message confirming the receipt of your opt-out request. Your agreement to receive marketing calls and texts is not a condition of any purchase on or use of the Service.
8.2 Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when you are not in the app. You can turn off notifications by visiting your mobile device’s “settings” page.
8.3 Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
9.Prohibited Conduct. BY USING THE SERVICE, YOU AGREE NOT TO:
9.1 use the Service for any illegal purpose or in violation of any local, state, national, or international law;
9.2 violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
9.3 access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Encora;
9.4 interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use, printing, or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
9.5 interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) collecting personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
9.6 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Service account without permission, or falsifying your age or date of birth;
9.7 sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6 (Ownership; Proprietary Rights)) or any right or ability to view, access, or use any Materials; or
9.8 attempt to do any of the acts described in this Section 9 (Prohibited Conduct) or assist or permit any person in engaging in any of the acts described in this Section 9 (Prohibited Conduct).
10.Modification of Terms.
We reserve the right to change these Terms on a going-forward basis at any time. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should remove your User Content and discontinue your use of the Service. Except as expressly permitted in this Section 10 (Modification of Terms), these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
11.Term, Termination, and Modification of the Service.
11.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 11.2 (Termination).
11.2 Termination. If you violate any provision of these Terms, then your authorization to access the Service and these Terms automatically terminate. In addition, Encora may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination. You may terminate your account and these Terms at any time by contacting customer service at support@encoratherapeutics.com.
11.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Encora any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.5 (Feedback), 6 (Ownership; Proprietary Rights), 11.3 (Effect of Termination), 12 (Indemnity), 13
(Disclaimers; No Warranties by Encora), 14 (Limitation of Liability), 15 (Dispute Resolution and Arbitration), and 16 (Miscellaneous) will survive. You are solely responsible for retaining or exporting copies of any of your User Content since upon termination of your account, you may lose access rights to any User Content through the Service. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Service using a different name, email address or other forms of account verification.
11.4 Modification of the Service. Encora reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Encora will have no liability for any change to the Service, including any paid-for functionalities of the Service, or any suspension or termination of your access to or use of the Service. You should retain or export copies of your User Content so that you have permanent copies in the event the Service is modified in such a way that you lose access to your User Content.
12.Indemnity.
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Encora, its affiliates, and its and their respective shareholders, officers, directors, managers, members, officers, employees, consultants, licensors, suppliers, and agents (together, the “Encora Entities”) from and against every claim brought by a third party against an Encora Entity, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or related to: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or other proprietary right or right of publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of the applicable claims.
13.Disclaimers; No Warranties by Encora.
13.1 THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. ENCORA DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON- INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. ENCORA DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND ENCORA DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
13.2 ENCORA DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, USEFULNESS, OR RELIABILITY OF ANY OUTPUT, INFORMATION OR RECOMMENDATION PROVIDED BY THE SERVICE. YOU WILL NOT RELY ON THE SERVICE OR ANY OUTPUT OR RECOMMENDATION AS A SUBSTITUTE FOR YOUR OWN INDEPENDENT DETERMINATIONS AND YOU ARE RESPONSIBLE FOR ANY ACTS OR OMISSIONS YOU UNDERTAKE BASED ON RECOMMENDATIONS, OUTPUTS AND OTHER INFORMATION RECEIVED FROM THE SERVICE. YOU ACKNOWLEDGE AND AGREE THAT: (A) PORTIONS OF THE SERVICES PROVIDED BY ENCORA RELY ON ARTIFICIAL INTELLIGENCE AND MACHINE LEARNING WHICH, BY NATURE, PRODUCES OUTPUTS THAT ARE BASED ON PROBABILISTIC REASONING AND THEREFORE MAY NOT ALWAYS BE ACCURATE, COMPLETE, RELEVANT, USEFUL, OR ERROR-FREE. ENCORA IS NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE; AND (B) THE NATURE OF THE SERVICES AND MACHINE LEARNING OR ARTIFICIAL INTELLIGENCE TECHNOLOGY GENERALLY, OUTPUT MAY NOT BE UNIQUE, NOVEL, EXCLUSIVE, OR OTHERWISE SPECIFIC TO YOU OR YOUR INPUT AND OTHER USERS OF THE SERVICES MAY RECEIVE SIMILAR OUTPUT VIA THE SERVICES. TO THE GREATEST EXTENT PERMITTED BY LAW, ENCORA MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY OF THE FOREGOING ACKNOWLEDGMENTS.
