Terms and Conditions
Last Updated: April 6, 2017
These Terms and Conditions (the “Agreement”) are an agreement between you (“you”, “your”) and MH Sub I, LLC dba Baystone Media, and its affiliates, licensors and suppliers (collectively, "Company", "we", or "us").
We provide you with access to certain Materials (as defined below) to help you create and manage your practice. We may provide website and hosting services, general and personalized content, mobile applications, and other tools and services (each a “Service,” and collectively, the “Services”) directly and through the website and associated domains and applications of http://www.baystonemedia.com (collectively, the “Site”).
1. What We Own
All material and products available on the Site and through the Services, including, but not limited to, software, software documentation, all informational text, design of and "look and feel," layout, photographs, graphics, audio, video, messages, interactive and instant messaging, design and functions, files, documents, images, or other materials, whether publicly posted or privately transmitted as well as all derivative works thereof (collectively, the "Materials"), are owned by us or other parties that have licensed their material or provided services to us, and are protected by copyright, trademark, trade secret and other intellectual property laws. All Company trademarks and service marks, logos, slogans and taglines are the property of Company. All other trademarks, service marks, logos, slogans and taglines are the property of their respective owners. Except as otherwise specifically provided herein, nothing should be construed as granting any license or right to use any trademarks, service marks, logos, slogans or taglines displayed of Company without our express written permission, or the express written permission of such third-party that may own the trademark, service mark, logo, slogan or tagline.
2. Your Rights to Use What We Own or License
We will provide you one User ID (defined below) for each account held by you, thereby permitting you access to the Materials, unless additional User IDs are requested and approved. You agree to fully and accurately provide the information requested by us when setting up your accounts and to regularly update such information. Your failure to do so may result in the cancellation of your account and loss of Services. You further agree (a) not to provide User IDs to anyone who is not your employee, and (b) to ensure all individuals permitted to use the User IDs are aware of and have agreed in writing to comply with the terms of this Agreement.
Subject to this Agreement, we grant you a limited, revocable, non-transferable and non-exclusive license to use the Materials through a user identification reference (“User ID”) to the extent, and only to the extent, necessary to access and use the Services in accordance with the terms of this Agreement. This license does not permit you, and you agree not to store, copy, reproduce, republish, modify, upload, post, translate, scrape, rent, lease, loan, sell, distribute, transfer, transmit, display, decompile, reverse engineer, reverse assemble, decipher or otherwise attempt to discover any programming code or any source code used in or with the Materials, or otherwise distribute in any way the Materials other than as specifically permitted in this Agreement. You may not sell, assign, sublicense, grant a security interest in or otherwise attempt to transfer any right in the Materials, create derivative works based on, or in any manner commercially exploit the Materials, in whole or in part, other than as expressly permitted in this Agreement. You will not reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. Any use of the Materials for any purpose other than as specifically permitted herein or without our prior written consent or the prior written consent of our licensors, as applicable, is expressly prohibited. You further grant us the right to place disclaimers, our Company name, logo and hyperlink in the footer of your Hosted Site (defined below). We reserve all rights not expressly granted in this Agreement.
The Services may include certain third-party software and services, which may require that you enter into separate subscription or licensing agreements with third-party vendors. You will comply with and, upon request, execute, any agreements that may be required for the use of such software or services, and to comply with the terms of any license or other agreement relating to third-party products included in the Services or made accessible to you through the Services. Your use of the Services or of such third-party products or services will constitute your agreement to be bound by the terms of all licensing, subscription and similar agreements relating to such use.
You agree that the Materials available through the Services are for informational and educational purposes only and are not intended to constitute professional advice, diagnosis or treatment, or to substitute your professional judgment. We are not responsible for the accuracy or completeness of Materials available from or through the Services. You assume full risk and responsibility for the use of Materials you obtain from or access through our Services.
You will comply with all applicable laws and regulations in using the Site, Services and Materials pursuant to this Agreement, including laws, regulations, orders or other restrictions on export, re-export, or redistribution of software, and you will obtain all necessary export licenses.
If you are using our Materials featuring a model or property with a subject that would be unflattering or unduly controversial to a reasonable person, you must accompany such use with a statement that indicates that (a) the Material is being used for illustrative purposes only; and (b) any person depicted in the Content is a model.
3. What You Provide to Us
You are legally responsible for all Your Health Information (defined below), data, text, software, music, sound, photographs, graphics, video, survey responses, messages or other materials uploaded, posted or stored in connection with your use of the Services (collectively, “Content”). You are entirely responsible for all Content that you, or others to whom you provide access, send, post, or otherwise make available via the Service. You hereby grant us a worldwide, royalty-free, non-exclusive license to host and use the Content in order to provide you with the Services, and you hereby represent and warrant that you have all the rights necessary and are in compliance with all laws to grant us such license. You acknowledge that potential customers may rely upon the Content when selecting a practitioner and you agree that the Content you or your practice submits will be accurate, complete and not misleading in any respect. You are responsible for any Content that may be lost or unrecoverable through your use of the Services. You are encouraged to archive your Content regularly and frequently.
