Effective Date: May 10, 2022
IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, YOU SHOULD DIAL “911” IMMEDIATELY. Our Services are not intended to address medical emergencies, and you should not disregard or delay seeking medical advice based on anything that appears or does not appear on or within our Services.
By accessing or using our Services, you represent that (i) you are of legal age to enter into this Agreement and (ii) if you represent, or are otherwise using our Services on behalf of, a legal entity (e.g., a company or your employer), you have the legal authority to bind such legal entity to this Agreement. If you are using our Services on behalf of, or for the benefit of, any other person (a “Beneficiary”), you represent that you have the legal authority to bind such Beneficiary to this Agreement, and, if you do not have such legal authority, such Beneficiary will not access, use or otherwise benefit from our Services.
We may update or modify this Agreement or our Services at any time, in Company’s sole discretion, and may notify you of such changes by any reasonable means, including by posting the latest version of this Agreement to the Site or the Applications or by contacting you via the e-mail associated with your account. Any change to this Agreement will not apply to any dispute between you and Company arising prior to the date on which we posted the applicable changes or otherwise notified you of such changes. The “Effective Date” noted above indicates when this Agreement was last changed. You agree to periodically review this Agreement to determine if this Agreement has been changed. Your continued access or use of our Services following any change to this Agreement shall constitute acceptance of the latest version of this Agreement.
Notwithstanding the foregoing, this Agreement does not govern any medical or healthcare services offered by any third-party Provider (as defined below) or your use of other websites, mobile applications or services operated by any affiliate of Company or any third party.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
2. OTHER AGREEMENTS, TERMS AND CONDITIONS
If you enter into any other written agreement with Company, including without limitation, a partner, provider or customer services agreement then this Agreement is in addition to the terms of such other agreement; however, in the event of a conflict between the terms of this Agreement and the terms of such other agreement, the terms of such other agreement shall govern.
PLEASE NOTE THAT ADDITIONAL TERMS AND CONDITIONS, DISCLOSURES, DISCLAIMERS, RISKS AND POLICIES ASSOCIATED WITH OUR SERVICES ARE OUTLINED BELOW, INCLUDING WITHOUT LIMITATION CERTAIN TERMS AND CONDITIONS THAT MAY OR MAY NOT BE APPLICABLE TO CERTAIN USERS OR CERTAIN FEATURES, FUNCTIONALITY OR PORTIONS OF OUR SERVICES. FOR EXAMPLE:
Medical and Telemedicine Disclaimers: Before using our Services, please review the Medical Disclaimers and Telemedicine section below.
Eligibility for Certain Services: Accessing or using our Services does not guarantee that you are eligible to receive all services offered or obligate us or any Provider to provide any service to you. Based on the program inclusion criteria, but we reserve the right, in our sole discretion, to determine whether and to what extent you are eligible to access or utilize any of our Services. If you are ineligible to receive any service, we reserve the right, at our option and in our sole discretion, to refer you to a primary care provider.
Terms and Conditions Applicable to Certain Users: Certain terms and conditions of this Agreement (including certain Services or certain features, functionality or portions of our Services) may be applicable only to certain users, including without limitation, registered users, Providers, and Company’s partners, suppliers or vendors.
Additional Terms and Conditions: There may be additional terms and conditions that are on the Site, the Applications or otherwise made available to you (e.g., when additional terms and conditions are e-mailed to you) in connection with our Services, and all such additional terms and conditions are incorporated herein by reference.
3. WHO MAY ACCESS THE SITE AND THE SERVICES?
Company operates subject to state and federal laws, rules and regulations, and our Services may not be available in your location. By accessing or using our Services, you represent that you are not a person barred from enrolling for and/or receiving our Services under the laws of the United States or other applicable jurisdictions in which you may be located. Accessing or using our Services from jurisdictions where such content or services is illegal, or where we do not offer services, is expressly prohibited.
