Version 2020.05.7 · Updated May 07, 2020
We reserve the right to modify these terms and will provide notice of these changes as described below. This Agreement applies to all visitors, users, and others who access or use the Service (“Users”).
1. Our Service
Your (or your significant other’s) employer (the “Employer”) has partnered with us to make fertility care more accessible and affordable for you. Through our Service, you can, among other things, use your benefit toward fertility, adoption, and gestational carrier (surrogacy) expenses from third-party care providers, schedule a chat with an expert health or wellness professional, or browse a wealth of articles and videos.
This Agreement is a contract between you and us. You may use the Service only if you can form a binding contract with us, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by us.
The Employer is not a party to this Agreement. For you to create an account on the Service (each a “User Account”), your Employer must have entered into a binding, valid, and enforceable written agreement with us (an “Employer Agreement”). You understand that your ability to use the Service is contingent on the Employer Agreement remaining effective and that, if at any time the Employer Agreement becomes ineffective (e.g., it expires or is terminated), you may no longer use the Service. To the extent the Employer Agreement contains terms that expressly supersede specific, identified terms of this Agreement to your benefit, such terms will apply to you and your use of the Service.
1.2 Limited License
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal, noncommercial use only and as permitted by the features of the Service. We reserve all rights not expressly granted herein in the Service and the Carrot Content (as defined below). We may terminate this license at any time for any reason or no reason.
1.3 User Account
You may never use another User’s User Account without permission. When creating your User Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, and you must keep your User Account password secure. You must notify us immediately of any breach of security or unauthorized use of your User Account. We will not be liable for any losses caused by any unauthorized use of your User Account.
You may control your User profile and how you interact with the Service by changing your settings on the Service. By providing us your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service, Carrot Content you may be interested in, and special offers.
1.4 Carrot Card Usage and Health Savings Account Distributions
In connection with the Service, you may be issued a Carrot Card. Any Carrot Card issued to you is the property of the card issuer (the “Issuer”, currently, Regions Bank) and is subject to cancellation by your Employer, the Issuer, the third-party service provider of Carrot Card account services (the "Third-Party Servicer", currently, Stripe, Inc.), or us, without notice and liability for any lawful reason, including if in our sole determination you violate any provision of this Agreement, or for no reason if lawfully permitted. Upon any such cancellation, you continue to be bound by this Agreement.
The Carrot Card may be used to pay for certain services available to you through the Service. By using the Carrot Card, you enter into, and agree to, additional terms and conditions of the Third-Party Servicer that govern use of the Carrot Card ("Commercial Card Program Agreement") found at https://stripe.com/card-program/legal.
If you use the Carrot Card to pay for “medical expenses” (as defined in Internal Revenue Code section 213(d)), you agree that: (i) you will not use the Carrot Card for any medical expense that has already been reimbursed, (ii) you will not seek reimbursement under any other health plan for any medical expense paid for with the Carrot Card, and (iii) you will acquire and retain sufficient documentation (including invoices and receipts) for any medical expense paid with the Carrot Card. Each time you use the Carrot Card to pay for a medical expense as defined in Internal Revenue Code section 213(d), this Agreement is reaffirmed.
You agree that you will not use the Carrot Card or otherwise seek reimbursement through Carrot for any medical expense for which you receive a tax-free distribution from a Health Savings Account (“HSA”). You understand and acknowledge that any distribution from an HSA made for an expense that was paid for with the Carrot Card or otherwise reimbursed through Carrot is not excludable from gross income.
Carrot Cards may be used only in the United States and in no other country. Your eligibility to use the Carrot Card will terminate upon your loss of eligibility for the Service.
If you use the Carrot Card, you agree that the correction procedures below, as required by the Internal Revenue Service (the “IRS”), will apply to any improper use of the Carrot Card, including any violation of this Agreement:
- Until the amount of any improper payment is recovered, we will de-activate the Carrot Card and you must request payments or reimbursements of eligible expenses through other methods (for example, by submitting receipts or invoices from a merchant or service provider of the expense to us);
- You must repay to us an amount equal to the improper payment;
- If you fail to repay the amount of the improper payment, you agree that your employer may be entitled to withhold the amount of the improper payment from your pay or other compensation, to the fullest extent allowed by applicable law;
- If any portion of the improper payment remains outstanding after attempts to recover that amount, we will apply a claims substitution or offset to resolve improper payments, such as a reimbursement for a later substantiated expense claim is reduced by the amount of the improper payment. For example, if you have received an improper payment of $200 and subsequently submit a substantiated claim for $250 incurred during the same coverage period, a reimbursement for only $50 is made; and
- If, after applying the procedures described above, we have not recouped the improper payments on behalf of your employer, you accept that your employer may, consistent with its business practice, treat the improper payment as it would any other business indebtedness.
