These Terms and Conditions (these “Terms”) apply to our websites, microsites, mobile versions of these websites, and mobile applications (the “Website”) that expressly adopt and display or link to these Terms, as they may be revised from time to time, and that are owned, operated, or controlled by Healthy America, LLC, our affiliates, and our subsidiaries (collectively, “Company”, “we”, “our”, and “us”). By accessing and using the Website, or using the services made available through the Website, as more thoroughly described on each Website (the “Services”), you acknowledge and agree to accept and be bound by these Terms. Specific features of the Website may have additional rules and terms associated with them, and such additional rules and terms will be prominently posted or otherwise made available to each user (“you” and “your,” including any entity you represent) and are incorporated herein by reference.
PLEASE READ THESE TERMS CAREFULLY. THESE TERMS CONSTITUTE A BINDING LEGAL AGREEMENT BETWEEN YOU AND COMPANY. BY USING THIS WEBSITE AND ANY RELATED SERVICES YOU UNCONDITIONALLY AGREE TO BE BOUND BY THESE TERMS, INCLUDING ALL EXCLUSIONS AND LIMITATIONS OF LIABILITY HEREIN, AND WARRANT THAT YOU HAVE FULL AUTHORITY AND CAPACITY, LEGAL AND OTHERWISE, TO USE THE WEBSITE. YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES IF YOU DO NOT AGREE TO ANY PART OF THESE TERMS.
THESE TERMS LIMIT THE REMEDIES AVAILABLE IN THE EVENT OF A DISPUTE AND REQUIRE THAT ALL DISPUTES BE RESOLVED THROUGH BINDING ARBITRATION. THIS MEANS THAT YOU AGREE TO RESOLVE DISPUTES INDIVIDUALLY ACCORDING TO THE ARBITRATION PROVISIONS BELOW RATHER THAN IN A COURT OF LAW OR THROUGH A CLASS ACTION LAWSUIT.
- Medical Disclaimer
AMONG OTHER ACTIVITIES, OUR SERVICES MAY ENABLE OR FACILITATE COORDINATION AND COMMUNICATION WITH A HEALTHCARE PROVIDER. THESE SERVICES DO NOT REPLACE YOUR RELATIONSHIP WITH ANY PHYSICIAN OR OTHER HEALTHCARE PROVIDER OR PRACTITIONER. THESE SERVICES MIGHT NOT BE APPROPRIATE FOR ALL MEDICAL CONDITIONS OR CONCERNS. IF YOU HAVE A MEDICAL EMERGENCY, IMMEDIATELY GO TO AN EMERGENCY DEPARTMENT OR DIAL 911.
We believe it is important for every patient to have a local primary care physician (“PCP”). You should not consider any healthcare provider affiliated with Company to be your primary care provider. We strongly encourage you to establish a relationship with a local PCP in your area. The services provided by physicians affiliated with Company are in addition to or as supplementation to, and do not replace, the medical care provided by your PCP. The ultimate responsibility for your overall medical care should remain with your local PCP. Always seek the advice of your personal physician if you have any questions regarding medical conditions or concerns. Company assumes no responsibility or liability for how you use information obtained from this Website or our Services. Before making any decisions regarding your healthcare, ask your PCP and/or mental healthcare professional.
In some cases, a Company-affiliated healthcare provider may use our Services to provide you with medical advice or treatment via telehealth, as further described in Section 3 below. A healthcare provider consulting with you remotely through the Services may not have the benefit of information that would be obtained by examining you in-person and observing your physical condition, in each instance. The healthcare provider may, therefore, not be aware of facts or information that may affect his or her opinion regarding a potential diagnosis or treatment recommendation. To reduce the risk to you of this limitation in these Services, Company strongly encourages you to provide all relevant facts and information, and discuss any and all diagnoses and treatment options, with an in-person healthcare provider. Moreover, a healthcare provider made available by Company may be limited by state licensure or other laws when prescribing certain medications to you without first conducting an in-person physical examination. By deciding to engage the Services via telehealth, you acknowledge and agree that you are aware of these limitations and agree to assume the risk of these limitations. Furthermore, without limiting any other provision of these Terms, you expressly agree and accept all of the following:
- any diagnosis you may receive from a Company-affiliated healthcare provider is limited and, in some cases, provisional;
- the services of any Company-affiliated healthcare provider are not intended to replace a full medical evaluation or an in-person visit with a healthcare provider, including with your PCP;
- a Company-affiliated healthcare provider may not have important information that is usually obtained through a “hands-on,” in-person physical examination; and
- the absence of an in-person physical examination may affect the Company-affiliated healthcare provider’s ability to diagnose any potential medical condition, disease, or injury.