4. Monitoring What You Provide Us
We may, but have no obligation to, monitor Content created using our Services. We may disclose any information necessary or appropriate to satisfy our legal obligations, protect us or our customers, or operate the Services properly. We, in our sole discretion, may refuse to post, remove, or require you to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement. We may, in our discretion, also require you to place all or any portion of the Content behind password protection. If we have requested Content be placed, or have placed Content behind password protection, you may not publish the password or similar information in any way that limits the effectiveness of the password. If we request that you place any Content behind password protection and you fail to do so promptly, we may (a) place such Content behind password protection itself, or (b) immediately terminate this Agreement.
5. Your Conduct
You agree to and represent to us all of the following:
You represent and warrant that any Content submitted by you or your practice or transmitted by or on behalf of you will not contain any of the following:
We may determine, in our sole discretion, whether or not an account is in violation of any of these policies. Violation of any of these policies may result in user information tracking with such information being stored to identify the offending user. Offending users may be permanently restricted from holding an account or using the Services. If we determine that your account is being used for illegal or fraudulent activity then your account may be immediately terminated and your financial data erased. We may also report you to law enforcement officials in the appropriate jurisdictions. We, and our suppliers, cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 5.
6. HIPAA and Laws
In accordance with the provisions of the Health Insurance Portability and Accountability Act of 1996, and the regulations promulgated thereunder, including the Privacy Rule and Security, as amended (“HIPAA”), you agree to follow and abide to the following (all undefined terms in Sections 6, 7, 8, 9, and 10 have their meaning defined by the HIPAA regulations):
Specially Protected Information:
We apply the standards of the Privacy Rule in permitting access to the Services.
7. Our Use of Protected Health Information
Our Services may include use of your patients’ Protected Health Information that you or your personnel input or upload onto the Services or that we receive on your behalf from your authorized service providers or our third party partners (“Your Health Information”). You retain all rights with regard to Your Health Information, and we will only use such information as expressly permitted in this Agreement and our Business Associate Agreement. You authorize us, as your business associate, to use and disclose Your Health Information as follows:
8. De-Identified Information
In consideration of our provision of the Services, you hereby transfer and assign to us all right, title and interest in and to all De-Identified Information that we make from Your Health Information pursuant to Section 7. You agree that we may use, disclose, market, license and sell such De-Identified Information for any purpose without restriction, and that you have no interest in such information, or in the proceeds of any sale, license, or other commercialization thereof. You acknowledge that the rights conferred by this Section are the principal consideration for the provision of the Services, without which we would not enter into this Agreement.
9. Individuals’ Rights
You are solely responsible for affording individuals their rights with respect to relevant portions of Your Health Information, such as the rights of access and amendment. You will not undertake to afford an individual any rights with respect to any information in the Services other than Your Health Information.
10. Electronic Communications
Use of the Internet and electronic communication tools are solely at your own risk and are subject to all applicable local, state, federal, and international laws and regulations. While we have endeavored to create secure and reliable Services, please be advised that the confidentiality of any communication or material transmitted to us over the Internet, including email, cannot be assured. You acknowledge that no method of transmission over the Internet, or method of electronic storage, including email, is 100% secure.
You agree that we or our supplier may establish general practices and limits concerning use of email services, including without limitation, restricting the volume of messages transmitted or received by you in order to maintain the quality of our email services to other customers and to protect our computer systems. Email Services may not be used for bulk mail, open relay, or mass mailings, unless specifically permitted by the service provider. If bulk mail, open relay, or mass mailings are permitted through your Services, you may not use such bulk mail, open relay, or mass mailing service to send or communicate personal health information to your patients. You understand and agree that neither us nor our suppliers assume responsibility for the timeliness, deletion, mis-delivery, non-delivery or failure to store or accurately store, any user communications, addresses or personalization settings. You are responsible for third party fees, such as those from Internet service provider or airtime charges and you must provide and are responsible for all equipment necessary to access email services.
Privacy and Security Rules
The Privacy Rule allows covered health care providers to communicate electronically, such as through e-mail, with their patients, provided they apply reasonable safeguards when doing so. See 45 C.F.R. § 164.530(c).
You must ensure that any transmission of electronic protected health information is in compliance with the HIPAA Security Rule requirements at 45 C.F.R. Part 164, Subpart C and take the following precautions and when using e-mail or text Services to avoid unintentional disclosures:
You further represent:
You agree to comply with all elements of CAN-SPAM and safe sender email practices. This includes but not limited to including unsubscribe links, your full contact information in all correspondence, and not releasing private and/or confidential information. You may only use email services for those customers with which you have an existing business relationship and which have indicated that they accept correspondence from you. You may not attempt to spoof sender domains, send spam or other offending email. Because of carrier technologies, we make no expressed or implied warranty of individual message receipt. We are not liable for any issues that arise associated with the content that you provide or unforeseen liabilities of it being delivered.
