IN PARTICULAR, THIS TOU CONTAINS AN ARBITRATION PROVISION THAT WAIVES YOUR RIGHT TO A COURT HEARING AND/OR A JURY TRIAL AND A CLASS ACTION WAIVER THAT WAIVES YOUR RIGHT TO PARTICIPATE IN ANY CLASS ACTION LAWSUIT TO ENFORCE THIS CONTRACT.
IF YOU DO NOT AGREE WITH THIS TOU, YOU ARE NOT GRANTED PERMISSION TO ACCESS OR OTHERWISE USE THE PLATFORM AND ARE INSTRUCTED TO EXIT, UNINSTALL, AND/OR CEASE ALL USE OF THE PLATFORM IMMEDIATELY.
The Platform may promote or facilitate your communications with physicians and other healthcare professionals (collectively, “Providers”). However, CARE MEDICAL PRACTICE is not itself responsible for the services, information, or advice offered by these Providers. Providers operate independently from CARE MEDICAL PRACTICE and only use the Platform to communicate with You. You acknowledge that all services, information, and advice given by a Provider via the Platform comes from the Provider, and not from CARE MEDICAL PRACTICE. A Provider’s use of or availability on the Platform does not in itself constitute (and shall not be construed as) any endorsement or guarantee by CARE MEDICAL PRACTICE regarding such Provider.
IN ADDITION TO AND WITHOUT LIMITING THE GENERALITY OF ANY OTHER DISCLAIMER OR LIMITATION OF LIABILITY IN THIS TOU, CARE MEDICAL PRACTICE EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND GUARANTEES REGARDING: (A) THE SKILLS, TRAINING, QUALIFICATIONS, EXPERTISE, OR EFFECTIVENESS OF ANY PROVIDERS; AND (B) YOUR INTERACTIONS WITH PROVIDERS, WHETHER OR NOT FACILITATED BY THE PLATFORM. YOU ACKNOWLEDGE AND AGREE THAT YOUR ACTS, OMISSIONS, AND DECISIONS MADE IN RELIANCE ON ANY SERVICES, INFORMATION, OR ADVICE GIVEN BY PROVIDERS IS ENTIRELY AT YOUR OWN RISK, AND THAT CARE MEDICAL PRACTICE SHALL HAVE NO RESPONSIBILITY OR LIABILITY THEREFOR. YOU ARE SOLELY RESPONSIBLE FOR THE OUTCOMES OF ANY INTERACTIONS BETWEEN YOU AND PROVIDERS.
If this is a medical emergency, immediately call emergency personnel (911). Do not rely on any communication with this Platform for assistance for any immediate or urgent medical need. This Platform is not designed or meant to help in a medical emergency.
License Grant and Restrictions
This TOU provides to You a personal, revocable, limited, non-exclusive, non-sublicensable, and non-transferable license to use and access the Platform solely for Your lawful business use as specifically described herein, conditioned on Your continued compliance with this TOU.
When using the Platform in accordance with the foregoing license, You shall not directly or indirectly: (a) use the Platform to create any service, software or documentation that performs substantially the same functionality as the Platform; (b) disassemble, decompile, reverse-engineer or use any other means to attempt to discover any source code, algorithms, or trade secrets underlying the Platform or any of its components; (c) encumber, sublicense, transfer, distribute, rent, lease, time-share or use the Platform in any service bureau arrangement or similar commercial purposes; (d) adapt, combine, create derivative works of or otherwise modify the Platform; (e) disable, circumvent, or otherwise avoid or undermine any security device, mechanism, protocol, or procedure implemented in the Platform; (f) use or access the Platform for any unlawful, fraudulent, deceptive, malicious, or otherwise harmful or injurious purpose; (g) remove, obscure, deface, or alter any proprietary rights notices on any element of the Platform or accompanying documentation; (h) use the Platform in any manner which could damage, disable, overburden, or impair the Platform or interfere with any third party’s authorized use of the Platform; (i) engage in any “data mining,” “deep-link,” “page-scrape,” or use “bots,” “spiders,” or similar data gathering and extraction tools or methods in connection with the Platform; or (j) probe, scan, or test the vulnerability of the Platform or any systems or network infrastructure connected with the Platform, including without limitation by stress testing or penetration testing.
You represent that You are at least eighteen (18) years of age or the legal age of majority in Your jurisdiction (whichever is greater) and will, at all times, provide true, accurate, current, and complete information (for which You have all necessary rights, permission(s), or authority to provide) when submitting information through the Platform. In addition, You are responsible for compliance with all applicable laws, rules, and regulations with respect to Your use of the Platform (including use of any permitted copies of the Platform materials and information).