13.3 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ENCORA ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE ENCORA ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU ACCESS AND USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
13.4 WITHOUT LIMITING ANY OTHER TERMS IN THIS SECTION 13 OR ELSEWHERE IN THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT ENCORA DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, GUARANTEES, OR ENDORSEMENTS REGARDING ANY MEDICAL SERVICES OR ADVICE THAT YOU MAY OBTAIN THROUGH THE SERVICE OR OTHERWISE. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY SEEKING MEDICAL TREATMENT BECAUSE OF SOMETHING YOU HAVE READ ON OR ACCESSED THROUGH THE SERVICE. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR YOUR LOCAL EMERGENCY NUMBER IMMEDIATELY. ENCORA IS NEITHER RESPONSIBLE NOR LIABLE FOR ANY ADVICE, COURSE OF TREATMENT, DIAGNOSIS, OR ANY OTHER THIRD-PARTY INFORMATION, SERVICE, PRODUCT, OR SERVICE THAT YOU ACCESS THROUGH THE SERVICE. THE INCLUSION OR MENTION OF ANY HEALTHCARE PROVIDER ON THE SERVICE WILL NOT BE CONSIDERED AS AN ENDORSEMENT OF SUCH HEALTHCARE PROVIDER BY ENCORA AND WILL NOT IN ANY WAY MEAN THAT ENCORA HAS CONDUCTED ANY DUE DILIGENCE OR OTHER INVESTIGATION REGARDING THE HEALTHCARE PROVIDER.
13.5 ENCORA IS NOT A HEALTHCARE PROVIDER. ENCORA DOES NOT VERIFY OR REVIEW ANY INFORMATION OR SERVICE THAT YOU MAY RECEIVE FROM A PROVIDER OR ANY OTHER THIRD PARTY, INCLUDING ANY INFORMATION DISPLAYED ON THE SERVICE. YOUR INTERACTIONS WITH ANY PROVIDER (INCLUDING ANY CONSULTATIONS OR ANY PROVISION OF CARE OR OTHER INTERACTION OUTSIDE OF OUR SERVICE), INCLUDING WITH RESPECT TO DATA COLLECTED BY ENCORA’S PRODUCTS AND SERVICES, AND ANY OPINIONS, RECOMMENDATIONS, MATERIALS, OR INFORMATION MADE AVAILABLE TO YOU BY ANY PROVIDER, ARE SOLELY BETWEEN YOU AND THE PROVIDER. YOU AGREE THAT ANY PROVIDER YOU ENGAGE WITH WILL BE SOLELY AND EXCLUSIVELY RESPONSIBLE AND LIABLE FOR ALL CLINICAL DECISIONS AND INFORMATION, AND ENCORA WILL NEITHER HAVE NOR EXERCISE ANY CONTROL OR DISCRETION OVER THE METHODS BY WHICH ANY PROVIDER RENDERS ANY CLINICAL SERVICE OR ADVICE. NOTHING IN THESE TERMS SHOULD BE CONSTRUED TO ALTER OR OTHERWISE AFFECT THE LEGAL, ETHICAL, OR PROFESSIONAL RELATIONSHIPS BETWEEN AND AMONG YOU AND PROVIDERS, NOR DOES ANYTHING IN THESE TERMS ABROGATE ANY RIGHT, PRIVILEGE, OR OBLIGATION ARISING FROM OR RELATED TO THE PHYSICIAN-PATIENT RELATIONSHIP.
13.6 ENCORA IS NOT A HEALTH INSURANCE COMPANY AND DOES NOT PROVIDE YOU WITH HEALTH INSURANCE BENEFITS. YOU ARE SOLELY RESPONSIBLE FOR IDENTIFYING AND UNDERSTANDING ANY THIRD-PARTY PLANS OR BENEFITS YOU MAY HAVE THAT PERTAIN TO HEALTHCARE. ENCORA HAS NO RESPONSIBILITY TO COORDINATE WITH YOUR EMPLOYER OR ANY THIRD PARTY IN CONNECTION WITH ANY OTHER BENEFITS OR PLANS YOU MAY HAVE THAT PERTAIN TO HEALTHCARE. YOU ARE SOLELY RESPONSIBLE FOR ALL SUCH COORDINATION.
13.7 ENCORA WILL NOT BE A PARTY TO DISPUTES OR NEGOTIATIONS OF DISPUTES, INCLUDING CLAIMS OF PROFESSIONAL MALPRACTICE, BETWEEN PROVIDERS AND YOU. RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING SERVICES OFFERED VIA THE SERVICE (WITH ALL THEIR IMPLICATIONS) RESTS SOLELY WITH YOU.
13.8 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 13 (DISCLAIMERS; NO WARRANTIES BY ENCORA) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Encora does not disclaim any warranty or other right that Encora is prohibited from disclaiming under applicable law.