10.2 Text Messages
We may automate text message communications as a Service, but you are responsible for ensuring that the recipients of those communications have provided prior express written consent to receive them. The prior express written consent must identify that you may be sending text messages related to your goods and services using automated technology and that your customer affirmatively agrees to receive such messages. The prior express consent must include your customers’ written or electronic acceptance. Specifically, by entering a cell phone number into your management system or the Company system and not opting such cell phone out of the Company text message feature, you are directing Company to automatically send text message reminders and other communications to such cell phone and certifying that the user of such cell phone consents to the receipt of those messages. For Canada based businesses, you agree to adopt the double opt-in process comprising of 1) you may only use text message services for those customers with which you have an existing business relationship and which have indicated that they accept correspondence from you and 2) the customers must reply to an opt-in message from their handset. For reliable delivery, you must adhere to message limitations including length and delivery. You are responsible for all liability for any failure to receive consent or failure to opt users out of the text message feature. Additionally, you may not attempt to spoof sender domains, send spam or other offending text messages. You will not use the text message communication services on a phone number that has been exchanged, rented or purchased from a third party without the permission of the owner of such phone number. We make no expressed or implied warranty of individual message receipt. Standard text message rates apply for all text message services. We are not liable for any issues that arise associated with the content that you provide or unforeseen liabilities of it being delivered.
11. Directory Services
We may include your Directory Information (defined below) in our (and our affiliates) (a) “Public Provider Directories,” which are electronic directories for patients and the general public; and (b) “Professional Provider Directories,” which are electronic directories for Providers and other members of the healthcare community ((a) and (b) collectively, “Provider Directories“). Provider Directories may be made available in various electronic formats, including searchable databases, Provider landing pages, interactive reference tools, and integrated look-up features, among others. They may also incorporate information designed to help users, such as integrated maps, and licensure confirmation tools, among others. Provider Directories may include a “contact” feature that allows users to contact other users directly through the Services. Our Public Provider Directory may be made available to public search engines to aid Provider discovery. Listing in the Provider Directories is subject to eligibility criteria, which may differ between the Public Provider Directory and Professional Provider Directory. If you meet the applicable criteria, some or all of your Directory Information will be automatically included in the applicable Provider Directory(ies), unless you inform us in writing that you wish to be excluded. In addition, unless you inform us in writing that you wish to be excluded from the Provider Directories, we may provide your Directory Information and your patients’ reviews of your services to our third party partners who may include your Directory Information and the patient review information on their websites. A Provider’s “Directory Information” includes the Provider’s name, name(s) of physicians or other healthcare professionals associated with a Provider, associated specialties, Provider’s business telephone number(s) and physical address(es), and the Provider’s available appointment slots, as each is indicated from information a Provider has inputted or imported into the Services. The Directory Information may include additional information you input or upload into profile tools we make available in the Services (such as a profile photograph, accepted insurance, available office hours, a front desk email address, and the like), as and when such tools are available. Upon termination of this Agreement by either party, the Business Information and any consumer reviews may remain in any data feeds provided to third parties but is subject to removal at any time as determined by us. Notwithstanding the foregoing, we are not a referral service and do not recommend or endorse any particular healthcare provider. We may use proprietary processes and algorithms to select, compile and adjust certain data to generate ratings. Ratings compiled are opinion and not statements of fact.
12. Data Consent for Services
In connection with our provision of technical support, training and other Services, you agree that we may remotely log-in to your computers, devices and systems for purposes of providing the support, training or other Services, including, without limitation, technical trouble shooting, answering questions, benchmarking and providing training to you or your personnel. Remote login may be conducted through the use of third party entities. You further agree that we may also remotely log-in at any time as necessary or appropriate to maintain our Services.
We reserve the right to log off accounts that inactive for an extended period of time.
In addition, we may quarantine suspected messages. We also may modify any domain and user settings with or without notice, including without limitation, altering settings so that spam or bulk email is denied, rather than being quarantined, to avoid space capacity issues which jeopardize the technical or economic viability of the services offered, or the system used to implement the services.
You agree that we may automatically check the version of a Service that you are utilizing and may provide updates or upgrades remotely via the Internet. You consent to the receipt of updates or upgrades by means of download to your computers and systems.
You agree to keep your computers powered on during the Services runtimes that you specify. You must add us or our third party affiliate to the “allowed” list of programs and ensure that your firewall and anti-virus software programs do not block us. Additionally, your practice management software must always be accessible by us. It is your responsibility to contact us if you are upgrading or changing your computer systems.
13. Domain Terms
If your Services include domain registration, you are subject to and agree to the Domain Names Service Agreement, which is incorporated by reference.
14. Giving Us Access to Other Accounts and Services
Some of our Services may require you to give us access to or require you to provide login information and password information for accounts or services you may have with third party providers. When you provide this information to us or give us access to these third party accounts, you agree that you have read all contracts and written agreements governing such access, login information and passwords and that you have all the necessary contractual and legal rights to give us such access, login information and passwords. In addition, for certain Services, we grant you permission to create and submit content on your behalf to press release news outlets, directories, search engines, social media outlasts, and other destinations.
15. Video Services
If you choose Video Services, this includes a documercial video up to ninety (90) seconds and pre-roll video of approximately fifteen (15) seconds in length. Videos may include the following features: footage captured on-location by single videographer (up to 2hours, for the interview style, and up to 1 hour for the voice over style), royalty-free music, professionally-recorded voiceover, text/ logo where applicable, up to two (2) rounds of revision for the ninety (90) second video.
