THESE TERMS OF SERVICE WILL BECOME A LEGALLY BINDING AGREEMENT (this “Agreement”) BETWEEN YOU AND HEALTHIMATION, LLC. WHEN YOU INDICATE ACCEPTANCE AS PROVIDED BELOW. YOU SHOULD READ THIS AGREEMENT CAREFULLY BEFORE CLICKING TO INDICATE ACCEPTANCE.
1. Not Healthcare Advice. THE SERVICE (as defined below) IS NOT INTENDED TO PROVIDE HEALTHCARE, MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. THE INFORMATION, SERVICES AND OTHER CONTENT PROVIDED ON AND THROUGH THIS SERVICE, INCLUDING INFORMATION THAT MAY BE PROVIDED ON THE SERVICE (DIRECTLY OR VIA LINKING TO THIRD-PARTY SITES) ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. PLEASE CONSULT WITH YOUR PHYSICIAN OR OTHER HEALTHCARE PROFESSIONAL (COLLECTIVELY, "HEALTHCARE PROFESSIONAL") REGARDING ANY MEDICAL OR HEALTH-RELATED DIAGNOSIS OR TREATMENT OPTIONS. THE INFORMATION PROVIDED ON THE SERVICE, INCLUDING INFORMATION RELATING TO MEDICAL AND HEALTH CONDITIONS, PRODUCTS AND TREATMENTS, IS OFTEN PROVIDED IN SUMMARY OR AGGREGATE FORM. AGAIN, IT IS NOT INTENDED AS A SUBSTITUTE FOR ADVICE FROM YOUR HEALTHCARE PROFESSIONAL. YOU SHOULD NOT USE THE INFORMATION OR SERVICES ON THE SERVICE FOR DIAGNOSIS OR TREATMENT OF ANY HEALTH ISSUE OR FOR PRESCRIPTION OF ANY MEDICATION OR OTHER TREATMENT. YOU SHOULD ALWAYS CONSULT WITH YOUR HEALTHCARE PROFESSIONAL, BEFORE USING ANY MEDICATION OR NUTRITIONAL, HERBAL OR HOMEOPATHIC PRODUCT, BEFORE STARTING ANY DIET OR EXERCISE PROGRAM OR BEFORE ADOPTING ANY TREATMENT FOR A HEALTH PROBLEM.
2. Permission to Use. Subject to the terms and conditions of this Agreement, Healthimation hereby provides you with the right and license to access and to use Healthimation’s online software (the “Service”) for your lawful, non-commercial personal use. You will be able to use the Service for as long as you remain a subscriber of the Services in good standing, except as otherwise provided in this Agreement. As between you and Healthimation, Healthimation will own all right, title and interest in and to all intellectual property rights in the Service including, without limitation, the contents of any of our websites or Services, such as the compilation and arrangement of content including text, graphics, images and other materials, and the hypertext markup language (HTML), scripts, active server pages (ASP), content provided by RSS feed, Atom feed or other web feed or other content or software used in or provided through any such website or Service. Healthimation™, the Healthimation™ logo, HealthyMation.com™, WhyWait™ and the WhyWait logo™, and other marks are tradenames and trademarks of Healthimation. Healthimation’s tradename and trademarks may not be used by the your in connection with any product or service that is not offered by Healthimation or in any manner that is likely to cause confusion in the marketplace or that disparages or discredits Healthimation.
5. Email and Notices. You agree to accept emails from Healthimation in connection with your use of the Service, including any and all notices, statements, and other communications to you.
6. User Name and Password. You are prohibited from sharing your password and/or user name with any other party. You will be responsible for all activities that take place under your password and/or user name. You agree to immediately notify Healthimation if you become aware of any loss or theft or unauthorized use of your password and/or user name.
7. Communications. You must provide at your own expense the equipment and Internet connections that you will need to access and use the Service. Also, if you access the Service through wireless devices (e.g., cell phones), your carrier, such as a wireless carrier, may charge fees for alerts, web browsing, messaging and other services that require the use of airtime and wireless data services. Check with your carrier to verify whether there are any such fees that may apply to you. You are solely responsible for any costs you incur to access the Service through any wireless or other communication service.
8. Transmission Of Data. You acknowledge that the technical processing and transmission of Your Data is fundamentally necessary to your use of the Service. You expressly consent to Healthimation’s receipt and storage of Your Data, and you acknowledge and understand that the use of the Service will involve transmission of Your Data over the Internet, and over various networks, only part of which may be owned and/or operated by Healthimation. You acknowledge and understand that Your Data may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. You agree that Healthimation is not responsible for any of Your Data which are delayed, lost, altered, intercepted or stored without authorization during the transmission of any such data across networks not owned and/or operated by Healthimation, including, but not limited to, the Internet.
9. Service Depends On Your Data. You understand that certain features of and reports provided in connection with the Service may not be available to you if you do not provide sufficient information to Healthimation and may not be accurate, current or complete if Your Data contains any inaccuracies.
10. Links/Third-Party Data. Products and Services. The Service may provide, or third-parties may provide, links to other Internet sites or resources. Because Healthimation has no control over such sites and resources, you agree that Healthimation is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, services, or other materials on or available from such sites or resources. In addition, you agree that Healthimation is not responsible for any third-party product or information that may be provided to you through the Service (e.g., through the integration of the Service with a third-party online application). Healthimation may provide to you certain reports that contain information licensed by Healthimation from third-parties who restrict the use of such reports to use within the United States. You agree that if any reports provided to you by Healthimation specify that they may be used only within the United States, you will only use such reports within the United States.
