TERMS AND CONDITIONS OF USE
Ultimate Opinions in Medicine LLC, d/b/a Precisca and its subsidiaries (“Company,” “we,” “us,” or “our”) provides this website (this “Site”) as a service for our customers. The following terms and conditions of use (these “Terms”) set forth the terms, conditions, and rules that govern your access to and use of this Site, the services, and any software or mobile applications provided by Company (collectively, the “Services”), and any information, text, graphics, software, tools, documentation, proprietary content, or other data available through the Services (collectively referred to as the “Materials”). Collectively, all of the Materials and Services are called the “Service.”
BY CLICKING THE “I ACCEPT” BOX AT THE END OF THESE TERMS, REGISTERING AS A USER, OR USING THE SITE YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE REVIEWED, UNDERSTAND, AND ACCEPT THESE TERMS. YOUR ACCESS TO AND USE OF THE SERVICE IS CONDITIONED ON YOUR ACCEPTANCE OF AND COMPLIANCE WITH THESE TERMS. PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SERVICE. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT CLICK THE “I ACCEPT” BOX OR OTHERWISE REGISTER OR USE THE SITE. NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH THE COMPANY. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
Use of Site and Service.
By using this Site, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a “Minor”), that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the Site and agree to its Terms. If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to these Terms and to fully indemnify and hold harmless the Company if the Minor breaches any of these Terms. If you are not at least 13 years old, you may not use the Site at any time or in any manner or submit any information to the Company or the Site. You may use the Service only in compliance with these Terms and all applicable local, state, national, and international laws, rules, and regulations. We may change, edit, modify, delete, revise, or update these Terms from time to time, and we will provide written notice of such changes to you and give you an opportunity to accept the revised Terms. If you do not accept the revised Terms, Company is entitled to terminate these Terms and disable your account. Access to and use of the Service is solely for your purchase of Company products or services for personal use, information, education, and communication with Company. In addition to other prohibitions as set forth in these Terms, you are prohibited from using the Service: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of this Site, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of this Site, other websites, or the Internet. We reserve the right to terminate your use of the Service, or take other corrective action for violating any of the prohibited uses.
The Service that Company provides is always evolving and the form and nature of the Service that Company provides may change from time to time without prior notice to you. In addition, Company may stop (permanently or temporarily) providing the Service (or any features within the Service) to you or to users generally and may not be able to provide you with prior notice. We also retain the right to create limits on use and storage at our sole discretion at any time without prior notice to you. If you object to any changes to the Service, your sole recourse will be to cease using it. Continued use of the Service following posting of any such changes will indicate your acknowledgement of such changes and satisfaction with the Service as modified.
The Service is intended to comply with United States and particular state laws and regulations. If you are a non-U.S. based user, be advised that other countries may have laws and regulatory requirements that are different than those in both the United States and individual states. By using the Service, you represent that you have consulted your applicable local laws that may apply to products and services offered via this Site. Company reserves the right, but is not obligated, to limit the sales of its products or services to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis. All descriptions of products and services and pricing are subject to change at any time without notice at the sole discretion of Company. Company reserves the right to discontinue any product or service at any time. Any offer for any product or service made on this Site is void where prohibited.
No Professional Advice.
Criteria for Case Selection.
As the Company strives to provide the maximum educational value to the providers submitting cases for multidisciplinary review, providers must adhere to the following criteria for proper submission of cases:
Cases must be submitted using our intake form for that particular diagnosis, or at a minimum have all the required information to allow completion of the form on behalf of the submitter. Incomplete forms or medical records will not be processed for inclusion in a panel discussion.
Providers must have source documentation of the content of these forms available to submit for verification purposes at Company’s request.
Patient’s signature on Company’s informed consent form for release of information and discussion of the case, as well as permission to archive for future educational use, must be obtained.
Case submissions, once complete, will be scheduled for panel discussion on a first-come, first-served basis, provided the tumor board slots are available.
Substantially similar cases will be lumped together as if they are a single case with distinguishing nuances incorporated in the discussion to highlight differences in various approaches, if any.