The Platform is not intended for use or access by any individual under the age of thirteen (13) years. In certain circumstances, CARE MEDICAL PRACTICE may collect information about individuals under 13 from parents or guardians.
You may be required to register an account to use the Platform or certain features of the Platform. Each registration is for a single user only, unless otherwise expressly agreed by CARE MEDICAL PRACTICE. Registration for the Platform may also require access credentials, such as a username and a password, or adherence to other access requirements as designated by CARE MEDICAL PRACTICE in its sole discretion from time to time. You hereby agree to treat Your access credentials as confidential and not to disclose such information to any third party without the express prior written consent of CARE MEDICAL PRACTICE, which may be granted or withheld in its sole discretion. You shall immediately notify CARE MEDICAL PRACTICE if You suspect or become aware of any loss, theft, or unauthorized use of Your login credentials. CARE MEDICAL PRACTICE will not be liable for any loss or damage arising from Your failure (whether intentional or unintentional) to comply with these obligations.
By submitting the requested information to the registration form or similar process on the Platform, You represent and warrant that the information You submit for registration is complete, true, accurate, and current in all respects. You must maintain and promptly update Your submitted account information to ensure that such information is complete, true, accurate, and current. CARE MEDICAL PRACTICE reserves the right to suspend, terminate, or otherwise discontinue Your account and/or pending registration if CARE MEDICAL PRACTICE has reasonable grounds to suspect that any information You have submitted is untrue, inaccurate, not current, or incomplete, or that Your registration, account, or use of the Platform is in violation of applicable law or this TOU.
CARE MEDICAL PRACTICE may send emails or other electronic messages to You concerning Your use of the Platform. You consent to receive such electronic communications and You agree that all such electronic communications constitute valid legal notices satisfying any requirement that such notices be in writing.
Purchases and Payments
The Platform may contain the option for You to purchase products and services. The applicable fees or purchase price (and any applicable discounts, if available), period of plan or subscription, renewal opportunities, and permitted payment methods (e.g., credit or debit) will be specified through the Platform at the time of order. All purchases are final and there will be no refunds or credits except as otherwise provided in this TOU, indicated by CARE MEDICAL PRACTICE in writing, or as may be required under applicable law. All transactions are void where prohibited by law and CARE MEDICAL PRACTICE may request information in order to confirm the order and method of payment. CARE MEDICAL PRACTICE reserves the right to terminate or suspend access to the Platform or any related plan, subscription, product, or service if You fail to pay any amounts when due.
When making or submitting a payment through the Platform, You agree to pay using the payment methods indicated and grant authorization to CARE MEDICAL PRACTICE and/or the applicable third-party payment service provider to charge Your payment methods indicated. CARE MEDICAL PRACTICE and/or the applicable third-party service provider shall charge and You shall be responsible for payment of all taxes, tariffs, levies, or duties applicable to Your payment. You are responsible for: (a) the accuracy of all credit and debit card or other payment information that You provide to us; and (b) maintaining the confidentiality and security of Your account information.
When You submit payment information to CARE MEDICAL PRACTICE via the Platform, You authorize CARE MEDICAL PRACTICE (and its third-party payment service providers, as applicable) to use such payment information for purposes of handling and processing Your payment, as well as any other payment related features or functionality selected by You in the Platform. In addition, You acknowledge and agree that CARE MEDICAL PRACTICE may collect, store, transmit, and process certain aggregated, anonymized statistics regarding the payments and other transactions conducted via the Platform, and expressly consent to CARE MEDICAL PRACTICE’s collection and use of such data for any lawful purpose in its discretion.
You shall reimburse CARE MEDICAL PRACTICE for all reasonable costs incurred (including reasonable attorney’s fees) in collecting past-due amounts, or in recovering overpaid or inaccurate amounts resulting from your breach, negligence, or other malfeasance. Unless otherwise specified herein, all obligations with respect to the amounts due to CARE MEDICAL PRACTICE under the TOU shall survive the expiration or termination of the TOU for any reason.
Certain features of the Platform may permit You to upload, post, display, transmit, or otherwise provide certain information, content, survey responses, or other materials to the Platform (each a “Submission” and collectively “Submissions”). You hereby grant to CARE MEDICAL PRACTICE a royalty-free, fully transferable, fully sublicensable license to use, display, copy, perform, reproduce, modify, record, distribute, and create derivative works of Submissions in connection with: (i) CARE MEDICAL PRACTICE’s operation of the Platform and its features and functionalities; and (ii) CARE MEDICAL PRACTICE’s research, development, and improvement of the Platform.