You are responsible for both: (i) making all arrangements necessary for you to have access to our Services; and (ii) ensuring that all persons who access our Services through your internet connection, mobile device and/or account are aware of this Agreement and comply with its terms and conditions.
Your access to our Services may be revoked by Company at any time with or without cause, including without limitation, if Company has a reasonable belief that you may have violated any term or condition of this Agreement.
4. ACCOUNT ENROLLMENT AND CONSENT TO SERVICES
To access certain features, services or Providers (as defined below) using the Services, you must first establish an account. Member agrees that they will not create more than one account or create an account for anyone other than yourself (with the exception of administrators and care managers established for Beneficiaries of whom you are a parent or legal guardian.
You agree to fully, accurately, and truthfully create your account (including any information that you provide to Company via our Services), and you represent that any information provided to Company in connection with our Services is true, complete and accurate in all materials respects.
5. SECURITY RESTRICTIONS AND CREDENTIALS
Any log-in credentials, usernames and passwords, whether provided by Company or created by you (collectively, “Credentials”), are personal to you, and you are solely responsible for maintaining the confidentiality of your Credentials and for all activity associated with your Credentials. You agree to prohibit anyone else from using your Credentials and agree to immediately notify Company of any actual or suspected unauthorized access to or use of your Credentials or other security concerns of which you become aware.
You are prohibited from violating or attempting to violate the security of our Services, including without limitation: (i) accessing data or information not intended for you or logging onto a server or an account which you are not authorized to access; (ii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (iii) accessing or using our Services or any portion thereof without authorization, in violation of this Agreement or in violation of any applicable law, rules or regulation.
We will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of our Services or any activity being conducted on or through our Services, including without limitation, through the use of any scraper, crawler, spider, robot or other automated means of any kind to access or copy data on or available through our Services, deep-linking to any feature or content on or available through our Services, or bypassing measures we may use to prevent or restrict access to our Services.
6. HIPAA ACKNOWLEDGEMENT
We respect and uphold patient confidentiality with respect to protected health information (“PHI”) as outlined by the Health Insurance Portability and Accountability Act (“HIPAA”), and, subject to HIPAA regulations, will obtain express patient authorization prior to sharing any patient-identifiable information to a third party for purposes other than treatment, payment or health care operations. In addition, by checking the box, clicking “I AGREE,” or otherwise consenting to this Agreement, you are authorizing Providers, insurers and other third parties to use and disclose your contact information to Company in order for Company to provide you with information about additional clinical services or general wellness. You may opt out of receiving such information by contacting us at [email@example.com].
7. MEDICAL AND TELEMEDICINE DISCLAIMERS
OUR SERVICES ARE SIMPLY TOOLS TO BE USED TO ASSIST IN COORDINATION OF CARE. THE INFORMATION PROVIDED THROUGH OUR SERVICES IS NOT INTENDED AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, CLINICAL EXPERTISE, PROFESSIONAL MEDICAL ADVICE, EXAMINATION, DIAGNOSIS, OR TREATMENT.
Providers: Our Services are a venue for general information and communication purposes only and intended to facilitate communication between you and other healthcare and medical professionals, including without limitation, doctors, physicians, nurse practitioners, nurses, physician assistants and other healthcare service providers (“Providers”).
Some Providers are independent third parties unaffiliated with Company that utilize our Services to communicate with you. Any information or advice received from a Provider comes from such Provider, and not from Company. Your interactions with Providers via our Services are not intended to take the place of your relationship with your regular healthcare providers. Company will not be responsible or liable for any repercussions arising from compromised data, information, images, audio, video or material supplied by you, and you are responsible for the integrity, accuracy, completeness and quality of the submissions supplied.
Company will not obtain, nor does it intend to qualify for any professional healthcare or medical license or approval of any kind to provide access to our Services. Company does not make any representations or warranties about the training or skill of any Providers using the Services, and you understand and agree that Company does not evaluate the quality of care provided by any Provider.