1.5 Changes to the Service
We work constantly to improve our Service and develop new features to make our Service better for you. As a result, we may, without prior notice, need to change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason.
1.6 Service Location
The Service is controlled and operated from facilities in the United States. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government.
1.7 Information and Material You Provide to Us
By providing User Content to us, you represent and warrant to us that: (a) you have obtained, and are solely responsible for obtaining, all consents and authorizations as may be required by law to submit, post, provide, or otherwise make available to us any User Content relating to third-parties; and (b) your User Content and our use thereof as contemplated by this Agreement and the Service will not violate any applicable law or infringe any rights of any third-party, including but not limited to any intellectual property rights and privacy rights. Further, you will ensure that all User Content that you submit, post, provide, or otherwise make available to us is complete, truthful, and accurate when we receive it and, with respect to PII, you will keep such PII up-to-date at all times.
1.8 Privacy and Security
1.9 Use Restrictions
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to our servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that we grant the operators of public search engines revocable, limited permission to use spiders to copy publicly available materials from our website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (iv) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (v) uploading invalid data, viruses, worms, or other software agents through the Service; (vi) collecting or harvesting any PII from the Service; (vii) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (viii) interfering with the proper working of the Service; (ix) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (x) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
2. Our Proprietary Rights
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, and other content of any kind (collectively, “Carrot Content”), and all intellectual property rights related thereto, are the exclusive property of us and our licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such intellectual property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Carrot Content. Use of Carrot Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by its employees, or obtained from sources other than you.
3. Reimbursement Payments
Unless otherwise agreed by the parties in writing, we shall remit reimbursement payments due to you hereunder. We reserve the right to withhold a reimbursement payment in the event we determine, in our sole discretion, the expense is not eligible for reimbursement. Payment shall be made to the bank account you identify to us via the Service from time to time. To ensure proper payment, you are solely responsible for providing and maintaining accurate contact and bank information associated with your User Account, which includes without limitation applicable tax information. If we believe that we are obligated to obtain tax information and you do not provide this information to us after we have requested it, we may withhold your payments until you provide this information or otherwise satisfy us that you are not a person or entity from whom we are required to obtain tax information. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your participation in the Service. Except for disputes regarding reimbursement for “medical expenses” (as defined in Internal Revenue Code section 213(d)), if you dispute any reimbursement made hereunder, you must notify us in writing within thirty (30) days of such reimbursement or, in the case that no reimbursement has been made, within thirty (30) days of your request for reimbursement. If you dispute a reimbursement for “medical expenses” (as defined in Internal Revenue Code section 213(d)), you must notify us in writing within one hundred eighty (180) days of such reimbursement or, in the case that no reimbursement has been made, within one hundred eighty (180) days of notice that your request for reimbursement was denied. Failure to so notify us shall result in the waiver by you of any claim relating to such disputed reimbursement or reimbursement request. Reimbursement payment shall be calculated solely based on our assessment of the records you submit to us. No other measurements or statistics of any kind shall be accepted by us or have any effect under this Agreement, and you shall have no audit rights hereunder. We may withhold any taxes or other amounts from payments due to you as required by law.
4. Text Messaging
You may sign up to receive certain notifications or information relating to the Service via text messaging. These communications may include (but are not limited to): notice that your Carrot Card has been declined and notice that your Carrot Card has been deactivated. Text messages will not be used for advertising or marketing purposes. You may opt out of receiving text messages from us by replying to the text message in the manner indicated in the message, sending an email message to us at firstname.lastname@example.org, or writing to us at 47 Lusk Street, San Francisco, CA 94107. You may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges.