14.Limitation of Liability.
14.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE ENCORA ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY ENCORA ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
14.2 EXCEPT AS PROVIDED IN SECTIONS 15.5 (COMMENCING ARBITRATION) AND 15.7 (ARBITRATION RELIEF) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE ENCORA ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO ENCORA FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US$100.
14.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 (LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
15.Dispute Resolution and Arbitration.
15.1 Generally. Except as described in Section 15.2 (Exceptions) and 15.3 (Opt-Out), you and Encora agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ENCORA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
15.2 Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
15.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 15 (Dispute Resolution and Arbitration) within 30 days after the date that you agree to these Terms by sending a letter to Encora, Inc., Attention: Legal Department – Arbitration Opt-Out, 311 Summer Street, Suite 200, Boston MA 02210, that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Encora receives your Opt-Out Notice, this Section 15 (Dispute Resolution and Arbitration) will be void and any action arising out of these Terms will be resolved as set forth in Section 16.2 (Governing Law). The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
15.4 Arbitrator. This arbitration agreement, and any arbitration between us, is subject to the Federal Arbitration Act and will be administered by the JAMS (“JAMS”) under the rules applicable to consumer disputes (collectively, “JAMS Rules”) as modified by these Terms. The JAMS Rules and filing forms are available online at www.jamsadr.org, by calling the JAMS at +1-800-352-5267, or by contacting Encora.
15.5 Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Encora’s address for Notice is: Encora, Inc., 311 Summer Street, Suite 200, Boston MA 02210. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Encora may commence an arbitration proceeding. The payment of all fees will be governed by the JAMS Rules.
15.6 Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your residence unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the JAMS Rules in the county (or parish) of your residence. During the arbitration, the amount of any settlement offer made by you or Encora must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
15.7 Arbitration Relief. Except as provided in Section 15.8 (No Class Actions), the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Encora before an arbitrator was selected, Encora will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator’s award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator’s application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
15.8 No Class Actions. YOU AND ENCORA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
15.9 Modifications to this Arbitration Provision. If Encora makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Encora’s address for Notice of Arbitration, in which case your account with Encora will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
15.10 Enforceability. If Section 15.8 (No Class Actions) or the entirety of this Section 15 (Dispute Resolution and Arbitration) is found to be unenforceable, or if Encora receives an Opt-Out Notice from you, then the entirety of this Section 15 (Dispute Resolution and Arbitration) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 16.2 (Governing Law) will govern any action arising out of or related to these Terms.
16.Miscellaneous.
16.1 General Terms. These Terms, together with the Privacy Documents and any Additional Terms (defined below) are the entire and exclusive understanding and agreement between you and Encora regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms and all rights granted under these Terms, including with respect to your User Content, at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
16.2 Governing Law. These Terms are governed by the laws of the Commonwealth of Massachusetts without regard to conflict of law principles. You and Encora submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Suffolk County, Massachusetts for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Massachusetts, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
16.3 Privacy Policy. Please read the Encora Privacy Policy at: https://encoratherapeutics.com/privacy- policy (the “Privacy Policy”) and the Encora Notice of Privacy Practices at: https://encoratherapeutics.com/notice-of-privacy-practices (the “Notice of Privacy Practices”) (the Privacy Policy and the Notice of Privacy Practices, together, the “Privacy Documents”) carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Encora Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
16.4 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
16.5 Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in the applicable Privacy Document(s). Please read our Privacy Documents to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
16.6 Contact Information. The Service is offered by Encora, Inc., located at 311 Summer Street, Suite 200, Boston MA 02210. You may contact us by sending correspondence to that address or by emailing us at support@encoratherapeutics.com.
16.7 Notice to California Residents. If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
16.8 Support. Encora may use commercially reasonable efforts to provide you with support for the Service. You may contact our support by emailing support@encoratherapeutics.com.
16.9 International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is
prohibited.
17. Notice Regarding Apple. This Section 17 (Notice Regarding Apple) only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Encora only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
18. Notice Regarding Google. The following applies to any mobile application you download from the Google Play Store (“Google-Sourced Software”): (a) you acknowledge that these Terms are between you and Encora only, and not with Google, Inc. (“Google”); (b) your use of Google- Sourced Software must comply with Google’s then-current Google Play Terms of Service; (c) Google is only a provider of Google Play where you obtained the Google-Sourced Software; (d) Encora, and not Google, is solely responsible for Encora’s Google-Sourced Software; (e) Google has no obligation or liability to you with respect to Google-Sourced Software or these Terms; and (f) you acknowledge and agree that Google is a third-party beneficiary to these Terms as they relates to Encora’s Google-Sourced Software.
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