Neither Company nor any of its licensors or suppliers or any third parties who promote our Services or provide you with a link to our Services shall be liable for any professional or medical advice or service you obtain via our Services nor for any information obtained from our Services. Members are ultimately responsible for choosing your particular Provider and maintaining your own medication and healthcare regimens. You acknowledge your reliance on any Provider or information provided by our Services is solely at your own risk and you assume full responsibility for all risk associated therewith.
No Medical Advice; No Patient-Doctor Relationship. Content available and provided through our Services are to be used for general information purposes only, not as a substitute for in-person evaluation or specific medical advice. Company will not give users a list of all of the significant risks and considerations necessary to make an informed written consent regarding any treatment. Complete information, including the risks and benefits of a particular medication or treatment, may only be obtained from, and an informed written consent may only be provided to, a duly licensed and qualified medical professional responsible for you or your Beneficiary’s care and treatment.
YOU ACKNOWLEDGE THAT ALTHOUGH SOME OF THE CONTENT THAT IS PROVIDED TO YOU THROUGH OUR SERVICES IS MEDICAL IN NATURE, IT DOES NOT CREATE A MEDICAL PROFESSIONAL-PATIENT RELATIONSHIP AND DOES NOT CONSTITUTE AN OPINION, MEDICAL ADVICE, EXAMINATION, DIAGNOSIS OR TREATMENT OF ANY PARTICULAR CONDITION. NO PATIENT-DOCTOR OR OTHER PROFESSIONAL RELATIONSHIPS SHALL BE FORMED ON OR THROUGH USE OF OUR SERVICES.
Communications Not Privileged: Communications on or through our Services are not the subject of any particular privileges, including, without limitation, the doctor-patient privilege. Communications on or through our Services are limited, do not involve in-person evaluations or visits, and do not include safeguards and procedures typical of in-person evaluations by and visits with healthcare professionals.
Telemedicine: Telemedicine involves the use of communications to enable Providers at sites remote from patients to provide healthcare services. Your communications with Providers may be used for diagnosis, therapy, follow-up and/or education, and may include live two-way audio and video and other materials (e.g., data from medical devices).
The communications systems used will incorporate reasonable security protocols to protect the confidentiality of patient information and will include reasonable measures to safeguard the data and to ensure its integrity against corruption or unauthorized access or disclosure; however, no safeguards are perfect and the security of your information depends, in large part, on you and the security of your computer systems and networks.
As with any healthcare consultation or medical procedure, there are potential risks associated with the use of telemedicine. These risks may include without limitation: (i) delays in medical evaluation, consultation, or treatment may occur due to deficiencies or failures of computer and telecommunication equipment; (ii) security protocols could fail, causing a breach of privacy of personal information, including without limitation PHI or patient-identifiable information.
By accepting and agreeing to this Agreement, you acknowledge and agree with the following:
The laws that protect privacy and confidentiality of medical information also apply to telemedicine, and you have received the HIPAA Acknowledgement, which explains these issues in greater detail.
Telemedicine may involve electronic communication of my personal medical information to Providers who may be located in other areas, including out of state.
Although telemedicine has numerous potential benefits, no results can be guaranteed or assured.
Your personal medical information may be shared with others (including Providers and insurers) for treatment, payment, and healthcare operations purposes.If you obtain healthcare services from a Provider, your Provider has the right to limit the information provided to you if in your Provider’s professional judgment sharing the information with you could be harmful to you.
YOU HAVE READ AND UNDERSTAND THE INFORMATION PROVIDED ABOVE, AND UNDERSTAND THE RISKS OF TELEMEDICINE, AND BY ACCEPTING THIS AGREEMENT YOU HEREBY GIVE YOUR INFORMED CONSENT TO PARTICIPATE IN TELEMEDICINE VISIT UNDER THE TERMS DESCRIBED HEREIN.
8. ELECTRONIC COMMUNICATIONS
When you send emails or other electronic messages to us or in connection with our Services, you are communicating with us electronically and consent to our review and analysis of such messages and to receive return communications, if any, from us electronically. You acknowledge and agree that (i) all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing; and (ii) your consent and agreement via electronic means (e.g., electronic signatures, checking the box, or clicking “I Accept”) satisfy any legal requirement for a signature or affirmative consent.