5. No Professional Advice
THE SERVICE MAY PROVIDE GENERAL HEALTH AND WELLNESS INFORMATION, A MEANS TO INTERACT WITH HEALTH OR WELLNESS PROFESSIONALS, OR A MEANS TO ORDER CERTAIN SUPPLEMENTS OR MEDICATIONS PRESCRIBED TO YOU. THE SERVICE DOES NOT REPLACE YOUR RELATIONSHIP WITH ANY HEALTH CARE PROVIDER, PRACTITIONER, HEALTH OR WELLNESS PROFESSIONAL OR SERVICE, AND CARROT ITSELF DOES NOT PROVIDE MEDICAL OR HEALTH ADVICE, CARE, DIAGNOSIS, OR TREATMENT. NONE OF THE CARROT CONTENT SHOULD BE CONSIDERED MEDICAL ADVICE OR AN ENDORSEMENT, REPRESENTATION OR WARRANTY THAT ANY PARTICULAR MEDICATION OR TREATMENT IS SAFE, APPROPRIATE, OR EFFECTIVE FOR YOU. IF YOU HAVE A MEDICAL EMERGENCY, IMMEDIATELY CALL YOUR DOCTOR OR DIAL 911.
6. Third-Party Materials and Interactions with Health or Wellness Professionals and Care Providers
While we use reasonable efforts to ensure that the information for Care Providers is accurate and up-to-date, we make no guarantee that such information is, in fact, accurate or up-to-date as such information is subject to change based on information we receive from such providers and other sources. These changes may affect the cost of the services you receive from such providers. Further, service descriptions for Care Providers provided via the Service are not intended to constitute offers to sell or solicitations in connection with any product or service. Not all services are available in all areas due to a variety of factors, including variations in applicable law from area to area.
Any disputes between you and a Health or Wellness Professional, or any third-party, including but not limited to Care Providers, are solely between you and the applicable Health or Wellness Professional or third-party and you agree that we have no obligation to become involved.
You agree to defend, indemnify and hold harmless us and our subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (ii) your violation of any third-party right, including without limitation any right of privacy or intellectual property right; (iii) your violation of any applicable law, rule or regulation; (iv) misleading, false, or inaccurate User Content or any other content that is submitted via your User Account; (v) your negligence or more culpable acts or omissions (including but not limited to your gross negligence, fraud, or willful misconduct); (vi) any dispute you may have with a Health or Wellness Professional, or (vii) any dispute you may have with a Care Provider.
8. No Warranty
The Service is provided on an “AS IS” and “AS AVAILABLE” basis. Use of the Service is at your own risk. To the maximum extent permitted by applicable law, the Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from us or through the Service will create any warranty not expressly stated herein. Without limiting the foregoing, we, our affiliates, and our licensors do not warrant that: (i) any content provided via the Service, including Carrot Content, is accurate, reliable or correct; (ii) the Service will meet your requirements; (iii) the Service will be available at any particular time or location, uninterrupted or secure; (iv) any defects or errors will be corrected; or (v) the Service is free of viruses or other harmful components. Any content obtained through the Service is obtained at your own risk and you will be solely responsible for any damage that results from your use of such content.
Further, without limiting the generality of Section 6 above, we do not warrant, endorse, guarantee, or assume responsibility for any third-party websites, information, materials, products, or services offered by any Health or Wellness Professional or third-party, including but not limited to Care Providers, and we are not a party to, and we will not in any way monitor, any transaction between you and any such Health or Wellness Professional or third-party.
Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under this Agreement apply to the fullest extent permissible under applicable law but will not apply to the extent prohibited by applicable law.
9. Limitation of Liability
To the maximum extent permitted by applicable law, in no event shall we, our affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, the Service.
To the maximum extent permitted by applicable law, we assume no liability or responsibility for any: (i) errors, mistakes, or inaccuracies of content, including but not limited to Carrot Content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our Service or any content available thereon, including but not limited to Carrot Content; (iii) any interruption or cessation of transmission to or from the Service; (iv) any bugs, viruses, trojan horses, or the like that may be transmitted to or through the Service by any third-party; (v) any errors or omissions in any content, including but not limited to Carrot Content, or for any loss or damage incurred as a result of the use of any content, including but not limited to Carrot Content; and/or (vi) User Content or the conduct of any third-party. To the maximum extent permitted by applicable law, in no event shall we, our affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding $100.00.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if we have been advised of the possibility of such damage.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under this Agreement apply to the fullest extent permissible under applicable law but will not apply to the extent prohibited by applicable law.
10. Arbitration, Class Waiver, Jury Trial Waiver, Governing Law
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND CARROT TO ARBITRATE DISPUTES AND LIMITS THE AVAILABILITY OF A JURY TRIAL.
