Terms of Service
Last Updated: July 10, 2023
Thank you for using the Summus service (including our website and any other service that links to these terms, Member Services (defined below) and Peer-to-Peer Services (defined below), collectively, the “Service”), provided by Summus Global, Inc. (referred to herein as “Summus,” “we,” “us,” “our,” or similar pronouns). Please read these Terms (“Terms”) carefully before using the Service. By accessing the Service in any manner (whether automated or otherwise), you, and any company or organization on whose behalf you are acting, agree to be bound by these Terms and any additional terms and conditions that are referenced below or otherwise may apply to specific areas of the Service. We may ask you to review and accept supplemental terms that apply to your interaction with the Service through a specific app, product, or service.
You represent that you are legally able to accept these Terms, and affirm that you are of legal age to form a binding contract. If you are acting on behalf of a company, you represent that you have the authority to bind that company to the Terms. If you do not agree to these Terms, you may not use the Service.
We reserve the right to change these Terms from time to time. We will provide notice regarding changes to these Terms by email, or through your account or the Services, and we will request your assent to the updated Terms. If you do not agree to the updated Terms, we may restrict your further use of the Services without liability to you. By continuing to use the Service after the effective date of the updated Terms, you will be bound by the updated Terms.
IMPORTANT: SECTION 18 OF THESE TERMS CONTAIN A BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION IN THE “BINDING ARBITRATION” SECTION BELOW THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO ANY “DISPUTE” (AS DEFINED BELOW) BETWEEN YOU AND US OR OUR AFFILIATES. YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS FURTHER DESCRIBED IN THE “BINDING ARBITRATION” SECTION BELOW.
WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS: WHILE THERE ARE IMPORTANT POINTS THROUGHOUT THESE TERMS, PLEASE NOTE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS ON OUR LIABILITY AND THE TIME YOU HAVE TO BRING CLAIMS ARE EXPLAINED IN SECTIONS 20 THROUGH 22.
- SUMMUS SERVICES
Our consulting physicians, psychologists, and other licensed professionals (“Professionals”) provide our individual patient, health plan beneficiary and sponsored-employee members (“Individual Members”) with expertise regarding certain medical conditions associated with specialty medicine, including, information to help understand diagnoses, general counsel on physical or mental health issues, insight, and generalized information regarding potential treatment options (“Member Services”).
The Member Services are for informational purposes only, and our consulting Professionals are not authorized to diagnose, treat, prescribe, order, or provide other services to our members on behalf of Summus that would result in the formation of a physician-patient, therapist-client or other professional-client relationship or otherwise require the consulting Professional to be licensed in the jurisdiction where the Individual Member is located.
Our consulting Professionals also provide the following services to licensed physicians and other licensed professionals who provide services on behalf of our health care provider, health plan and other clients (“Provider Members”): (i) asynchronous, text-based interactions (including limited review of medical records); (ii) synchronous or asynchronous 5 – 10 minute video interactions (including limited review of medical records); or (iii) synchronous video consultation or remote written opinions with detailed review of medical records (collectively, “Peer-to-Peer Services”).
TERMS APPLICABLE TO INDIVIDUAL MEMBERS AND PROVIDER MEMBERS
- IMPORTANT NOTICES REGARDING MEMBER SERVICES
Summus does not recommend or endorse any specific tests, physicians, psychologists, products, procedures, opinions, or other information that may be mentioned within the Service. The Member Services are not a substitute for professional medical diagnosis or treatment, and reliance on any information provided by Summus or any of our consulting Professionals is solely at your own risk. Never rely on the Service in a potential or actual medical emergency.
Always consult your doctor, therapist, or your healthcare provider if you have any questions about a symptom or a medical condition, and before starting or stopping any treatment directed by your physician, therapist, or your healthcare provider, or before taking any drug, beginning psychotherapy, or changing your diet. Never disregard professional medical advice, or delay seeking medical advice or treatment based on information provided by Summus or by our Professionals.
IF YOU ARE THINKING ABOUT SUICIDE OR IF YOU ARE CONSIDERING HARMING YOURSELF OR OTHERS OR IF YOU FEEL THAT ANY OTHER PERSON MAY BE IN ANY DANGER OR IF YOU HAVE ANY MEDICAL EMERGENCY, YOU MUST IMMEDIATELY CALL THE EMERGENCY SERVICE NUMBER (911 IN THE US) AND NOTIFY THE RELEVANT AUTHORITIES. SEEK IMMEDIATE IN PERSON ASSISTANCE. THE SERVICE IS NOT DESIGNED FOR USE IN ANY OF THE AFOREMENTIONED CASES AND SUMMUS CANNOT PROVIDE THE ASSISTANCE REQUIRED IN ANY OF THE AFOREMENTIONED CASES.