9. TELEPHONE, TEXT AND FAX POLICY
By providing your residential or wireless telephone and/or fax number to Company, you expressly consent to receiving marketing and non-marketing calls including autodialed and/or prerecorded calls, text messages and faxes from or on behalf of Company at the number(s) provided. Consent may be revoked at any time by sending an opt-out request via email to [firstname.lastname@example.org] with the number(s) you wish to opt-out. Please note your service provider’s standard message and data rates may apply to such communications.
10. OWNERSHIP OF OUR SERVICES AND RELATED MATERIALS
Our Services and their respective contents, features and functionality (including without limitation, all information, files, software, text, displays, images, video, audio and any materials accessed through or made available for use or download through our Services and the design, selection and arrangement thereof (collectively, the “Content”)) are owned by Company, its licensors or its suppliers, as applicable, and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
Subject to your compliance with this Agreement, Company grants to you, solely for so long as you are permitted to use the Site, a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access, use, and display the Site (including any Content generally made available through the Site) solely for your personal, non-commercial use. No title, rights, or interests in any Content made available by the Site are afforded to you.
The Applications are licensed not sold to you. Subject to your compliance with this Agreement, Company grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to: (i) download, install and use the Applications for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with this Agreement and the Application’s documentation; and (ii) access, stream, download and use on such Mobile Device the Content and the services made available in or otherwise accessible through the Applications, strictly in accordance with this Agreement.
Company may from time to time in its sole discretion develop and provide updates for the Applications, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You shall promptly download and install all Updates and acknowledge and agree that the Applications or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the applicable Application and subject to all terms and conditions of this Agreement.
Copying, publishing, broadcasting, re-broadcasting, webcasting, transmitting, modifying, deleting, augmenting, distributing, downloading, storing, reproducing, sublicensing, adapting, creating derivative works of any Content available through our Services, or posting or otherwise making available such Content (including portions thereof) in any manner on any network computer, broadcast media, or other technologies existing now or hereinafter developed for unauthorized publication or commercial use without the prior written consent of Company is strictly prohibited. You hereby agree not to reproduce, duplicate, copy, sell, resell, decompile, disassemble, or exploit for any purpose, other than for your personal, non-commercial use, our Services (including any portion thereof) or the use (including any access to) thereof, or to collect any information about visitors or users of our Services, or otherwise systematically download and store Content. To the extent that you are authorized to download or print any materials via our Services, any such downloaded or printed materials will be for your own personal, non-commercial use only.
Company’s trademarks, logos or copyright notices may not be deleted or altered in any way. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Company without our express written consent. You may not use any meta tags or any other “hidden text” utilizing Company’s name or trademarks without the express written consent of Company.
You represent, warrant, and agree that you will not send, upload, post, reproduce, transmit, or distribute any communication, content, or material of any type through our Services that infringes or violates any rights of any party or violates this Agreement.
If you submit or otherwise provide to Company any communications, content, or material, including, without limitation, any personal or commercial information, idea, concept, or invention, you hereby irrevocably grant to Company an unrestricted, worldwide, perpetual, irrevocable, transferable, sublicensable (through multiple tiers), royalty-free license to use, reproduce, display publicly, perform, publish, transmit, distribute, and otherwise exploit such materials and information in any medium and for any purpose, and you further agree that Company is free to use any ideas, concepts, or know-how that you or individuals acting on your behalf provide to Company in accordance with the foregoing license grant. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship regarding materials, ideas, concepts, or know-how provided to Company that you may have under any applicable law under any legal theory.
All rights not expressly granted to you in this Agreement are reserved and retained by Company or its licensors, suppliers, publishers, or other content providers.