In addition, You agree that You will not upload, post, display, or transmit any Submission(s) that:
(a) are illegal, defamatory, deceptive, fraudulent, discriminatory, tortious, obscene, pornographic, or otherwise objectionable;
(b) infringe, misappropriate, or otherwise violate the personal or proprietary rights of others;
(c) contain any virus, malware, worm, Trojan horse, disabling device, or any other harmful or malicious script, code, or tool;
(d) impersonates any person or entity or falsely states or otherwise misrepresents Your affiliation with a person or entity;
(e) unsolicited communications, promotions, or advertisements, or spam;
(f) harms, harasses, threatens, or violate the rights of any third party, or promotes, provokes, or incites violence; or
(g) constitutes false advertising, false endorsement, or is otherwise false, misleading, or likely to cause consumer confusion.
CARE MEDICAL PRACTICE may screen, review, edit, moderate, or monitor Submissions from time to time at its discretion, but has no obligation to do so. In any event, CARE MEDICAL PRACTICE is not responsible for Your or any other user’s Submissions, and shall have no liability or responsibility for the quality, content, accuracy, legality, or effectiveness of any Submissions.
By uploading, posting, displaying, transmitting, or otherwise providing a Submission to the Platform, You represent and warrant that: (i) You possess all legal rights required to upload, post, display, and/or transmit each Submission and permit CARE MEDICAL PRACTICE to use such Submission as set forth herein (including without limitation any necessary third-party license rights or required consents under applicable law); (ii) each Submission is in full compliance with all applicable laws and regulations; and (iii) Your Submissions do not infringe, misappropriate, or otherwise violate the personal or proprietary rights of any third party.
Links to Third-Party Sites and Services
Certain services, features, or components made available via the Platform are delivered by third-party providers. By using any product, service, or functionality originating from the Platform, You hereby acknowledge and consent that CARE MEDICAL PRACTICE may share such information and data with the applicable third-party provider as may be required to enable and facilitate the requested third-party product, service, or functionality via the Platform.
CARE MEDICAL PRACTICE EXPRESSLY DISCLAIMS RESPONSIBILITY AND LIABILITY FOR ANY THIRD-PARTY MATERIALS, PROGRAMS, APPLICATIONS, TOOLS, PRODUCTS, AND SERVICES SET FORTH, DESCRIBED ON, OR ACCESSED THROUGH THE PLATFORM, AND YOU AGREE THAT CARE MEDICAL PRACTICE SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF ANY DEALINGS BETWEEN YOU AND A THIRD PARTY, WHETHER OR NOT FACILITATED BY OR MADE IN CONNECTION WITH THE PLATFORM.
Third-Party Terms and Conditions
All materials and information included as part of the Platform, including without limitation all content, text, graphics, logos, and images made available on the Platform, as well as the compilation thereof, and any software or other proprietary materials used on or integrated with the Platform, are the property of CARE MEDICAL PRACTICE or its applicable third-party licensors, and are protected by copyright and other laws governing intellectual property and proprietary rights. CARE MEDICAL PRACTICE reserves all rights in the Platform not expressly granted herein.
You agree that You do not acquire any ownership rights in any part of the Platform under this TOU or through Your use of the Platform. CARE MEDICAL PRACTICE does not grant You any rights or licenses, express or implied, to any intellectual property hereunder except as specifically authorized by this TOU.
The Platform offers various tools or display functionality that may be accessible via Your mobile phone or other mobile computing device. Please note that Your mobile carrier’s normal messaging, data, and other rates and fees will apply to Your use of the Platform. In addition, downloading, installing, or using the Platform on Your mobile device may be prohibited or restricted by Your mobile carrier, and not all functionality on the Platform will work with all carriers or devices or in all locations. Therefore, You are solely responsible for: (i) checking with Your mobile carrier to determine if the Platform is available for Your mobile devices; (ii) the restrictions, if any, may be applicable to Your use of the Platform; and (iii) determining and keeping track of the network and data fees or similar charges associated with such use.
“Feedback” means any feedback, recommendations, enhancement requests, suggestions, testimonials, endorsements, or ideas for improvement communicated to CARE MEDICAL PRACTICE by You regarding the Platform or CARE MEDICAL PRACTICE’s products and services. From time to time, You may voluntarily provide Feedback to CARE MEDICAL PRACTICE, whether or not in response to specific requests or solicitation by CARE MEDICAL PRACTICE. In such event, You grant to CARE MEDICAL PRACTICE a perpetual, irrevocable, fully transferable, freely sublicensable, royalty-free, worldwide license to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Feedback for any purpose in CARE MEDICAL PRACTICE’s discretion without restriction. The foregoing license to Feedback shall survive the termination or expiration of this TOU for any reason.