You will approve videos via an online preview system. Such approval will be automatic if you fail to approve video ad within five (5) business days from the date of availability of the video to be previewed. Once approved, the video will be syndicated to top video sharing sites. Pre-roll video will be used in top video advertising channel (YouTube) and generate monthly views in customer’s local market. If a shoot is cancelled less than forty eight (48) hours prior to the shoot, a shoot cancellation fee may apply. Each video, and all of the content will, as between the parties, be Company’ sole and exclusive property, and Customer hereby assigns all right, title and interest in and to videos, including the Content to Company. The video is the sole property of Company, and you will have no right or license to the video until the applicable twelve (12) month agreement has been completed. After the applicable twelve (12) month agreement has been completed, Company grants you a nonexclusive, worldwide, royalty-free license to publicly perform and publicly display the video for your business purposes.
16. Call Recording
We may record calls between you and our agents regarding the Services (“Service Calls”) and in connection with Services, incoming calls, on your behalf as a Service, from, among others, your prospective clients (the “Inbound Calls” and, collectively with Service Calls, “Call Recording”). You consent to Call Recording and acknowledge you are responsible for notifying Call Recording to your employees and agents who may be recorded in a Service Call or Inbound Call (the “Recorded Persons”) and complying with all applicable laws, rules and regulations regarding call recording and privacy. It is your sole responsibility to provide and/or obtain, and you covenant that you will provide and/or obtain, all notices and permissions relating to Recorded Persons as may be required by applicable laws and regulations. You acknowledge and agree that if you collect information from Recorded Persons that may be subject to a privilege (including, but not limited to, attorney-client or doctor-patient privilege), you assume the full risk of using a third party provider for Call Recording, including any preclusion of the application of such privilege with respect to information exchanged during the Call Recording with the Records Persons.
17. Comments and Feedback
Any questions, comments, suggestions, ideas, feedback, or other information provided by you to us (“Comments”) are not confidential and you hereby grant us a worldwide, perpetual, irrevocable, royalty-free license to reproduce, display, perform, distribute, publish, modify, edit or otherwise use such Comments as we deem appropriate, for any and all commercial and/or non-commercial purposes, in our sole discretion.
18. Pre-Release or Trial Services
If the Service is a pre-commercial release or beta version (“Pre-release Service”), then this section applies. The Pre-release Service is a pre-release version, does not represent a final product from Company, and may contain bugs, errors, and other problems that could cause system or other failures and data loss and may only be used for testing purposes. We may never commercially release the Pre-release Service. We may alter features, licensing terms, or other characteristics of any version of the Pre-release Service that it releases. If you received the Pre-release Service pursuant to a separate written agreement, (“Test Agreement”) for Pre-release Service, your use of the Service is also governed by the Test Agreement. If there is a conflict between this Agreement and the Test Agreement, the Test Agreement controls. You may not disclose, publish or disseminate any information regarding the Pre-release Service to anyone, including but not limited to any new features or faults to any Internet forums. YOUR USE OF PRE-RELEASE SOFTWARE IS AT YOUR OWN RISK. SEE SECTIONS 24 AND 25 FOR WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS THAT APPLY TO THE PRE-RELEASE SERVICE.
If you registered for a trial use of the Services ("Trial Period"), you must decide to purchase the Services within the Trial Period in order to retain any Content that you have posted or uploaded during the Trial Period. If you do not purchase the Services by the end of the Trial Period, your Content will no longer be available to you. To be very clear, after using the Services during the Trial Period, if you decide not to purchase the full version of the Services, you will not be able to access or retrieve any of the data you added/created during the Trial Period.
19. Third Party Services
The Site or Services may contain links to other web sites owned by third parties ("Third Party Sites"). Please note that when you click on any of these links, you are entering another website for which we have no responsibility or control. You may also have the ability through the Site to login to accounts that you have for services provided by third parties or want to use other services that can be integrated with our Services (“Third Party Services”). We are not responsible for any activity occurring within Third Party Services, even if logged in through or linked to a Company account. You are responsible for confirming a third party’s HIPAA compliance if the third party is not our subcontractor, if applicable.
You agree that we will not be responsible for any loss or damage of any sort incurred as a result of your use of any Third Party Sites and/or Third Party Services, whether or not you were linked to or directed to a Third Party Site or Third Party Service through the Site or Service, including any HIPAA violations. You acknowledge that Third Party Sites and Third Party Services may be subject to the applicable third party provider’s terms of service, and you are solely responsible for reviewing and complying with any such terms of service. In no event will any reference on the Site to any third party, third party website or third party product or service be construed as an approval or endorsement by us of that third party, third party website or of any product or service provided by a third party.
20. Your Products and Services
Without limiting anything else in this Agreement, we may immediately remove Content related to the offer or sale of Commercial Products in violation of this Agreement. If you sell a Commercial Product using our Services, then you must, upon our request, (i) use commercially reasonable efforts to stop the delivery of the Commercial Products to the buyer, or (ii) pay a refund for such Commercial Products to the buyer.