11. ACCURACY OF INFORMATION AND HEALTH CONTENT
Although we attempt to ensure the integrity and accurateness of our Services and their respective Content, Company makes no representations, warranties or guarantees whatsoever as to the correctness or accuracy of our Services or their respective Content. It is possible that certain Content includes errors, inaccuracies or other errors and that unauthorized additions, deletions and alterations could be made by third parties. As a result, Company shall have no responsibility or liability for Content posted by any third party. In the event an inaccuracy arises, please inform Company so that it can be corrected.
CERTAIN CONTENT INCLUDES INFORMATION AND RESOURCES THAT GENERALLY DESCRIBE HEALTHCARE PRINCIPALS (“HEALTH CONTENT”) AND SUCH HEALTH CONTENT SHOULD NOT, IN ANY EVENT, BE CONSTRUED AS SPECIFIC INSTRUCTIONS FOR INDIVIDUAL PATIENTS. Any Health Content is not intended for self-medication or as a substitute for proper medical advice, diagnosis, or treatment. Any Health Content is for reference only and should not be used to determine treatment for specific medical conditions. You should never disregard, avoid or delay obtaining medical advice from a licensed healthcare provider because of information made available through our Services. Any educational or health related information and resources are not intended and must not be taken as the rendering of medical, nursing, or professional healthcare advice or services, or the practice of medicine, nursing, or professional health care in any jurisdiction. You should discuss the information provided with a physician, nurse, pharmacist, or other licensed healthcare professional. You should also check product information (including package inserts) regarding dosage, precautions, warnings, interactions, and contraindications before taking or using any device, drug, herb, vitamin, or supplement discussed on or available through our Services.
You understand and agree that neither Company nor its affiliates are responsible for any claim, loss, or damage directly or indirectly resulting from your use of our Services or the information contained on or accessible through our Services.
Proper treatment of health conditions depends upon a number of factors, including, but not limited to, your medical history, diet, lifestyle, and medication regimen. Your healthcare provider can best assess and address your individual healthcare needs. You should consult with your healthcare provider before starting a new diet, fitness, or supplement regimen.
Information and statements about dietary supplements have not been evaluated by the U.S. Food and Drug Administration and are not intended to diagnose, treat, cure, mitigate, or prevent any disease or health condition. References to or descriptions or images of products or services on or available through our Services should not be interpreted as endorsements of such products or services whether such products or services are made available by Company or by third parties, and Company does not endorse manufacturers’ or third parties’ claims about the efficacy of any product or service. We disclaim any representation, guarantee or warranty, express or implied, with respect to any products or services sold, including any warranty of merchantability or fitness for a particular purpose. No information conveyed by Company, its employees or any Provider, either orally or in writing, shall create such a warranty.
Company does not provide any form of insurance. The inclusion of information about any particular service or product on or available through our Services does not indicate anything about whether any insurance plan may or may not provide benefits with respect to such services or products.
12. LINKS TO OTHER WEBSITES
Company makes no representations whatsoever about any other website that you may access through our Services. When you access a non-Company website, please understand that it is independent from Company, and that Company has no control over the content on that website. In addition, a link to a non-Company website does not mean that Company endorses or accepts any responsibility for the content, or the use, of the linked website or any products or services offered via such website. If you decide to access any of the third-party websites linked to on or through our Services, you do this entirely at your own risk, and we reserve the right to terminate such links or access at any time.
13. LINKING TO OUR SERVICES
Subject to the provisions related to social media features immediately below, you must not: (i) establish a link from any website that is not owned by you; (ii) cause our Services or portions of the foregoing to be displayed on, or appear to be displayed by, any other website, for example, framing, deep linking, or in-line linking; or (iii) otherwise take any action with respect to the Content on or available through our Services that is inconsistent with any other provision of this Agreement. In addition, the website from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in this Agreement.
14. SOCIAL MEDIA FEATURES
Our Services may provide certain social media features that enable you to: (i) link from your own or certain third-party websites to certain content on or available through our Services; (ii) send emails or other communications with certain content, or links to certain content, on or available through our Services; or (iii) cause limited portions of content on or available through our Services to be displayed or appear to be displayed on your own or certain third-party websites.