For more information regarding the healthcare services offered by Company-affiliated healthcare providers utilizing the Services, please visit the relevant Website homepage and follow the appropriate links.
- Services Disclaimer
Company does not provide any medical services, including via the Website and the Services. Company instead provides a technology platform for you to access a healthcare provider we contract with, or similar, affiliated, professional entities, and to obtain access to additional information, which you may or may not choose to utilize in planning your healthcare and wellness. Please visit the relevant Website homepage and follow the appropriate links more information on the health-care providers we work with, as applicable. The health and wellness resources made available through our Services are not a substitute for direct, in-person healthcare services. The decision to focus on diagnosis, treatment recommendations, or both, rests with you and your healthcare providers, including your PCP. You understand that by coordinating, and in certain cases consulting with, our affiliated healthcare providers through the Services, you are not entering into a provider-patient relationship with Company.
By accepting these Terms, you agree and consent to Company and affiliated healthcare providers sending you disclosures, notices, messages, reports, and other communications. It is your responsibility to monitor these communications. You acknowledge and agree you will not hold us or any Company-affiliated health care provider liable for any loss, injury, or claim of any kind resulting from your failure to read these communications or your failure to comply with any treatment recommendations contained in these communications.
- No Surprises Act / Good Faith Estimate
Notwithstanding your relationship with Company, in any healthcare facility or provider relationship, including with a Company-affiliated healthcare provider or with your PCP, you have the right under federal law to receive a good faith estimate for the total expected cost of any non-emergency items or services. This includes related costs, tests, equipment, and hospital fees. Please see here for a further disclosure regarding the “No Surprises Act” and these considerations, or contact us at the below contact information.
“Telehealth” or “telemedicine” is the provision of healthcare services over telecommunication systems, enabling healthcare providers at different physical locations from patients to provide services and share individual patient medical information for the purpose of improving and continuing patient care. Telemedicine may be used for diagnosis, chart review, prescribing, treatment, follow-up or related patient education, and may include but is not limited to:
- Electronic transmission of medical records, test results, photo images, personal health information, synchronous or asynchronous communications, or other data between a patient and healthcare providers;
- Interactions between a patient and healthcare provider via live, two-way audio or video, or data/patient communications;
- Remote evaluation, diagnosis, chart review, prescribing, appointment scheduling, health information sharing, or patient education;
- Interactive audio with store and forward; and
- Use of output data from medical devices, sound, and video files.
The electronic systems used in the Services will incorporate network and software security protocols to protect the privacy and security of health information and imaging data, and will include measures to safeguard the data to ensure its integrity against intentional or unintentional corruption.
- Services Availability
Certain Services may only be available to individuals located in certain states. Thus, not all Services we provide may be available to you. Services availability is dependent on applicable residency and each state’s licensure and other legal requirements for our affiliated healthcare providers.
- Product and Service Information Disclaimer
Any products offered or made available on or through our Website (“Products”), Services, and prices of Products and Services are subject to change at any time without notice. Company attempts to be as accurate as possible regarding Product and Service descriptions, pricing, and availability on the Website. However, unless specifically stated otherwise in writing on the Website, Company does not warrant that Product or Service descriptions or Website content are accurate, complete, reliable, current, or error-free. From time to time, the Website may contain typographical errors, inaccuracies, or omissions relating to Product or Service descriptions, pricing, and availability. In addition, Company reserves the right, without prior notice, to limit the order quantity on any Product and/or refuse Services to any individual.