The fees for each Service are specified in the service agreement when you purchase a Service. You will be charged for the Services on a monthly basis, unless otherwise indicated in your service agreement. Twelve (12) month minimum commitment required if stated in your service agreement. All fees and charges are nonrefundable. If you choose to cancel your Services, you are still responsible for all fees associated with the remaining duration of your service agreement.
Depending on the Services purchased, you agree to pay for the Services either via credit or debit card, ACH or within thirty (30) days of receipt of invoice. If you are paying by credit or debit card, you expressly agree that we are authorized to charge you (i) a recurring monthly fee for any applicable Services billed on a monthly basis automatically, (ii) any other fees for Services you may purchase, and (iii) any applicable taxes in connection with your use of the Services to the payment card you provide and to reimburse us for all collection costs and interest for any overdue amounts. If the payment card you provide expires and you do not provide new payment card information or cancel your account, you authorize us to continue billing you for all fees associated with the remaining duration of your service agreement and you agree to remain responsible for any uncollected fees. If your card expires or we cannot collect the fees for any reason, you have 30 days to provide a new valid credit or debit card for us to charge. If you do not provide new card information within 30 days, we will suspend the Services and will only reinstate them once you pay us what you owe plus interest which will accrue at a rate of 1.5% per month.
You agree to notify us about any billing problems or discrepancies within 90 days after they first appear on your account. If you do not bring them to our attention within 90 days, you agree that you waive your right to dispute such problems or discrepancies.
We may change fees at any time by providing you 30 days’ notice by email or through your Service portal. Your continued use of the Services after the fee change is your consent to the change.
You are allowed space and a monthly bandwidth allowance. This allowance varies depending on the hosting package you purchase. Should your account pass the allocated amount, we reserve the right to suspend the account until the start of the next allocation, suspend the account until more bandwidth is purchased at an additional fee, suspend the amount until you upgrade to a higher level package, terminate the account or charge you an additional fee for the overages. Unused bandwidth in one month cannot be carried over the next month.
22. Term and Termination
Your contract term will be specified in your service agreement. You can opt to upgrade your service agreement to any other contract agreement that we are currently offering for sale at any time during your contract term. All fees are non-refundable. If you cancel your services before the end of your contract term, you are still responsible for all fees associated with the remaining duration of the contract term. At the end of the contract term, your contract will automatically renew for additional contract term(s) of the same length until explicitly cancelled by you by providing at least 30 days’ notice prior to the end of the contract term.
We may suspend performance under or terminate this Agreement and cease transmission of data associated with your Services immediately without notice if (i) we determine in our sole discretion that you have breached any part of this Agreement including, without limitation, any warranty or obligation, (ii) your credit or debit card provider refuses payment of fees or chargers or you refuse authorization for the same, or (iii) if payment for the Services is more than thirty (30) days overdue. You agree that we will not be liable to you or any third party for any termination or suspension of your access to the Services.
We may modify, replace, refuse access to, suspend or discontinue the Services, partially or entirely, or add, change and modify prices for all or part of the Services for you or for all our users at any time and in our sole discretion. All of these changes will be effective upon their posting on the Site or by direct communication to you unless otherwise noted. We further reserve the right to withhold, remove and or discard any content available as part of your account, with or without notice, if deemed by us to be contrary to this Agreement. For avoidance of doubt, we have no obligation to store, maintain or provide you a copy of any content that you or other users provide when using the Services.
Notice of termination of Services by us may be sent to the contact e-mail associated with your account. Upon termination, we have the right to delete all data, files, or other information that is stored in your account.
Upon any expiration or termination of this Agreement, the licenses and use rights granted hereunder will immediately terminate, and you will promptly return to us all confidential information related to the Services or destroy all such materials and provide certification thereof.
23. ERRORS AND ACCESS TO SITE
YOU ARE SOLELY RESPONSIBLE FOR THE ACCURACY AND APPROPRIATENESS OF ALL DATA AND CONTENT WITHIN YOUR WEBSITE; INCLUDING ANY ELECTRONIC PERSONAL HEALTH INFORMATION. WE WILL NOT BE HELD RESPONSIBLE FOR INACCURATE INFORMATION AND ANY POTENTIAL DAMAGES CAUSED BY SUCH INACCURACIES OR YOUR BREACH OF PERSONAL HEALTH INFORMATION. YOU FURTHER UNDERSTAND THAT WE MAY NOT MAINTAIN COPIES OF FILES OR DOCUMENTS THAT ARE SENT BY YOU AND THAT YOU ARE SOLELY RESPONSIBLE FOR BACKING UP THIS DATA.