The use, posting, distribution, or publication ON THE SERVICE of any LISTING, content, PRODUCT OR INFORMATION does not constitute or imply an endorsement, recommendation, advice, opinion or comment by HEALTHIMATION nor an assurance of legality, quality or safety by HEALTHIMATION. We cannot guarantee, and assume no responsibility for verifying, the TRUTHFULNESS OR accuracy of the information provided by others, including other users of the SERVICES. HEALTHIMATION shall not be responsible for any offer, sale, purchase or other transaction made, content posted, or other communications made by any THIRD-PARTY posting information or offering services or PRODUCTS thROUGH THE SERVICES.
Any contacts you make with another person or entity, or decisions you make facilitated through the SERVICES are strictly on your own. You must do your own due diligence and use your best judgment.
11. Suspension for Ongoing Harm. You agree that Healthimation may suspend your access to the Service if Healthimation reasonably concludes that your use of the Service is causing, or is may possibly cause, immediate, material and ongoing harm to Healthimation or others. In the extraordinary event that Healthimation suspends access to the Service under this section, Healthimation will use commercially reasonable efforts to resolve the issues causing the suspension of Service. You agree that Healthimation will not be liable to you or any third-party for any suspension of the Service under such circumstances as described in this Section 11.
12.1. Security, Data and Integrity. Healthimation warrants that Healthimation will use commercially reasonable efforts to safeguard and accurately maintain the integrity of Your Data, utilizing at a minimum industry standard security and backup procedures. In the event of a breach of this provision, Healthimation will use commercially reasonable efforts to correct Your Data or restore Your Data as quickly as commercially practicable.
12.2. Disclaimer of Warranties. EXCEPT AS STATED IN THIS SECTION 12, HEALTHIMATION DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR FITNESS FOR A PARTICULAR PURPOSE, AND THE SERVICE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. HEALTHIMATION DOES NOT REPRESENT THAT YOUR USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL BE ACCURATE, RELIABLE, COMPLETE OR MEET YOUR REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE WILL BE CORRECTED OR THAT THE SYSTEM THAT MAKES THE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN THIS SECTION 12 ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY HEALTHIMATION, AND THE REMEDIES PROVIDED IN THIS SECTION 12 ARE THE SOLE AND EXCLUSIVE OBLIGATIONS OF HEALTHIMATION WITH RESPECT TO ANY BREACH OF SUCH WARRANTIES. YOU ASSUME ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR YOUR PURPOSES.
13. Limitations of Liability. IN NO EVENT WILL HEALTHIMATION, its affiliates, agents, suppliers, partners, information providers, and their respective officers, directors, employees, contractors and agents BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION DIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, AND INDIRECT DAMAGES OF ANY TYPE OR KIND TO THE MAXIMUM EXTENT PERMITTED BY LAW ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR INABILITY TO USE ANY SERVICE. If notwithstanding the foregoing it is found by a court of competent jurisdiction that Healthimation is liable to you for damages, Healthimation’s maximum aggregate liability to you will in no case exceed the actual direct damages arising as a result of the act or omission complained of or $500, whichever is less. The essential purpose of this provision is to limit the potential liability of Healthimation from this Agreement. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply.
14. Indemnification and Release.
14.1. As a material inducement to provide you with use of the Services, you hereby indemnify, defend and hold Healthimation, and its officers, directors, owners, agents, partners, information providers, and affiliates (collectively, the “Indemnified Parties”) harmless from and against any and all damages, liability, claims, actions, demands and costs incurred by the Indemnified Parties in connection with any claim arising out of any breach by you of this Agreement, including, reasonable attorneys' fees and costs.
14.2. If you have a dispute involving the Services with a third party, you release each of the Indemnified Parties from all damages, liability, claims, actions, demands and costs of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
15. Infringement Notice.
It is Healthimation's policy to respond to claims of intellectual property infringement. We will promptly process and investigate notices of alleged infringement and take appropriate actions under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) (“DMCA”) and other applicable intellectual property laws. In accordance with the DMCA, notifications of claimed copyright infringement should be submitted to the following Designated Agent for our website: [firstname.lastname@example.org] or mailed to the following address:
Attn: Legal Department/DMCA Compliance
745 Atlantic Ave
Boston, MA 02110
To be effective under the DMCA, the notification must be a written communication that includes the following:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on our website are covered by a single notification, a representative list of such works on our website;
3. 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 us to locate the material;
4. Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted;
5. A statement that the complaining party has 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
6. A statement that the information in the notification is accurate and, unde penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
16. Miscellaneous. This Agreement will inure to benefit and bind the parties hereto, and their successors and assigns, but neither party may assign this Agreement without written consent of the other, except to a related entity or the successor of all or substantially all of the assignor’s business or assets to which this Agreement relates. This Agreement, including all documents incorporated herein, represents the entire agreement of the parties and supersedes all prior discussions and/or agreements between the parties and is intended to be the final expression of their agreement concerning the subject matter of this Agreement. Except as expressly set forth herein, it will not be modified or amended except in writing signed by both parties. Healthimation makes no claims that any of the Services appropriate or may be used or downloaded outside of the United States. Access to the Services may not be legal by certain persons, or in certain countries. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Each party shall comply with all applicable export laws, restrictions, and regulations of any United States or foreign agency or authority and will not export or re- export, or allow the export or re-export of any product, technology or information it obtains or acquires in connection with the Services (or any direct product thereof) in violation of any such laws, restrictions or regulations. If you access the Services from outside of the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction. This Agreement will be governed in accordance with the laws of the Commonwealth of Massachusetts and any controlling U.S. federal law. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement (or the Service) will be subject to the exclusive jurisdiction of the state and federal courts located in Massachusetts. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. Healthimation will not be liable for any loss or delay resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage, war or military hostilities, or criminal acts of third-parties.