- Website Content
All Website content, including, without limitation, all text, graphics, audio, video, music, icons, images, hyperlinks, advertising copy, displays, Product or Service descriptions, HTML code, scripts, and any other content of any kind of nature (collectively, the “Website Content”), and the collection, arrangement, and assembly of the Website Content, is the property of Company and its sponsors, distributors, or licensors, and is protected by copyright law and other U.S. and international laws and treaties. You are granted no right, title, or interest in or to the Website Content other than the limited license expressly set forth in these Terms. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works from, distribute, perform, display, incorporate into a website, or in any way exploit the Website Content, or any portion thereof, without the express written permission of Company.
- Use of Website Content
The Website, including all Website Content, is provided as a resource for you to learn more about Company and its Services and Products. Subject to these Terms, you are hereby granted a non-exclusive, non-transferable, limited, revocable license to access and use the Website and the Website Content for your own non-commercial purposes. All rights not expressly granted are reserved by Company and its licensors. This limited license may be revoked at any time for any reason or no reason.
All rights regarding any trademarks, trade names, service marks, logos, and/or trade dress (collectively, “Marks”) contained in, or used in connection with, the Website are expressly reserved by Company and its licensors. The Marks, and all associated logos or images, are registered and/or common law trademarks, and are protected by U.S. and international laws and treaties. No license with respect to the use of the Marks is granted to you under these Terms or by virtue of your use of the Website. The Marks may not be copied, imitated, or used, in whole or in part, without the prior written consent of Company or the applicable rights holder.
The Website may include links to third party websites not owned or operated by Company. These links are provided for your convenience and in no way signify any endorsement of any such websites or the content thereof. Access to any such linked site is at YOUR own risk, and COMPANY will not have any liability arising out of or related to such sites and/or their content, or for any damages or loss caused or alleged to be caused by or in connection with any use of or reliance on any such content, or any goods or services, available on or through any such site.
- User Information
- Online Commerce
The Website may allow you to make online purchases. Where you make such a purchase via the Website, all information obtained by Company from you in the course of such purchase, including User Information, may be collected by Company, as well as our third-party vendors, such as payment processing companies, responsible for facilitating your purchase. These third-party vendors may have privacy and data collection practices that are different from those utilized by Company. In addition to being subject to these Terms, certain purchases may subject you to additional terms and conditions of these third-party vendors. You acknowledge and agree that Company has no responsibility or liability for the independent policies of these third-party vendors and that you are solely responsible for complying with such policies.
You agree to pay all fees due for Products and Services requested. You will see a prompt for your payment details, such as your credit card information and any promotional codes you may have. By entering your payment information and submitting your request, you authorize us and/or our third-party payment processors to charge the amount due.
You understand and agree that you are responsible for all fees due related to your receipt of healthcare services and pharmacy services from healthcare providers, including any fees charged by the healthcare providers or any other person or entity. Your payments to Company may include fees charged by healthcare providers for healthcare services that Company collects on their behalf. Any healthcare services not made available through the Services are not included in the payments Company collects, and the applicable healthcare providers may separately charge you for any such services. In the event your credit card expires or Company and/or our third-party payment processors are unable to process your payment, you may receive notice for you to provide an alternative payment method. Company and the healthcare providers have no obligation to provide any healthcare services unless and until full payment has been received or verified.
The Services provided may include advertisements, some of which may be targeted based on the type of information you provide on the Website, queries made, or other information, whether submitted by you or others. The types and amount of advertising on the Website or through the Services is subject to change.