You agree to indemnify, defend, and hold harmless CARE MEDICAL PRACTICE and its officers, directors, employees, agents, successors, and assigns from and against any losses, costs, liabilities, damages, and expenses (including reasonable attorney’s fees) relating to or arising out of Your violation of (a) this TOU, (b) any personal or proprietary rights of a third party, or (c) any applicable laws, rules, or regulations. CARE MEDICAL PRACTICE reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You will fully cooperate with CARE MEDICAL PRACTICE in asserting any available defenses.
Disclaimers and Excluded Liability
CARE MEDICAL PRACTICE DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL OPERATE ERROR-FREE OR ON AN UNINTERRUPTED BASIS. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW CARE MEDICAL PRACTICE HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT CARE MEDICAL PRACTICE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE WHATSOEVER REGARDING THE QUALITY, ACCURACY, EFFECTIVENESS, LEGALITY, RELIABILITY, OR TIMELINESS OF ANY SERVICES, CONTENT, OR INFORMATION MADE AVAILABLE IN CONNECTION THEREWITH OR ANY RESULTS OBTAINED THEREFROM. YOU AGREE THAT YOUR USE OF AND ACCESS TO THE PLATFORM ARE ENTIRELYAT YOUR OWN RISK, AND THAT YOU ARE SOLELY LIABLE AND RESPONSIBLE FOR THE RESULTS OF SUCH USE AND ACCESS, SUCH THAT CARE MEDICAL PRACTICE SHALL HAVE NO LIABILITY OR RESPONSIBILITY THEREFOR UNDER ANY LEGAL THEORY OR CAUSE OF ACTION NOW KNOWN OR HEREAFTER ESTABLISHED.
IN NO EVENT SHALL CARE MEDICAL PRACTICE BE LIABLE HEREUNDER, REGARDLESS OF THE FORM OF CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STATUTORY LIABILITY OR OTHERWISE), FOR ANY LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS, OR SERVICES, OR ANY INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS, REVENUES, PROFITS AND/OR GOODWILL, EVEN IF SUCH DAMAGES WERE REASONABLY FORSEEABLE OR IF CARE MEDICAL PRACTICE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE INSUFFICIENCY OR FAILURE OF ANY REMEDY PROVIDED HEREIN.
CERTAIN JURISDICTIONS AND LAWS MAY NOT PERMIT SOME OR ALL OF THE DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION. IN THE EVENT THAT SUCH A JURISDICTION OR LAW APPLIES TO THE SUBJECT MATTER OF THIS TOU, THE FOREGOING DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
Term, Termination, and Suspension
This TOU takes effect (or re-takes effect) at the moment You first access, use, install, and/or log into the Platform. CARE MEDICAL PRACTICE reserves the right at any time and on any grounds, including without limitation any reasonable belief of fraudulent or unlawful activity, to deny or suspend Your access to the Platform, or to any portion thereof, in order to protect its name and goodwill, its business, its ownership and other rights in the Platform or any content or information therein, the security and stability of the Platform, and/or the rights of others. This TOU terminates automatically if You fail to comply with any provision hereof, subject to the survival rights of certain provisions identified below. You may also terminate this TOU at any time by ceasing to use the Platform, but each re-access or renewed use of the Platform will reapply the TOU to You.
Upon termination or expiration of the TOU for any reason, all licenses granted by CARE MEDICAL PRACTICE hereunder shall immediately terminate, and You must immediately cease all use of the Platform. The provisions of this TOU concerning CARE MEDICAL PRACTICE’s proprietary rights, Feedback, disclaimers of warranty, limitations of liability, waiver and severability, entire agreement, indemnification rights, arbitration, class action waiver, injunctive relief, and governing law will survive the termination of this TOU for any reason.
Without limiting the foregoing, CARE MEDICAL PRACTICE reserves the right, in its sole discretion, to terminate or suspend Your access to the Platform or any feature or portion thereof at any time, without notice to You, if CARE MEDICAL PRACTICE reasonably determines or suspects that You are in violation of this TOU.