Company reserves the right, at its sole discretion, to deem cases unsuitable for inclusion in a multidisciplinary panel discussion. Priority will be given to newly diagnosed cases that have not started treatment, where the educational value to the provider is of more practical benefit.
Company does not guarantee that a case will be reviewed by any specific medical specialist or reviewed at all. You may personally contact any medical specialist that you learn about through the Site for your personal purposes.
Company may, at its sole discretion, convene single-specialty panels (e.g. Medical Oncology only) for cases that do not require input from a surgeon or a radiation oncologist and need an educational discussion surrounding treatment with drugs such as chemotherapy, immunotherapy, hormonal therapy, antibody therapy, antibody-drug conjugates, vaccines or experimental agents, etc.
While the Company will make an effort to accommodate as many cases as possible within reason, the Company does not guarantee that any particular case will be reviewed, whether due to reasons such as, but not limited to, lack of available slots, unsuitability of the case, or incomplete information or otherwise. The Company may notify the submitting provider and attempt to direct the provider to existing educational material in its archives that may be applicable to the case or point to additional resources, but has no obligation to do so. The Company does not guarantee all submissions will lead to a presentation and discussion.
The trademarks, trade names, trade dress, logos, and service marks (collectively, the “Trademarks”) displayed on this Site are the registered and/or unregistered Trademarks of Company or such third parties that may own the displayed Trademarks. Nothing contained on this Site or in these Terms serves to grant to you, by implication or otherwise, any license or right to use any Trademarks displayed on this Site without the written permission of Company or such third party that may own the displayed Trademarks. The Trademarks, text, logos, images, graphics, photos, video files, application functionality, or any other digital media, and their arrangement on this Site (collectively, the “Content”) are all subject to patent, copyright, trademark, unfair competition and other applicable intellectual property protection. Without our express written permission, Content may not be copied for any public or commercial use or distribution or modified, processed, or reposted to other websites. You may download, copy, or print the Content of this Site for your personal non-commercial use only; however, no right, title, or interest in any of the Content of this Site is transferred to you as a result of any such downloading, copying, printing, or use of this Site. License to User Comments and Submissions.
This Site may provide you with the opportunity to submit comments, information, data, text, software, messages, feedback, or other materials (each, a “Submission” and collectively, the “Submissions”). By submitting any Submissions to this Site, you are representing that:
you own or have unencumbered, transferable rights and permissions, including, without limitation, the right of publicity to the Submissions that you submit;
your Submissions do not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
any information contained in your Submissions is not known by you to be false, inaccurate, or misleading; your Submissions do not violate any law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising);
your Submissions are not, and may not reasonably be considered to be, defamatory, libelous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another’s privacy;
your Submissions do not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files;
and your Submissions do not contain or constitute any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.
If you make a Submission to this Site, you automatically grant Company a perpetual, worldwide, unlimited, irrevocable, transferable, assignable, non-exclusive, royalty-free license for Company to use that Submission for any lawful purpose whatsoever, including, without limitation, the right to sub-license that Submission to third parties for their lawful uses and purposes. Subject to existing laws, you waive any moral rights that you or your licensors may have in any Submission. The posting of those Submissions does not constitute Company’s endorsement of those Submissions. Company is not responsible or liable for any claim in connection with Submissions. We may modify or adapt your Submissions in order to transmit, display, or distribute it over computer networks and in various media and/or make changes to your Submissions as are necessary to conform and adapt those Submissions to any requirements or limitations of any networks, devices, services, or media.
Third-party links on this Site may direct you to other websites that are not affiliated with Company. Further, those websites and the products and services sold on those websites may be subject to additional or separate legal, regulatory, or product and service requirements. Company is not liable for the availability or accuracy of such websites or the content, privacy policies, or any harm or damages related to the purchase of goods, services, resources, content, or any other transactions (“Third-Party Products”) made in connection with any third-party websites. Please review carefully the third party’s policies and practices and make sure you understand them before you engage in any transaction. The existence of such third-party links should not be considered an endorsement or recommendation of those sites or of any Third-Party Products or of any party that is associated with those sites. Complaints, claims, concerns, or questions regarding Third-Party Products should be directed to the third party. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or Third-Party Products.