- User Content
The Website may allow you to upload photographs, videos, or other content (“User Content”). You shall be solely responsible for the User Content and the consequences of submitting and publishing the User Content via the Website and related Company platforms. You shall retain ownership of all User Content and hereby grant to Company a non-exclusive, royalty-free, transferable, worldwide right and license to use, reproduce, modify, adapt, publish, translate, transmit, distribute, and display the User Content via the Website and related Company platforms and for our business purposes. You also grant to the other users of the Website and related Company platforms a non-exclusive license to access the User Content via the Website and related Company platforms, and to use, reproduce, distribute, and display such User Content as permitted through the functionality thereof and subject to these Terms. You grant Company the right to identify you as the author of any such User Content by name, email address, and/or screen name, and you acknowledge that Company has the right, but is not obligated, to use any such User Content and that Company may cease utilizing such User Content at any time for any reason. You agree not to submit, upload, or otherwise make available via the Website any content or materials (i) that are unlawful, threatening, abusive, harassing, defamatory, libelous, obscene, vulgar, profane, injurious to third parties, or which invade another person’s privacy, further the commission or concealment of a crime, or are otherwise objectionable; (ii) infringe the copyright or other intellectual property rights of a third party; or (iii) with respect to which you do not have the rights necessary to transmit and publish such content or materials, or to grant Company the license to use such content or materials as described herein. You acknowledge that Company has no obligation to monitor or screen User Content submitted to the Website, but that Company shall have the right, but not the obligation, to reject, remove, or delete any User Content that violates these Terms or that is otherwise objectionable in Company’s sole discretion.
- Third Party Content
You understand and agree that Company does not control and is not responsible for any content made available on the Website by third parties. Your use of, or reliance on, any information contained in such third-party content is at your sole risk. Under no circumstances will Company be liable for any such third-party content or for any loss or damage resulting from your use of, or reliance on, such third-party content.
In order to access certain features of the Website or the Services, you must register to create an account (“Account”). To create an Account, you must be at least 18 years old, or you must have specific, documented parental or guardian consent. Any other registration of an individual under age 18 is void. During the registration process, you will be required to provide certain information and you will establish a username and a password. You agree to provide accurate, current, and complete information during the registration process and to update such information to keep it accurate, current, and complete. Company reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current, or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You agree to immediately notify Company of any unauthorized use of your Account. You may not use anyone else’s Account at any time. Company explicitly disclaims liability for any and all losses and damages arising from your failure to comply with this section of these Terms. You acknowledge and agree: (i) all or any part of the Website may not be accessible at any time, for any period, or for any reason; and (ii) Company will not be liable if, for any reason, all or any part of the Website is unavailable at any time or for any period.
- Technological and Financial Requirements for Use
You must have compatible computing or mobile devices, access to the Internet, and certain necessary software in order to use the Website. Fees and charges may apply to your use of the mobile services and to the Internet. You are individually and solely responsible for any such fees, costs, or expenses you incur in relation to your use of the Website or the Services.
- Acceptable Use
Your permitted use of the Website and Website Content is limited to the standard functionality of the Website. In no event may the Website be used in a manner that (i) is unlawful, fraudulent, or deceptive; (ii) harasses, abuses, stalks, threatens, defames, or otherwise infringes or violates the rights of any third party (including, without limitation, the rights of publicity or other proprietary rights); (iii) uses technology or other means not authorized by Company to access Website Content; (iv) attempts to introduce viruses or any other computer code, files, or programs that interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment; (v) attempts to gain unauthorized access to our systems or user Accounts; (vi) encourages conduct that would constitute a criminal offense or that gives rise to civil liability; (vii) attempts to damage, disable, or overburden our servers or networks; or (viii) fails to comply with applicable third-party terms. You must comply with all applicable third-party terms (such as wireless carrier terms of service) at all times while using the Website. Company reserves the right, in its sole discretion, to terminate the license granted to you hereunder and/or bring legal action against you if you engage in, or Company reasonably believes you have engaged in or are engaging in, use that violates these Terms. Our failure or delay in taking such actions does not constitute a waiver of our rights to enforce these Terms.
- International Use and Compliance
Due to the global nature of the internet, you understand and agree that it is your responsibility to ensure that your use of the Website complies with all local, international, and other laws that may apply. In addition, U.S. import and export control laws and the import regulations of other countries may apply to the use of the Website. You agree not to export, upload, post, or transfer, directly or indirectly, any software, technical data, or technology acquired through us, the Website, or the Services in violation of such export or import laws, including, but not limited to, the U.S. Export Administration Regulations (EAR) and the various U.S. sanctions programs.