24. DISCLAIMER OF WARRANTY
THE SITE, SERVICES AND MATERIALS ARE PROVIDED “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ITS LICENSORS WARRANT THAT ACCESS TO THE SITE, THE MATERIALS AND/OR THE SERVICES AVAILABLE ON OR THROUGH THE SITE WILL MEET YOUR EXPECTATIONS, BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED; NOR DOES COMPANY OR ITS LICENSORS MAKE ANY REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, CURRENCY, QUALITY, COMPLETENESS, USEFULNESS, PERFORMANCE, SECURITY, LEGALITY OR SUITABILITY OF THE SERVICES, THE MATERIALS OR THE SITE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE AND YOUR RELIANCE UPON THE SERVICES AND/OR THE MATERIALS IS AT YOUR SOLE RISK. IN ADDITION, COMPANY IS NOT RESPONSIBLE, AND MAKES NO REPRESENTATIONS OR WARRANTIES FOR THE DELIVERY OF ANY MESSAGES (SUCH AS EMAILS, POSTING OF ANSWERS OR TRANSMISSION OF ANY OTHER USER GENERATED CONTENT) SENT THROUGH THE SITE TO ANYONE. WE HAVE NO RESPONSIBILITY OR LIABILITY FOR THE DELETION OR FAILURE TO STORE ANY MESSAGES AND OTHER COMMUNICATIONS OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE SERVICE;
YOU ACKNOWLEDGE THAT ACCESS TO THE SERVICES WILL BE PROVIDED OVER VARIOUS FACILITIES AND COMMUNICATIONS LINES, AND INFORMATION WILL BE TRANSMITTED OVER LOCAL EXCHANGE AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES, AND OTHER DEVICES (COLLECTIVELY, “CARRIER LINES“) OWNED, MAINTAINED, AND SERVICED BY THIRD-PARTY CARRIERS, UTILITIES, AND INTERNET SERVICE PROVIDERS, ALL OF WHICH ARE BEYOND OUR CONTROL. WE ASSUME NO LIABILITY FOR OR RELATING TO THE INTEGRITY, PRIVACY, SECURITY, CONFIDENTIALITY, OR USE OF ANY INFORMATION WHILE IT IS TRANSMITTED ON THE CARRIER LINES, OR ANY DELAY, FAILURE, INTERRUPTION, INTERCEPTION, LOSS, TRANSMISSION, OR CORRUPTION OF ANY DATA OR OTHER INFORMATION ATTRIBUTABLE TO TRANSMISSION ON THE CARRIER LINES. USE OF THE CARRIER LINES IS SOLELY AT YOUR RISK AND IS SUBJECT TO ALL APPLICABLE LOCAL, STATE, NATIONAL, AND INTERNATIONAL LAWS. YOU ACKNOWLEDGE THAT: A) SOME OF OUR SERVICES MAY CONTAIN AN ANTI VIRUS COMPONENT, AND THIS COMPONENT IS INTENDED TO DETECT ONLY SPECIFIC KNOWN VIRUSES AND SUME UNKNOWN BEHAVIOR PATTERNS. THERE IS NO WARRANTY THAT THE SERVICE WILL DETECT ALL VIRSUES PRESENT ON OR SENT TO YOUR COMPUTER SYSTEM, NETWORK OR EMAIL SERVER; YOUR RESPONSIBILITIES INCLUDE TO ENSURE YOU HAVE SUFFICIENT BACK-UP SYSTEMS IN PLACE; AND B) AS PURVEYORS OF SPAM ARE CONSTANTLY SEEKING TO EVADE SYSTEMS DESIGNED TO BLOCK BULK MAIL (ALSO KNOWN AS SPAM OR JUNK EMAIL), AND AS A USER MAY NOT WITH ALL BULK TO BE BLOCKED, THE BULK EMAIL COMPONENT OF THE SERVICE WILL NOT DETECT OR BLOCK ALL BULK EMAIL, AND MAY ADDITIONALLY BLOCK EMAIL WHICH YOU DID NOT WISH TO HAVE BLOCKED. THERE IS NO WARRANTY THAT THE EMAIL SERVICES WILL BLOCK ALL BULK EMAIL, OR ONLY BLOCK THE BULK EMAIL YOU DESIRE TO BE BLOCKED. WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY MODIFICATION, SUSPENSION OR DISCONTINUANCE OF THE SERVICES WHICH MAY OCCUR FOR ROUTINE MAINTENANCE, ROUTINE OR EXTRAORDINARY REPAIRS, OR THE NEED TO RESPOND TO A VIRUS OR OTHER ATTACK ON THE SYSTEM OR USING THE SYSTEM.
FURTHER, WE EXPRESSLY DISCLAIM ANY AND ALL RESPONSIBILITY AND LIABILITY WITH RESPECT TO SEPARATE AGREEMENTS YOU MAY MAKE WITH PATIENTS, CONSUMERS OR SITE USERS, AND YOU WILL LOOK SOLELY TO SUCH PERSONS AND/OR ENTITIES WITH RESPECT TO ANY AND ALL CLAIMS ARISING OUT OF SUCH AGREEMENTS. YOU WILL BE SOLELY RESPONSIBLE FOR THE PROFESSIONAL AND TECHNICAL SERVICES YOU PROVIDE. WE HAVE NO LIABILITY FOR THE CONSEQUENCES TO YOU OR YOUR PATIENTS OF YOUR USE OF THE SERVICES.
WE OFFER NO ASSURANCE THAT YOUR USE OF THE SERVICES UNDER THE TERMS OF THIS AGREEMENT WILL NOT VIOLATE ANY LAW OR REGULATION APPLICABLE TO YOU. COMPANY AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTIES THAT THE SERVICES OR THE MATERIALS OR THE SITE ARE APPROPRIATE OR AVAILABLE FOR USE IN ALL GEOGRAPHIC LOCATIONS. IF YOU USE THE SITE, THE SERVICES OR THE MATERIALS OUTSIDE THE UNITED STATES OF AMERICA, YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING WITHOUT LIMITATION EXPORT AND IMPORT REGULATIONS OF OTHER COUNTRIES.
IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT ANY DATA, INFORMATION, CONTENT OR MATERIALS CONTAINED IN OR MADE AVAILABLE IN CONNECTION WITH THE SERVICES IS NOT INTENDED AS A SUBSTITUTE FOR, THE KNOWLEDGE, EXPERTISE, SKILL AND JUDGMENT, TAX, LEGAL OR OTHER PROFESSIONALS. THE SERVICES DO NOT PROVIDE TAX OR LEGAL ADVICE. YOU ARE RESPONSIBLE FOR OBTAINING SUCH ADVICE.
25. LIMITATION OF LIABILITY
NEITHER WE, NOR OUR LICENSORS OR AFFILIATES ARE LIABLE TO YOU OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY PERSONAL INJURY, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF GOODWILL PROGRAMS OR OTHER DATA ON YOUR COMPUTER OR OTHERWISE) ARISING FROM OR IN CONNECTION WITH USE OF THE SITE, THE SERVICES, THE MATERIALS, YOUR CONTENT, THE COMMERCIAL PRODUCTS OR ANY THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE, WHETHER UNDER A THEORY OF BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MALPRACTICE OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU HEREBY RELEASE COMPANY AND HOLD COMPANY AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, AND THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, TRUSTEES, AFFILIATES, SUBCONTRACTORS, AGENTS AND EMPLOYEES, HARMLESS FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND AND NATURE (INCLUDING, WITHOUT LIMITATION, ACTUAL, SPECIAL, INCIDENTAL AND CONSEQUENTIAL), KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES, MATERIALS, SITE, YOUR CONTENT, COMMERCIAL PRODUCTS OR ANY THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGHTHE SITE. YOU HEREBY WAIVE THE PROVISIONS OF ANY STATE OR LOCAL LAW LIMITING OR PROHIBITING A GENERAL RELEASE. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING EXCLUSIONS OF LIABILITY, COMPANY, ANY OF ITS AFFILIATES OR LICENSORS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, OR AGENTS IS LIABLE TO YOU FOR ANY AMOUNTS UNDER THIS AGREEMENT UNDER ANY THEORY OF RECOVERY, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, COMPANY’S TOTAL LIABILITY, IN RESPECT OF SUCH AMOUNTS, WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY YOU FOR THE SERVICES UNDER THIS AGREEMENT FOR SIX (6) MONTH PERIOD PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM.
26. EXCLUSIVE REMEDY
IN THE EVENT OF ANY PROBLEM WITH THE SITE, THE SERVICES, OR THE MATERIALS, YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING THE SITE, THE SERVICES AND THE MATERIALS. UNDER NO CIRCUMSTANCE WILL COMPANY, ITS AFFILIATES, OR LICENSORS BE LIABLE IN ANY WAY FOR YOUR USE OF THE SITE, THE SERVICES, THE MATERIALS, YOUR CONTENT, THE COMMERCIAL PRODUCTS OR THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS, ANY INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF THIRD PARTIES, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF, OR RELATED TO, THE USE OF THE SITE, THE SERVICES, THE MATERIALS, YOUR CONTENT, THE COMMERCIAL PRODUCTS OR ANY THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you. In such event, our liability under this Agreement will be limited to the greatest extent permitted by applicable law in such jurisdiction.
You agree to indemnify, hold harmless, and defend Company and its shareholders, licensors, suppliers, officers, directors, employees, agents, affiliates, subsidiaries, partners, co-branders, successors and assigns (collectively "Indemnified Parties") from and against any and all liability, loss, claim, damages, expense, or costs (including but not limited to attorneys' fees), incurred by or made against the Indemnified Parties in connection with any claim arising from or related to (i) your use (or anyone using your account’s) use of the Services, the Site or the Materials, (ii) your Content, (iii) your breach of this Agreement, including any of your representations and warranties; (iv) your contravention of any applicable law, statute, ordinance or regulation, including, but not limited to, the CAN-SPAM Act of 2003, privacy laws and HIPAA, or (v) any Commercial Products you offer on or through the Site or using our Services. This includes, but is not limited to, any breach or violation of this Agreement by you or anyone utilizing your account. You agree to fully cooperate at your expense as reasonably required by an Indemnified Party. Each Indemnified Party may, at its election, assume the defense and control of any matter for which it is indemnified hereunder. You shall not settle any matter involving an Indemnified Party without the consent of the applicable Indemnified Party.
We may update or change the Services or the terms set forth in this Agreement from time to time and recommend that you review the Agreement on a regular basis. You understand and agree that your continued use of the Services after the Agreement has been updated or changed constitutes your acceptance of the revised Agreement. Without limiting the foregoing, if we make a change to the Service that materially affects your use of the Services, or we modify the terms of this Agreement, we will notify you of any such change. No modifications of this Agreement will be effective unless agreed in writing by Company.