You may use these features solely as they are provided by us, and solely with respect to the Content they are displayed with, and otherwise in accordance with any additional terms and conditions we or third parties provide with respect to such features. We may disable all or any social media features and any links at any time without notice in our discretion.
You agree to defend, indemnify, and hold harmless Company, its licensors, their respective affiliates, and each of their respective officers, managers, directors, employees and/or agents from and against any and all rights, demands, losses, liabilities, damages, claims, causes of action, actions, orders, proceedings and suits (no matter whether at law or equity), fees, costs, or expenses of any kind whatsoever (including attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers) arising directly or indirectly out of or in connection with: (i) your use or misuse of our Services or their respective Content; (ii) your breach of this Agreement; (iii) any information you provide to Company or any Provider via our Services (including without limitation your rights to, and the right to share or disclose, such information); and/or (iv) any negligent (including gross negligence) or wrongful act or omission (including any intentional act, fraud, willful misconduct or violation of applicable laws, rules or regulations) by you in your use or misuse of our Services or their respective Content, including without limitation, infringement, violation or misappropriation of third party intellectual property, proprietary and/or privacy rights.
This Agreement is effective until terminated by either party. If you no longer agree to be bound by this Agreement, you must cease your use of our Services including any access thereto. If you breach any provision of this Agreement, then you may no longer use our Services. Company may at any time and for any reason, with or without cause, and in their sole discretion, immediately: (i) suspend or terminate (in whole or in part) your authorization to use our Services and any account you may have; (ii) suspend or terminate and permanently delete and destroy any user ID, password, URL, IP address, or domain name; and (iii) prohibit you from any future use of our Services; all without any prior notice or liability to you or any other person.
If this Agreement is terminated for any reason, then: (a) this Agreement will continue to apply and be binding upon you in respect of your prior use of our Services (and any unauthorized further use of our Services), and (b) any rights or licenses granted to Company under this Agreement will survive such termination.
17. DISCLAIMER OF WARRANTIES
COMPANY DOES NOT WARRANT THAT ACCESS TO OR USE OF OUR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN OUR SERVICES WILL BE CORRECTED. OUR SERVICES, THEIR RESPECTIVE CONTENT, AND THIRD PARTY CONTENT AND SOFTWARE ACCESSIBLE VIA OUR SERVICES, ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE/NON-INFRINGEMENT AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.
WITHOUT LIMITING THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT OUR SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR THAT OUR SERVICES OR FILES AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER DESTRUCTIVE PROGRAMMING. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACK UP AND SECURITY.
Company does not accept any liability for the consequences arising from the application, use, or misuse of any Content contained on or available through our Services, including any injury and/or damage to any person or property as a matter of product liability, negligence, or otherwise. Company further disclaims any responsibility for the accuracy, reliability, currency, availability, or completeness of any information or materials found on any third-party sites that link to or from our Services. Company also does not accept any responsibility for technical failures or for unauthorized access of user’s transmissions, information or materials by third parties.
Your use of (including any access to) our Services and any other websites or mobile applications, including any Content on or available through them, is solely at your own risk.
Without limiting the generality of the foregoing, Company makes no representation or warranty that any password protection or other security measures that you may use or allow others to use in connection with our Services will prevent unauthorized access, or that any information will not be accessed or misused by any other party.
18. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY OR ITS VENDORS, OR ITS OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, AFFILIATES, SUPPLIERS, VENDORS, LICENSORS, CO-BRANDERS, OR PARTNERS (COLLECTIVELY, THE “MODOSLEEP PARTIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER RESULTING FROM ANY LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, BUSINESS INTERRUPTION, LITIGATION, OR ANY OTHER PECUNIARY LOSS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE, OPERATION, OR PERFORMANCE OF OUR SERVICES, WITH THE DELAY OR INABILITY TO USE OUR SERVICES, ANY DEFECTS IN OUR SERVICES, OR WITH THE PROVISION OF, OR FAILURE TO MAKE AVAILABLE, ANY INFORMATION, SERVICES, PRODUCTS, MATERIALS, OR OTHER RESOURCES AVAILABLE ON OR ACCESSIBLE THROUGH OUR SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE OPERATION OF OUR SERVICES MAY BE AFFECTED BY NUMEROUS FACTORS BEYOND COMPANY’S OR ITS VENDORS’ CONTROL. THE OPERATION OF OUR SERVICES, WHETHER BY COMPANY, OR ITS VENDORS, MAY NOT BE SECURE. SECURITY AND PRIVACY RISKS CANNOT BE ELIMINATED. PASSWORD PROTECTION AND ANY OTHER SECURITY MEASURES MAY NOT PREVENT UNAUTHORIZED ACCESS TO MATERIALS YOU MAY USE OR ALLOW OTHER PERSONS TO USE IN CONNECTION WITH OUR SERVICES, INCLUDING MATERIALS POSTED OR SUBMITTED TO OUR SERVICES.
ANY LIABILITY ON THE PART OF THE MODOSLEEP PARTIES, IN THE AGGREGATE, SHALL NOT EXCEED THE FEES PAID BY YOU SOLELY FOR THE RIGHT TO USE THE PARTICULAR INFORMATION OR SERVICE PROVIDED BY COMPANY HEREUNDER OR $1,000, WHICHEVER IS GREATER.
You acknowledge and agree that the limitations set forth above are fundamental elements of this Agreement and access to our Services would not be provided to you absent such limitations.
18. GOVERNING LAW
All matters relating to our Services, their respective Content, and your use thereof (including any dispute or claim arising therefrom or related thereto), shall be governed by and construed in accordance with the internal laws of the State of TENNESSEE without giving effect to any choice or conflict of law provision or rule (whether of the State of TENNESSEE or any other jurisdiction).
19. DISPUTE RESOLUTION; BINDING ARBITRATION
EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU, ON THE ONE HAND, AND COMPANY, ITS EMPLOYEES, SUPPLIERS OR VENDORS, ON THE OTHER HAND, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AGREE THAT COMPANY AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (currently available at https://www.adr.org/Rules), as amended by this Agreement. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. If you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Company has the option, but not the obligation, to pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief, or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state, or local agencies and, if the law allows, they can seek relief against us for you.
With the exception of any of the language above in this Dispute Resolution provision relating to the waiver of class and representative actions, if a court decides that any part of this Dispute Resolution provision is invalid or unenforceable, the other parts of this Dispute Resolution provision shall still apply. If a court decides that any aspect of the language above in this Dispute Resolution provision relating to the waiver of class and representative actions is invalid or unenforceable, then the entirety of this Dispute Resolution provision shall be null and void. Solely in the event the entirety of this Dispute Resolution provision is to be null and void in accordance with the immediately preceding sentence, any legal suit, action, or proceeding arising out of, or related to, this Agreement, our Services, their respective Content or your use of the foregoing, shall be instituted exclusively in the federal courts of the United States or the courts of the State of Tennessee, in each case located in the City of Nashville and County of Davidson, Tennessee. The remainder of this Agreement will continue to apply and be unaffected by this severability provision.
21. LIMITATION ON TIME TO FILE CLAIM
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT, OUR SERVICES, OR THEIR RESPECTIVE CONTENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
You may not assign, transfer, or delegate this Agreement (including your account) or any part thereof without Company’s prior written consent. Company may freely transfer, assign, or delegate all or any part of this Agreement, and any rights or duties hereunder or thereunder. This Agreement will be binding upon and inure to the benefit of the heirs, successors, and permitted assignees of the parties.
23. WAIVER; SEVERABILITY AND ENTIRE AGREEMENT
24. YOUR COMMENTS AND QUESTIONS
Our Services are operated by Sleep DX, LLC at 4520 Georgia Ave, Nashville, TN 37209.
All other feedback, questions, comments, requests for technical support and other communications should be directed to: [email@example.com].