Registration, Accounts and Passwords.
In order to access certain member-only or password-restricted areas of this Site and to use certain services and Materials offered on and through this Site, you must register with Company for an account and receive a password. When signing up for membership, you will be able to select a “provider” account or a “patient” account. A “provider” is for a doctor, nurse practitioner, or other health care professional who is involved in the treatment of a person. A “patient” includes a person who is receiving medical care or his or her family member, or a person interested in learning the views of experts in a particular field or area of medicine. You agree to provide true, correct and complete registration information, including whether you are a “provider” or a “patient.” You are responsible for the personal protection, safeguard, and security of any password or username that you may use to access this Site. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers, and symbols) with your account. Your username and password are for your personal use only. You agree you will not permit others, including those whose account have been suspended or terminated, to access this Site using your username or password. If you use this Site, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer. You are responsible for all direct or indirect losses or damages and are liable for all activity conducted on this Site that can be linked or traced back to your username or password. You are obligated to immediately report a lost or stolen password or username to us or any other breach of security. All the information that you provide when registering for an account, and otherwise through the Service, must be accurate, complete, and up to date.
Should you purchase a subscription to our Service (“Subscription”), you agree to pay all fees or charges to your account for the Subscription based on the Company’s fees, charges, and billing terms in effect as shown on the [Pricing Page]. If you do not pay on time or if the Company cannot charge your payment method for any reason, the Company reserves the right to either suspend or terminate your access to the Service. You are expressly agreeing that the Company is permitted to bill you for the applicable fees, any applicable tax, and any other charges you may incur in connection with your use of the Service and the fees will be billed to your payment method designated on your billing profile, and thereafter at regular intervals for the remainder of the term of your Subscription. If you have a balance due on any account, you agree that the Company may charge such unpaid fees to your method of payment or otherwise bill you for such unpaid fees.
Company may revise its prices at any time by posting an amended fee schedule on this Site. Continued use of the Services after an amended price schedule is posted constitutes your acceptance of the price changes. The Subscription will be subject to auto-renewal for additional periods of the same term as your original Subscription term, unless you or Company requests termination at least thirty (30) days prior to the end of the then-current term. We will bill you for additional terms via the payment method on your billing profile at the time of renewal. After receiving the payment in full, changes to the account will be reflected upon the next account renewal. Requests to terminate your Subscription should be submitted from within the Company’s web application.
CANCELLATION TERMS: YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME, AND SUCH CANCELLATION SHALL BECOME EFFECTIVE UPON EXPIRATION OF YOUR THEN-CURRENT SUBSCRIPTION TERM. YOU AGREE AND UNDERSTAND THAT YOU WILL BE CHARGED SUBSCRIPTION FEES UNTIL THE EXPIRATION OF YOUR THEN-CURRENT SUBSCRIPTION TERM AND SUBSCRIPTION FEES WILL NOT BE REFUNDED, IN WHOLE OR IN PART, SUBJECT TO APPLICABLE LAW. YOU WILL NOT BE ELIGIBLE FOR A PRO-RATED REFUND OF ANY PORTION OF THE SUBSCRIPTION FEES PAID FOR ANY UNUSED DAYS OF THE THEN-CURRENT SUBSCRIPTION TERM. IF YOU CANCEL YOUR SUBSCRIPTION, YOU WILL ENJOY YOUR SUBSCRIPTION BENEFITS UNTIL THE EXPIRATION OF THE THEN-CURRENT SUBSCRIPTION TERM FOR WHICH YOU HAVE PAID, AND YOUR SUBSCRIPTION BENEFITS WILL EXPIRE AT THE END OF THE THEN-CURRENT SUBSCRIPTION TERM. IF YOU HAVE ANY PROBLEMS OR CONCERNS WITH YOUR CANCELLATION, PLEASE CONTACT US AT email@example.com FOR ASSISTANCE.