- Eligibility; Jurisdiction
You represent and warrant that (i) you are at least 18 years of age, are fully competent and able to enter into these Terms, and to abide by the terms hereof, or have specific, documented, parental or guardian consent; (ii) you are not located in a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist support” country; and (iii) you are not included on any U.S. government list of prohibited or restricted parties. Company provides the Website for use in the United States of America. Company does not represent the Website is available or appropriate for use in other jurisdictions. Any access to or use of the Website from other jurisdictions is at your sole risk, and you are responsible for complying with all applicable local laws. You understand and agree that satisfying the above requirements does not guarantee you will receive Company’s Services. In addition to the above requirements, Company and our affiliated healthcare providers reserve the right to change or include new requirements as deemed appropriate in their sole discretion without providing prior notice to you.
THIS SECTION APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE WEBSITE IS PROVIDED TO YOU ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE CONTENT PROVIDED ON THE WEBSITE. WE, OUR SUBSIDIARIES, OFFICERS, EMPLOYEES, CONTRACTORS, AFFILIATES, PARTNERS, SUPPLIERS, AGENTS, AND LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. THIS INCLUDES, WITHOUT LIMITATION TO THE FOREGOING, NO WARRANTY THAT THE WEBSITE, ITS CONTENT, OR THE SERVICES WILL BE CONSTANTLY AVAILABLE OR AVAILABLE AT ALL, UNINTERRUPTED, USEFUL, TRUE, ACCURATE, NON-MISLEADING, TIMELY, RELIABLE, COMPLETE, ERROR-FREE, FREE OF OMISSIONS, SECURE, FREE OF VIRUSES OR OTHER HARMFUL CODE, LEGAL, OR SAFE. NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR THROUGH THE WEBSITE OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOUR USE OF THIS WEBSITE AND THE PRODUCTS AND SERVICES IS AT YOUR SOLE RISK, AND WE ASSUME NO RESPONSIBILITY FOR HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA, THE DELETION OF INFORMATION YOU TRANSMIT ON THE WEBSITE, OR THE DELETION OR FAILURE TO STORE OR TRANSMIT USER CONTENT OR PERSONALIZATION SETTINGS THAT MAY RESULT FROM YOUR ACCESS TO OR USE OF THE WEBSITE AND THE PRODUCTS AND SERVICES. YOU HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION THAT MAY CAUSE DAMAGE TO YOUR COMPUTER OR INTERNET ACCESS.
IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE WEBSITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. NOTHING IN THIS SECTION IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE WHICH MAY NOT BE LAWFULLY LIMITED.
- Non-Participation in Insurance
NEITHER COMPANY NOR ANY OF COMPANY’S AFFILIATED HEALTHCARE PROVIDERS PARTICIPATE IN, BILL, OR ACCEPT PAYMENT FROM ANY PRIVATE OR PUBLIC INSURANCE OR OTHER THIRD PARTY PAYORS OF ANY KIND OR NATURE FOR ANY SERVICES, PRODUCTS, OR OTHER ITEMS AND SERVICES OBTAINED FROM AFFILIATED HEALTHCARE PROVIDERS THOUGH COMPANY’S SERVICES. You expressly acknowledge and understand a private or public insurer or other third party payor may not reimburse you for any or all of the Products and Services or any items and services received from affiliated healthcare providers, and you will be financially responsible for all incurred charges that are not covered by such insurance or other payors. Certain insurance coverages and payors (like Medicare) may not assist you at all in paying for the Products and Services or other fees you incur through using the Services, as further described in Section 22 below. Upon request, we may provide you with a superbill for you to seek reimbursement from your insurer or other third party payor. We are in no way liable for, however, and do not in any way guarantee, any such reimbursement will occur, and we accept no responsibility or liability whatsoever as related to your attempts to obtain reimbursement, as any reimbursement would be solely governed by the relevant insurance policy or other third party payor plan or program documents and terms. You further agree, except as may be permitted by applicable law or the terms of your specific coverage, not to bill or attempt to bill Medicare, Medicaid, or any other governmental, or non-private insurance for any of the Products, Services, or other items and services obtained from affiliated healthcare providers. You expressly acknowledge and understand that you have the right to seek out medical care and related items and services from physicians and other healthcare providers who do accept Medicare, Medicaid, or other private, government, or supplemental insurance plans or other third party payor programs, and your choice to obtain any Products and Services from the Company, or to obtain items and services from our affiliated healthcare providers, is knowing and entirely voluntary. Except as otherwise provided by applicable law, you acknowledge and understand that the Company has complete discretion to establish fees for the Products and Services, and affiliated healthcare providers likewise have complete discretion to establish fees for their items and services.