Both you and Carrot agree to resolve by binding arbitration any claim, dispute, or controversy (whether based in contract, tort, statute, or any other legal theory) arising out of or in connection with or relating to (i) the Service, your use of the Service, or the information that you provide us in connection with your use of the Service, or (ii) this Agreement, including without limitation, the validity, interpretation, enforcement, or application of this Agreement and/or Section 10.1, Section 10.2, Section 10.3, Section 10.6 (collectively, “Claims”). Both you and Carrot further agree that the arbitrator will also have the exclusive authority to determine all additional threshold arbitrability issues, including without limitation issues relating to whether this Agreement is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
10.2 Class Action Waiver.
YOU AND CARROT AGREE THAT TO THE FULLEST EXTENT PERMITTED BY LAW EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT IN ANY REPRESENTATIVE CAPACITY, INCLUDING A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR ANY OTHER REPRESENTATIVE PROCEEDING WHATSOEVER. Further, unless both you and Carrot agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. Any determination about the validity, interpretation, enforcement, and/or application of this Class Action Waiver paragraph is delegated to the arbitrator.
10.3 Jury Trial Waiver.
YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND CARROT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY FOR ANY CLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW.
10.4 Arbitration Procedure.
A party who intends to seek arbitration must first send a written notice of the Claim to the other party by certified mail or Federal Express, or in the event that we do not have a physical address on file for you, by electronic mail (“Notice“). Our address for notice is Carrot Fertility, Inc., 47 Lusk Street, San Francisco, CA 94107. You and Carrot agree to use good faith efforts to resolve the Claim, but if the parties do not resolve the Claim within 30 days of the Notice, then either party may commence arbitration. Any arbitration between you and us will be governed by the American Arbitration Association (“AAA“) Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules“), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting us. Unless you and Carrot otherwise agree, the arbitration will be conducted in the county where you reside. If your claim is for less than $10,000, we will reimburse your filing fee, unless the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose, in which case the payment of all fees will be determined in accordance with the AAA Rules. If your claim is for greater than $10,000, the payment of all fees will be determined in accordance with the AAA Rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Notwithstanding anything else in this Agreement to the contrary, you and Carrot both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our rights to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, provided that is the sole form of relief sought, or (iv) to file suit in a court of law to address intellectual property infringement claims.
10.6 Governing Law and Forum Selection.
The parties agree that this Agreement evidences a transaction involving interstate commerce, and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA") and AAA Rules will govern interpretation and enforcement of this Arbitration, Class Waiver, Jury Trial Waiver, Governing Law section where applicable. All other claims, disputes, or controversies will be resolved under the laws of the State of California, without respect to its conflict of laws principles. For any claims, disputes or controversies that are not subject to mandatory arbitration under this section, you and Carrot agree that (i) the federal and state courts located in San Francisco County, California will be the sole and exclusive forum for resolution of the claim, dispute or controversy, and you and Carrot irrevocably submit to the jurisdiction of the federal and state courts located in San Francisco County, California, and (ii) litigation of any claim, dispute, or controversy proceeding in court will be stayed pending the outcome of any related individual Claim in arbitration.
You may opt out of the applicability of this Section 10 by providing us a written opt-out notice within 30 days of the ‘last modified’ date at the top of this page. This written notice must be provided by mail to Carrot Fertility, Inc., 47 Lusk Street, San Francisco, CA 94107. In order to be effective, this notice must include your full name and clearly indicate your intent to reject this Section 10.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
11.2 Notification Procedures and Changes to the Agreement.
We may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on the Service, as determined by us in our sole discretion. We reserve the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. We are not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. We may, in our sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to the Agreement. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the Service.
11.3 Entire Agreement/Severability.
This Agreement, together with any amendments and any additional agreements you may enter into with us in connection with the Service, shall constitute the entire agreement between you and us concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
11.4 No Waiver.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
11.5 California Residents.
The provider of services is: Carrot Fertility, Inc., 47 Lusk Street, San Francisco, CA 94107, telephone 510-926-2003. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
All provisions of the Agreement which by their nature should survive termination shall survive termination, including, without limitation Section 2, Section 7, Section 8, Section 9, Section 10 and Section 11.
Please contact us at email@example.com with any questions regarding this Agreement.