Restrictions on Materials and Use of the Service.
We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Materials or Submissions on the Service and to terminate users or reclaim usernames. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process, or governmental request; (ii) enforce these Terms, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security, or technical issues; (iv) respond to user support requests; or (v) protect the rights, property, or safety of Company, its users, and the public. In addition to the prohibitions set forth in Section 1 above, you may not do any of the following while accessing or using the Service: (i) access, tamper with, or use non-public areas of the Service, Company’s computer systems, or the technical delivery systems of Company’s providers; (ii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (iii) access or search, or attempt to access or search, the Service by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by Company (and only pursuant to these Terms), unless you have been specifically allowed to do so in a separate agreement with Company (NOTE: crawling the Service is permissible if done in accordance with the provisions of the robots.txt file, however, scraping the Service without the prior consent of Company is expressly prohibited); (iv) forge any TCP/IP packet header or any part of the header information in any e-mail or posting, or in any way use the Service to send altered, deceptive, or false source-identifying information; (v) use the provided trial or evaluation period to submit production data; or (vi) interfere with or disrupt (or attempt to do so) the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Service, or by scripting the creation of Materials in such a manner as to interfere with or create an undue burden on the Service. This list of prohibitions provides examples and is not complete or exclusive. The Company may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at the Company’s discretion, the Company will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Service or on the Internet.
You acknowledge that the Service is subject to the export control laws and regulations of the United States, and you represent and warrant that your access to, and use of, the Service, shall be in full compliance with such laws and regulations. You may not access, use, or otherwise export or re-export the Service except as authorized by United States law and the laws of the jurisdiction(s) in which the Service was obtained or accessed. In particular, but without limitation, the Service may not be accessed from, exported or re-exported (i) into any U.S. embargoed jurisdiction or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List or any other restricted party lists. By using the Service, you represent and warrant that you are not located in any such jurisdiction or on any such list, and that you are not acting for a person or entity that is located in any such jurisdiction or on any such list. You also agree that you will not use the Service for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. Company may, in its sole discretion, suspend or terminate your access to the Service and/or any associated account in the event of an actual or suspected breach of this section. No refund or other credit will be granted or otherwise provided to you in the event of such suspension or termination.
These Terms will remain in effect until you notify us that you no longer wish to use the Site, or you cease using the Site. Notwithstanding anything in these Terms to the contrary, the parties understand and agree that all terms and conditions of these Terms that may require continued performance, compliance, or effect beyond the termination date of these Terms will survive termination of these Terms and will be enforceable by the parties. Company reserves the right to terminate your access to and/or use of the Service immediately with or without cause and with or without notice, for any reason or no reason, including your failure to comply with any term or provision of these Terms, or for any action that Company determines, in its sole discretion, is inappropriate or disruptive to the Service or to any other user of the Service.
Choice of Law and Forum.
These Terms will be governed and construed in accordance with the laws of the State of Florida, without regard to its conflicts of law rules. For all disputes arising out of or relating to the Service or these Terms, you submit to exclusive personal jurisdiction and venue of the state and federal courts located in Palm Beach County, Florida and agree and consent that such courts are the exclusive forum for litigation of any claim or cause of action arising out of or relating to your use of this Site or the Service. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or relating to your use of this Site or the Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
As part of providing you the Service, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are part of the Service and you may not be able to opt-out from receiving them. By using the Service, you consent to receiving electronic communications from the Company. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Service. These electronic communications are part of your relationship with the Company. We will communicate with you by e-mail or by posting notices on this Site. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal communication requirements, including that such communications be in writing.
You agree to indemnify and hold Company and its affiliates, subsidiaries, managers, members, officers, employees, representatives, agents, and business partners and each of their respective successors and assigns harmless from and against any and all claims, damages, costs, losses, and expenses (including attorney and accounting fees) arising from or related to your use of the Service or breach of these Terms. Company reserves the right to assume or participate, at your expense, in the investigation, settlement, and defense of any such action or claim. HIPAA Business Associate Agreement.