- ADDITIONAL TERMS FOR PEER-TO-PEER SERVICES
If you use the Service as a Provider Member, in addition to all other provisions of these Terms, you:
- represent and warrant that you are a licensed physician or other licensed professional providing services on behalf of a health care provider, health plan or other customer of ours that has entered into an agreement for services with us (a “Services Agreement”), and you desire to access and use the Service (and the content and information provided through the Service) for purposes of facilitating, coordinating or managing the care of patients or plan beneficiaries of such customer.
- acknowledge and agree that the P2P Services are provided for information purposes only, as described in the applicable Services Agreement. Summus Global, Inc. is not a health care provider, and the Service does not provide or attempt to provide medical advice, assessments or treatment services. Summus Global, Inc. provides business and administrative support services to SG Medical, P.C. and the consulting Professionals affiliated with SG Medical, P.C. who may provide licensed services to you.
- agree to access and use the Service and all data and content accessed through the Service for permitted purposes under the applicable Services Agreement, and in compliance with and solely as permitted pursuant to the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act, and their implementing regulations (as amended from time to time, “HIPAA”) and state and security laws and requirements.
INDEPENDENCE OF CONSULTING PROFESSIONALS
Our consulting Professionals are not employees of Summus Global, Inc. Any opinions, advice, or information expressed by any such individuals are those of the individual and the individual alone and they do not reflect the opinions of Summus, its affiliates, or any other organization. Summus does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Service or by a licensee of Summus.
The inclusion of Professionals in the Service or in any directory on the Service does not imply recommendation or endorsement of such Professional nor is such information intended as a tool for verifying the credentials, qualifications, or abilities of any professional contained therein. The use of the Service by any entity or individual to verify the credentials of Professionals is prohibited. Reliance on any information provided by Summus, Summus employees, other parties who are accessible to you via the Service at the invitation of Summus, other users of the Service, or affiliates of Summus is solely at your own risk.
You agree to pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. You authorize Summus to immediately invoice your credit card or other payment account provided for all fees and charges due and payable and agree that no additional notice or consent is required. Unless otherwise agreed to by Summus in writing, all fees paid are non-refundable. If any services or payments for any goods or services are subject to sales tax in any jurisdiction, Summus may automatically charge and withhold such taxes for services to be delivered within such jurisdictions as it deems to be required. Your credit card information and other financial data needed to process your payment are collected and stored by third party payment processors, and we may collect some limited information. The use of your data by any such third-party payment processors is subject to their privacy policies. These third parties generally provide us with some limited information (such as a unique token that enables you to make additional purchases using the information they’ve stored, and your card’s type, expiration date, and last four digits). We reserve the right, without notice, to modify, change, terminate, or suspend service for a subscription plan you are on if, for any reason, payment for such plan is not made or cannot be processed on the due date.
We do not store any of your credit card or bank account information on our servers. Summus uses Braintree, a division of PayPal, Inc. (Braintree) for payment processing services. By using the Braintree payment processing services you agree to the Braintree Payment Services Agreement available at https://www.braintreepayments.com/legal/gateway-agreement, and the applicable bank agreement available at https://www.braintreepayments.com/legal/cea-wells.
TERMS APPLICABLE TO ALL USERS
- RULES OF CONDUCT
There are a few rules of conduct that you are required to follow when you use the Service:
- Do not “harvest” (or collect) information from the Service using an automated software tool or manually on a mass basis (unless we have given you separate written permission to do so). This includes, for example, information about other users of the Service, materials and files containing on the Service, and information about the offerings, products, services and promotions available on the Service.
- Do not use automated means to access the Service, or gain unauthorized access to the Service or to any account or computer system connected to the Service.
- Do not “stream catch” (download, store or transmit copies of streamed content).
- Do not obtain, or attempt to obtain, access to areas of the Service or our systems that are not intended for access by you.
- Do not “flood” the Service with requests or otherwise overburden, disrupt or harm the Service or its systems.
- Do not circumvent or reverse engineer the Service or its systems.
- Do not restrict or inhibit another user or users from using and enjoying the Service.
- Do not use the Service for any illegal purpose.