We may also, in the future, offer new services and/or features through Site (including the release of new tools and resources). For the avoidance of doubt, such new features and/or services will be subject to the terms and conditions of this Agreement.
29. Dispute Resolution; Arbitration
Before initiating any arbitration proceeding, the parties will first discuss the matter informally for at least 30 days. If the parties are unable to mutually agree upon a resolution during the 30-day period, then any claim regarding this Agreement and/or the Services will be resolved through binding arbitration administered by JAMS and governed by the then current JAMS Streamlined Arbitration Rules and Procedures. It is important that the parties address any issues promptly. Regardless of any statute or law to the contrary, an arbitration proceeding for any claim or cause of action must be brought within one (1) year after such claim or cause of action arose or such claim is waived. As an exception to this arbitration agreement, the parties have the right to pursue in small claims court any claim that is within that court's jurisdiction as long as such party proceeds only on an individual basis.
The parties agree to arbitrate with only in their individual capacity, not as a representative or member of a class. No claims may be joined with any other claims and there will be no authority for any dispute to be arbitrated on a class-action basis or brought by a purported class representative.
Arbitration will be exclusively held in Los Angeles County, California and each party will be responsible for its own costs, including paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. In order to select an arbitrator, each party will provide a list of two available arbitrators that have experience with the subject matter of the dispute. Each party may strike one of the names on the other party’s list. The parties will select an arbitrator out of the remaining two arbitrator names. If the parties cannot mutually agree on one arbitrator, JAMS will choose the arbitrator randomly from the two remaining arbitrators. The arbitrator's decision will be binding and may be entered as a judgment in any court of competent jurisdiction. By entering into this Agreement, each parties acknowledges that such party has had the opportunity to have their legal counsel review this Agreement and that such party fully understand the terms and conditions set forth herein and the effect of entering into this Agreement.
30. Governing Law; Jurisdiction
This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to the principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. For any claims, causes of action or disputes arising out of this Agreement which are not subject to Section 17 (Dispute Resolution), each of the parties irrevocably consents to the exclusive jurisdiction and venue in the federal and state courts located in the County of Los Angeles, State of California and waives the right to challenge the jurisdiction of such courts on grounds of lack of personal jurisdiction or forum non conveniens or to otherwise seek a change of venue. The aforementioned choice of venue is intended by the parties to be mandatory, and not permissive, in nature. Regardless of any statute or law to the contrary, any such claim or cause of action must be filed within one (1) year after such claim or cause of action arose or be forever barred. All claims not subject to Section 29 (Dispute Resolution; Arbitration) must be resolved in accordance with this Section 30. All claims filed or brought contrary to this Section will be considered improperly filed. Should either party file a claim contrary to this section, the non-filing party shall be entitled to seek to recover reasonable attorneys’ fees and costs provided that the non-filing party has notified the filing party in writing of the improperly filed claim and the filing party has failed to properly withdraw the claim.
A printed version of this Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
32. Copyright Complaint Policy
If you believe any Materials infringe your copyrighted works, you may provide a notification of claimed copyright infringement to our Designated Agent for copyright complaints. Please see our Copyright Complaint Policy for further information.
You acknowledge that a violation or attempted violation of any of this Agreement will cause such damage to Company as will be irreparable, the exact amount of which would be impossible to ascertain and for which there will be no adequate remedy at law. Accordingly, you agree that Company will be entitled as a matter of right to an injunction issued by any court of competent jurisdiction, restraining such violation or attempted violation of these terms and conditions by you, or your affiliates, partners, or agents, as well as to recover from you any and all costs and expenses sustained or incurred by Company in obtaining such an injunction, including, without limitation, reasonable attorney's fees. You agree that no bond or other security will be required in connection with such injunction.
In no event shall you be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of Company, the exploitation of any advertising or other materials issued in connection therewith, or the exploitation of the Site or any content used or displayed through the Site.
34. Terms You Must Post on Your Site
This Agreement supersedes any written, electronic, or oral communication you may have had with us or any agent or representative thereof, and constitutes the complete and total agreement between the parties. If any portion of this Agreement is found to be unenforceable, the remaining portion will remain in full force and effect. If we fail to enforce any of this Agreement, it will not be considered a waiver. You will not transfer any of your rights or obligations under this Agreement to anyone else without our prior written consent. All of our rights and obligations under this Agreement are freely assignable by us in connection with a merger, acquisition, or sale of assets, or by operation of law, corporate restructure, to any affiliate or otherwise. This Agreement does not confer any third party beneficiary rights. Each party is an independent contractor and not a partner or agent of the other. This Agreement does not create an agency, partnership or joint venture and does not impose partnership or agency obligations or liability upon either party. The section titles in these terms and conditions are for convenience only and have no legal or contractual effect. All notices and other communications required or permitted to be given by us to you under this Agreement will be deemed to be properly given on the date when sent to your email address or postal address recorded for your account. All notices and other communications required or permitted to be given by you to us under this Agreement will be deemed to be properly given on the date when sent by postal mail or private courier to 909 N. Sepulveda Blvd., 11th Floor, El Segundo, CA 90245, Attention: Legal Department.