If you are subject to the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), as a Covered Entity or Business Associate (as defined in HIPAA) and use the Service in a manner that causes Company to create, receive, maintain, or transmit Protected Health Information on your behalf, please contact a sales representative or [INSERT E-MAIL], in order to use the Service in a compliant manner. Unless otherwise agreed in writing, (i) Company does not intend that your use of the Service will create obligations to comply with HIPAA, (ii) Company makes no representations that the Service satisfies HIPAA requirements, and (iii) you agree not to use the Service in connection with any Protected Health Information (as defined in HIPAA).
Intellectual Property Infringement.
If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Site, please provide our designated agent with the following information:
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 and/or trademarked work claimed to have been infringed, or, if multiple 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 at the Site, and information reasonably sufficient to permit Company to locate the material.
Information reasonably sufficient to permit Company to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
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 and/or trademark owner, its agent, or the law.
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.
The Company’s agent for notice of claims of copyright or trademark infringement on this Site can be reached as follows:
Address: 980 North Federal Highway, Suite 110, Boca Raton, FLORIDA 33432
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Submitting a DMCA Counter-Notification
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to our designated agent that includes all of the following information:
Your physical or electronic signature;
Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which Company may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
The Company reserves the right, in its sole discretion, to terminate the account or access of any user of our Site or the Services who is the subject of repeated DMCA or other infringement notifications.
Limitations on Liability.
BY YOUR USE OF THE SERVICE YOU ACKNOWLEDGE THAT: (1) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK; (2) YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY SERVICING OR REPAIRS OF ANY EQUIPMENT THAT YOU USE IN CONNECTION WITH YOUR USE OF THE SERVICE; AND (3) NEITHER COMPANY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE WILL BE LIABLE FOR ANY DAMAGES OF ANY KIND RELATED TO YOUR USE OF OR INABILITY TO USE OUR SERVICE, INCLUDING, WITHOUT LIMITATION, FAILURE OF PERFORMANCE, damage to your computer equipment or other property, ERROR, OMISSION, INTERRUPTION, COMPUTER VIRUS, OR NETWORK OR INTERNET FAILURE, OR INDIRECT, SPECIAL, EXEMPLARY, EXTRAORDINARY, COMPENSATORY, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS, AND/OR LOSS OF OR DAMAGE TO PROPERTY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY RESERVES THE RIGHT TO ALTER OR REMOVE SITE CONTENT, OR SUSPEND OR TERMINATE YOUR USE IN ANY WAY, AT ANY TIME, FOR ANY REASON, WITHOUT PRIOR NOTIFICATION, AND COMPANY WILL NOT BE LIABLE IN ANY WAY FOR POSSIBLE CONSEQUENCES OF THAT ACTION.
BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH STATES, COMPANY’S LIABILITY IS LIMITED AND WARRANTIES ARE EXCLUDED TO THE GREATEST EXTENT PERMITTED BY LAW, BUT SHALL, IN NO EVENT, EXCEED $100.00.
YOUR ACCESS TO AND USE OF THE SERVICE OR ANY CONTENT IS AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE IS PROVIDED TO YOU “AS IS” AND “WITH ALL FAULTS.” COMPANY MAKES NO WARRANTY AND DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR THE COMPLETENESS, USE, AVAILABILITY, CONTENT ACCURACY, APPROPRIATENESS, SECURITY, RELIABILITY, OR PERFORMANCE OF THE SERVICE OR ANY CONTENT THEREON. AS A USER, YOU ASSUME ALL RISKS AND RESPONSIBILITIES FOR YOUR USE OR NON-USE OF THE SERVICE, AND COMPANY MAKES NO REPRESENTATION THAT THE CONTENT APPEARING ON OR DOWNLOADED FROM THIS SITE IS COMPATIBLE WITH YOUR COMPUTER OR FREE FROM ERROR OR VIRUSES. COMPANY WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICE OR ANY CONTENT. YOU ALSO AGREE THAT COMPANY HAS NO RESPONSIBILITY OR LIABILITY FOR THE DELETION OF, OR THE FAILURE TO STORE OR TO TRANSMIT, ANY CONTENT AND OTHER COMMUNICATIONS MAINTAINED BY THE SERVICE. WE MAKE NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH THE SERVICE, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. NO COMPANY EMPLOYEE, AGENT, OR REPRESENTATIVE IS AUTHORIZED TO MODIFY OR AMEND THIS WARRANTY. TO THE EXTENT ALLOWABLE BY EXISTING LAW, COMPANY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICE, THIS SITE, AND ITS CONTENT.