If you post something to the Service, such as comments or other content, do not post anything that:
- infringes any third-party intellectual property right (such as copyrights),
- is defamatory (i.e., something that is negative and untrue about another person or entity),
- divulges another person’s or entity’s confidential or private information or trade secret,
- is fraudulent, unlawful, threatening, harassing, abusive, obscene, or discriminatory,
- encourages criminal conduct,
- advertises or solicits business for products or services other than those that are offered and promoted on the Service, or
- contains any virus, malware, spyware or other harmful content or code.
You also must comply with all applicable laws and contractual obligations when you use the Service.
- OWNERSHIP OF CONTENT AND SUBMISSIONS
We or our representatives, licensors or partners own the intellectual property rights in the Service including but not limited to the software, code, architecture, design, user interface, graphics, including any use of any Summus brand, trademarks, copyrights, patents, or other protected or unprotected intellectual property (collectively, ”Intellectual Property”), and all content and materials displayed on the Service. You are not granted a license or any right, title, or interest in any Intellectual Property use in or made available through the Services. You may use the Service (including such content and materials) for your own personal, non-commercial use, but you may not use it for commercial purposes. You may not modify, copy, reproduce, republish, upload, post, transmit, translate, sell, create derivative works based on, exploit, or distribute in any manner or medium (including by email or other electronic means) any material from the Service unless explicitly authorized in these Terms or by the owner of the materials. You may, however, from time to time, download and/or print one copy of individual pages of the Service for your personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices.
You represent, warrant, and agree that no materials or content you submit or otherwise share on or through any of the Services (”Your Content”), violates or infringes upon the rights of any third party, including copyright, trademark, privacy, publicity, or other personal or proprietary rights, breaches or conflicts with any obligation, such as a confidentiality obligation, or contains libelous, defamatory, or otherwise unlawful material. You grant us and our affiliates a royalty free, perpetual, irrevocable, transferrable, assignable, sub-licensable, worldwide license to copy, aggregate, compile, modify, distribute (directly or indirectly), publish, transmit, create derivative works from and otherwise use Your Content, including alterations thereof, as necessary to provide the Service and for our business purposes, in any form, in any media, and via any technology we choose, whether it exists now or is created in the future. You waive any right to compensation of any type for Your Content. You represent and warrant that you have the right to grant us these rights in Your Content and that use by us will not violate any law.
To the extent you provide input, suggestions, enhancement requests, recommendations, corrections or other feedback related to the Service, you hereby grant us a perpetual, irrevocable right to use and fully exploit all such feedback for any lawful purpose without payment or other consideration to you.
- ACCOUNT REGISTRATION AND LOG IN
To access certain features or areas of the Service, you may be required to provide personal and/or demographic information as part of an account registration or log-in process. In addition, certain features of the Service are only available to our members or to our consulting Professionals, and to access those areas of the Service you will be required to log in using your username and email password.
You agree to provide true, accurate, current and complete information about yourself as prompted by the applicable registration or log-in form, and you are responsible for keeping such information up-to-date (this includes your contact information, so that we can reliably contact you). The information you submit must describe you (you may not impersonate another person or entity), and you may not sell, share or otherwise transfer your account information.
You are responsible for all activity occurring when the Service is accessed through your account, whether authorized by you or not. If you create an account on our Service, you are responsible for maintaining the strict confidentiality of your account password, and you will be responsible for any loss or damage arising from your failure to protect your password and any activity that occurs using your account credentials, whether or not you authorized such activity. You also agree to promptly notify us of any unauthorized use of your username, password or any other breach of security that you become aware of involving or relating to our Service by emailing us at firstname.lastname@example.org. In addition, you agree to log out from your account at the end of each session.
- ELECTRONIC COMMUNICATIONS
All communication between you and us via the Service uses electronic means, whether you visit the Service or send us an email, or whether we post notices on the Service or communicate with you via email. You may opt-out of promotional emails by clicking on the opt-out link within the e-mail you receive. For contractual purposes, you consent to receive communications from us in an electronic form, and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waivable rights.
- TEXT MESSAGE SERVICE
By submitting your mobile phone number when you create an account, you consent to Summus sending text messages (“Text Messaging”) as part of our normal workflow to alert you to consultant Professional availability, scheduled consultation times, and other related case steps. You represent that you are legally competent and have legal authority to form a contract and provide this consent with regard to the phone number you provide. You may not consent on behalf of someone else or provide someone else’s phone number. Text Messages may not be available on all carriers. Text Messaging will never include private health information and will always be linked back to your secure Summus Dashboard. You may receive 2-3 text messages, on average, during a consultation workflow. Message and data rates may apply. You can opt-out of our text messages any time by logging into your profile and adjusting your preferences or by e-mailing us at email@example.com. Please understand that it may take us a few days to process any opt-out request, we may still contact you by phone or email in connection with your relationship, activities, transactions, and communications with us. Print this page using your Internet-connected computer or device and web browser to retain a copy of your consent.