- Special Notice to Medicare Beneficiaries
As detailed above, we do not provide any medical care, and do not participate in and are not reimbursed by, any private or public insurance or other third party payors of any kind or nature, including Medicare. Our affiliated healthcare providers have made the individual choice to “opt out” of Medicare pursuant to Medicare’s requirements to do so. When receiving items and services from these affiliated healthcare providers, you, if you are a Medicare beneficiary, will be asked to sign a private contract related to payment for items and services that would otherwise be covered by Medicare except for the affiliated healthcare provider having opted-out of Medicare. By agreeing to these Terms, you agree to affirmatively inform affiliated healthcare providers and Company of the fact that you are a Medicare beneficiary prior to receiving any items or services from any affiliated healthcare providers through the Services. If you have any questions or concerns related to Medicare, please discuss with your individual affiliated healthcare provider prior to obtaining any items or services from them.
- Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY, INCLUDING ITS OFFICERS, EMPLOYEES, CONTRACTORS, AFFILIATES, PARTNERS, SUPPLIERS, AGENTS, AND LICENSORS, MAY NOT BE HELD LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE WEBSITE OR SERVICES; (ii) THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES; (iii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE WEBSITE, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iv) ANY CONTENT OBTAINED FROM THE WEBSITE; (v) UNAUTHORIZED ACCESS, USE, OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT; OR (vi) OTHER MATTERS RELATED TO THE WEBSITE, PRODUCTS, OR SERVICES. THESE LIMITATIONS APPLY EVEN IF WE HAVE BEEN EXPRESSLY ADVISED OF THE POTENTIAL LOSS OR LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT MAY OUR AGGREGATE LIABILITY EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT YOU PAID US, IF ANY, IN THE PAST SIX (6) MONTHS FOR THE PRODUCTS OR SERVICES GIVING RISE TO THE CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR AFFILIATES, PARTNERS, SUPPLIERS, AGENTS, AND LICENSORS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO YOUR USE OF OR INABILITY TO USE THE WEBSITE OR SERVICES. YOU FURTHER AGREE NOT TO BRING ANY CLAIM PERSONALLY AGAINST OUR OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, AFFILIATES, PARTNERS, SUPPLIERS, OR LICENSORS.
THE LIMITATIONS IN THIS SECTION APPLY REGARDLESS OF THE THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STATUTE, OR OTHERWISE.
NOTE THAT SOME JURISDICTIONS PROHIBIT THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND THEREFORE THE LIMITATIONS AND EXCLUSION ABOVE MAY NOT APPLY TO YOU. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Upon request by Company, you agree to indemnify, defend, and hold harmless Company and its employees, contractors, officers, directors, and licensors from and against all claims, suits, demands, damages, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees) that arise from: (i) your use or misuse of the Website, Products or Services; (ii) your violation of these Terms; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that the User Content resulted in damage to a third party. Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Company in asserting any available defenses.
- Changes to Website
At any time and without notice to you, Company may change or modify the Website or Services, or any features or functions thereof, or may suspend or discontinue the Website or Services, or stop supporting the Website or Services, or any aspect thereof. Any such termination, change, suspension, or discontinuance shall be without liability to you.
- Changes to Terms; Updates
Company reserves the right to change these Terms at any time, and in its sole discretion, by changing these Terms within the Website. Your continued use of the Website after any such changes to these Terms are made available through the Website will constitute your acceptance of those changes. These Terms shall govern any updates to, or supplements, or replacements for, the Website unless separate terms are provided in conjunction with such updates, supplements, or replacements – in which case such separate terms will apply.
- Governing Law
These Terms are governed by the laws of the State of Texas and applicable federal laws of the United States of America, without giving effect to conflict of laws principles. Subject to Section 32 below, you irrevocably consent to the exclusive jurisdiction of the federal and state courts situated in Texas for purposes of any legal action arising out of or related to these Terms or use of the Website.