YOUR SOLE REMEDY AGAINST COMPANY FOR DISSATISFACTION WITH THE SERVICE OR ANY CONTENT IS TO STOP USING THE SERVICE OR ANY SUCH CONTENT. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.
DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.
Please Read This Provision Carefully. It Affects Your Legal Rights.
This Provision facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between you and us. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
This Provision provides that all disputes between you and us shall be resolved by binding arbitration because acceptance of These Terms constitutes a waiver of your right to litigation claims and all opportunity to be heard by a judge or jury. We prefer this because we believe arbitration is less drama-filled than litigation. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow these Terms and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Provision which means you would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give us an opportunity to resolve the Dispute which is first done by emailing to us at firstname.lastname@example.org the following information: (1) your name, (2) your address, (3) a written description of your claim, and (4) a description of the specific relief you seek. If we do not resolve the Dispute within forty-five (45) days after receiving your notification, than you may pursue your Dispute in arbitration. You may pursue your dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, your or we may choose to pursue a Dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN THIRTY (30) DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”). You may opt-out of this Provision by emailing us at email@example.com the following information: (1) your name; (2) your address; and (3) a clear statement that you do not wish to resolve disputes with us through arbitration. Either way, we will not take any decision you make personally. In fact, we promise that your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with us. But, we do have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or small claims court.
If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or we may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative procedures or rules apply to the arbitration.
Because this Portal and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or we may initiate arbitration in either Florida or the federal judicial district that includes your billing address.
Payment of Arbitration Fees and Costs – So long as you place a request in writing prior to commencement of the arbitration, we will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator’s hearing fees, costs and expenses upon your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. But, you will still be responsible for all additional fees and costs that you incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if you provide notice and negotiate in good faith with us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and we specifically agree to do so in writing following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of this Portal can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by accepting this Provision in these Terms, you and we are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and we might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.
This Provision shall survive the termination of your account with us or our affiliates and your discontinued use of this Portal. Notwithstanding any provision in these Terms to the contrary, we agree that if we make any change to this Provision (other than a change to the Notice Address), you may reject any such change and require us to adhere to the present language in this Provision if a dispute between us arises.
The provisions and conditions of these Terms constitute the entire agreement between Company and you related to the use of the Service and supersedes any prior agreements or understandings not incorporated in these Terms in connection with your use of the Service. These Terms may be modified only by a written amendment signed by the parties (including electronically).
Company does not waive any rights set forth in these Terms or our right to enforce these Terms by merely choosing not to exercise or enforce our rights in a particular circumstance. If any application of a provision of these Terms is held to be invalid or unenforceable to any extent, the remainder of these Terms, or the application of such provision in other circumstances, will not be affected by such holding and every other provision may be enforced to the fullest extent permitted by law.
You cannot assign or transfer your rights under these Terms to anyone without the prior written approval of Company. However, Company may assign or transfer it without your consent to a Company affiliate or in connection with a merger, acquisition, sale of all or substantially all of its assets, spin-out, divestiture, or other corporate or business combination transaction. Any attempted assignment in violation of this Section shall be void.
Should you have any questions concerning these Terms, or if you desire to contact us for any reason, please contact us at firstname.lastname@example.org, or by mail at 980 North Federal Highway, Suite 110, Boca Raton, FLORIDA 33432. Effective Date: July 1, 2020