In the event the parties hereto are not able to resolve any dispute between them arising out of or concerning this TOU, or any provisions hereof, whether arising in contract, tort, or otherwise at law or in equity for damages or any other relief, then such dispute shall be resolved exclusively through final and binding arbitration pursuant to the Federal Arbitration Act, conducted by a single neutral arbitrator and administered under the Commercial Arbitration Rules of the American Arbitration Association. The exclusive site of such arbitration shall be in New York, New York. The arbitrator’s award shall be final, and judgment may be entered upon it in any court having jurisdiction. The prevailing party shall be entitled to recover its costs and reasonable attorney’s fees. The entire dispute, including the scope and enforceability of this arbitration provision, shall be determined by the arbitrator. This arbitration provision shall survive the termination of this TOU for any reason. Notwithstanding the foregoing, CARE MEDICAL PRACTICE may bring a claim for injunctive relief against Your violation of this TOU in any court of competent jurisdiction.
Class Action Waiver
BY USING THE PLATFORM AND AGREEING TO THESE TERMS, YOU HEREBY WILLINGLY, EXPRESSLY, AND KNOWINGLY WAIVE ALL RIGHT TO BRING OR PARTICIPATE IN ANY CLASS-ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR PRIVATE ATTORNEY-GENERAL ACTION BROUGHT UNDER OR IN CONNECTION WITH THIS TOU OR YOUR USE OF THE PLATFORM. YOU MAY NOT BRING ANY CLAIM, SUIT, OR OTHER PROCEEDING TO ENFORCE THIS TOU AS THE MEMBER OF ANY CLASS OR AS PART OF ANY SIMILAR COLLECTIVE OR CONSOLIDATED ACTION.
This TOU is governed by the laws of the State of New York, without reference to its principles of conflict of laws. Subject to the foregoing arbitration requirements, any claim, suit, or other proceeding brought between the You and CARE MEDICAL PRACTICE under this TOU shall be adjudicated exclusively in the state and federal courts sitting in New York, New York, and You hereby expressly submit to such jurisdiction for the final resolution thereof.
The Platform may not be used or accessed from or in any jurisdiction that does not give effect to all provisions of this TOU, including without limitation this paragraph.
The relationship between You and CARE MEDICAL PRACTICE under this TOU is that of independent contractors, and nothing herein or in Your use of the Platform shall be construed as creating any joint venture, partnership, employment, or agency relationship.
Security and Compliance
CARE MEDICAL PRACTICE reserves the right to view, monitor, and record Your activity on the Platform without notice or permission from You. CARE MEDICAL PRACTICE’s provision of the Platform is subject to existing laws and legal process, and nothing contained herein shall restrict or reduce CARE MEDICAL PRACTICE’s ability to comply with governmental, court, and law enforcement requests or requirements involving Your use of the Platform or information provided to or gathered by CARE MEDICAL PRACTICE with respect to such use.
You represent and warrant that You are not: (a) located in a country that is subject to a U.S. government embargo or sanction; or (b) listed on any U.S. government list of prohibited or restricted parties. You hereby agree that (i) You will comply with all applicable sanctions and export control laws, and (ii) You are solely responsible for ensuring that the Platform is used, disclosed, and/or accessed only in accordance with all applicable sanctions and export control laws.
Severability and Waiver
If any part of this TOU is determined to be invalid or unenforceable pursuant to court order or other operation of applicable law, such provision shall be deemed reformed or severed from this TOU to the minimum extent required by such order or law, and the remainder of this TOU shall continue in full force and effect to the maximum extent permitted under applicable law.
CARE MEDICAL PRACTICE’s failure to insist on strict performance of any of this TOU will not operate as a waiver of any subsequent default or failure of performance by You. No waiver by CARE MEDICAL PRACTICE of any right under this TOU will be deemed to be either a waiver of any other right or provision or a waiver of that same right or provision at any other time.
You acknowledge that any breach, threatened or actual, of this TOU would cause irreparable injury to CARE MEDICAL PRACTICE not readily quantifiable as money damages, such that CARE MEDICAL PRACTICE would not have an adequate remedy at law. You therefore agree that CARE MEDICAL PRACTICE shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any such breach of Your obligations, without the necessity of posting bond or other security.
Changes to Terms
Please note that CARE MEDICAL PRACTICE reserves the right to change the terms and conditions of this TOU by posting a revised set of terms to this location, and/or providing such alternate notification to You as may be expressly required by applicable law. In addition, CARE MEDICAL PRACTICE may add, modify, or delete any aspect, component, or feature of the Platform, but CARE MEDICAL PRACTICE is not under any obligation to add any upgrade, enhancement, or modification. Your continued use of the Platform following any announced change will be deemed as conclusive acceptance of any change to the TOU. Accordingly, please review the TOU on a periodic basis.
If You have any questions or comments regarding this TOU, please contact CARE MEDICAL PRACTICE at:
CARE MEDICAL PRACTICE
564 Niagara Street
Buffalo, NY 14201