- Legal Notice for New Jersey Residents
Under the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”), N.J.S.A. 56:12-14 et seq., consumers may not be offered any written contract which includes any provision that violates any clearly established legal right of a consumer, or responsibility of a seller, as established by state or federal law. In addition, under the TCCWNA, no consumer contract may state that any of its provisions are or may be void, unenforceable or inapplicable in some jurisdictions without specifying which provisions are or are not void, unenforceable or inapplicable in New Jersey. Therefore, the following provisions of these Terms shall not be applicable to New Jersey residents: (1) the provisions concerning limiting Company’s liability for any loss or damage is not applicable to New Jersey residents to the extent Company was negligent or has breached its obligation; (2) the provisions concerning the exclusion or limitation of certain damages is not applicable to New Jersey residents with respect to punitive damages, loss of data, and loss of or damage to property; and (3) the provisions concerning the indemnification by you is not applicable to New Jersey residents unless you were negligent or have breached these Terms.
- Digital Millennium Copyright Act
If you are a copyright owner or an agent thereof and believe that any content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing Company’s DMCA Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You may direct copyright infringement notifications to Company’s DMCA Agent at:
K&L Gates LLP
2801 Via Fortuna, Ste. 650
Austin, TX 78746
You acknowledge that if you fail to comply with all of the requirements detailed above, your DMCA notice may not be valid.
- Support or Maintenance
Although we may choose to provide customer support or Website maintenance, you acknowledge and agree that we are under no obligation to do so.
- Restricted Access
Some parts of the Website may be restricted to certain users. If you have permission to access restricted parts of the Website, you agree to not share your access information and password with third parties. We may change the restricted parts of the Website from time to time. If you do not have access to restricted parts of the Website, you agree not to use another user’s Account to gain such access or otherwise attempt to gain improper access to the restricted parts of the Website.
- Dispute Resolution
Unless both parties agree otherwise, you and Company agree that any dispute, claim, or controversy you may have arising out of or relating to the Website, Products, Services, or these Terms will be resolved by binding mediation in Austin, Texas.
If binding mediation does not work, this case will escalate to mandatory binding arbitration administered by the American Arbitration Association (AAA) in accordance with its Commercial Arbitration Rules, and the judgment of its arbitrator(s) may be entered by any court of competent jurisdiction.
You further agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and THE PARTIES FURTHER AGREE THAT EACH IS WAIVING ITS CONSTITUTIONAL RIGHT TO A TRIAL BY JURY AS WELL AS THE RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION OR MULTI-PARTY ACTION. ALL CLAIMS AND DISPUTES RELATED TO YOUR USE OF THE WEBSITE, PRODUCTS OR SERVICES OR ARISING UNDER THE TERMS MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. ANY DISPUTE, CLAIM, OR CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATING TO THE WEBSITE, PRODUCTS, SERVICES, OR THESE TERMS MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION WILL BE PERMANENTLY BARRED.
If any portion of these Terms are held invalid, it is agreed that the remaining provisions shall continue in full force and effect. Likewise, you agree that if any legal action is brought, it must be brought in Austin, Texas.
Notwithstanding the foregoing, you agree that we may seek injunctive or other appropriate relief in the appropriate state or federal court should you violate or threaten to violate the intellectual property rights of us or our subsidiaries, affiliates, partners, suppliers, or licensors, and you consent to exclusive jurisdiction and venue in such courts.
- Additional Policies
Our Websites, Products, and Services may have additional policies, terms, or conditions that are specific to those Websites, Products, or Services. These documents will be made available to you when you access those Websites or use those Products or Services. Please contact us for more information on these supplemental policies.
- Feedback and Complaints
You hereby assign to us all rights in any feedback or complaints you provide us concerning the Website, Products, or Services and agree that we have the right to use and fully exploit all such feedback or complaints in any manner we wish, commercial or otherwise. We will treat all such feedback or complaints as non-confidential and non-proprietary. Do not provide us with any feedback or complaints that you consider confidential or proprietary. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814 or by telephone at (800) 952-5210.
Any questions, complaints, or claims regarding the Website may be directed to: email@example.com.