- COPYRIGHT INFRINGEMENT NOTICES
If you are a copyright owner who believes in good faith that your copyrighted material has been reproduced, posted or distributed on the Service in a manner that constitutes copyright infringement, please inform our designated copyright agent by sending written notice by email to firstname.lastname@example.org. Please include the following information in your written notice: (1) a detailed description of the copyrighted work that is allegedly infringed upon; (2) a description of the location of the allegedly infringing material on the Service; (3) your contact information, including your address, telephone number, and, if available, email address; (4) a statement by you indicating that you have a good-faith belief that the allegedly infringing use is not authorized by the copyright owner, its agent, or the law; (5) a statement by you, made under penalty of perjury, affirming that the information in your notice is accurate and that you are authorized to act on the copyright owner’s behalf; and (6) an electronic or physical signature of the copyright owner or someone authorized on the owner’s behalf to assert infringement of copyright and to submit the statement. Please note that the contact information provided in this paragraph is for suspected copyright infringement only. Contact information for other matters is provided elsewhere in these Terms or on the Service. We have a policy of terminating the Service usage privileges of users who are repeat infringers of intellectual property rights.
- CHANGES TO THE SERVICE
We reserve the right to, but are not obligated to, make changes to, or to suspend or discontinue (temporarily or permanently), the Service or any portion of the Service. You agree that we will not be liable to you or to any third party for any such modification, suspension or discontinuance.
- SUSPENSION OR TERMINATION OF ACCESS
We have the right to deny access to, and to suspend or terminate your access to, the Service, or to any features or portions of the Service, and to remove and discard Your Content, at any time and for any reason, including for any violation by you of these Terms. In addition, we have a policy of terminating the Service usage privileges of users who are repeat infringers of intellectual property rights. In the event that we suspend or terminate your access to and/or use of the Service, you will continue to be bound by the Terms that were in effect as of the date of your suspension or termination.
- LINKING POLICIES
We welcome links to the Service so long as: (i) the Service opens in a new browser window which displays the full version of a page of the Service (e.g., not merely one of its frames, and not an “in-line” link to a particular image or object on the Service), (ii) the link to this does not state or imply any sponsorship of your website or service by us or by the Service; and (iii) the Service is not display framed within or obfuscated by other content. You may not use on your site any trademarks, service marks or copyrighted materials appearing on the Service, including but not limited to any logos, without our express written consent. We reserve the right to revoke your right to link to the Service upon notice. If you receive such a notice from us, you agree to discontinue your link to the Service.
While we endeavor to protect the security and integrity of information and materials transmitted to and stored on the Service, due to the inherent nature of the Internet as an open global communications vehicle, we cannot guarantee that any information or material, during transmission through the Internet or while stored on our system or otherwise in our care, will be absolutely safe from intrusion by others, such as hackers.
If you correspond with us by e-mail, text message, or using Web forms like a “contact us” feature on our Service, you should be aware that your transmission might not be secure. A third party could view the information you send in transit by such means. We will have no liability for disclosure of your information due to errors or unauthorized acts of third parties during or after transmission.
If we believe that the security of your information or material in our care may have been compromised, we may seek to notify you of that development. If a notification is appropriate, we will endeavor to notify you as promptly as possible under the circumstances. If we have your e-mail address, we may notify you by e-mail. You consent to our use of e-mail as a means of such notification. If you prefer for us to use the U.S. Postal Service to notify you in this situation, please e-mail us at email@example.com.
Except to the extent prohibited by law, you agree to indemnify, defend and hold us and our affiliates, and our and their respective directors, officers, employees and agents, harmless from and against any claims, liabilities, losses, damages, costs and expenses, including reasonable attorneys’ fees, arising from (a) your use of the Service, (b) your submissions to the Service, or (c) any violation of these Terms or applicable law by you or by someone accessing the Service via your account. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you agree to cooperate with us in defending such claims. This indemnification, defense and hold harmless obligation will survive these Terms and the termination of your use of the Service.
- APPLICABLE LAW
These Terms, and the relationship between you and us, and all Disputes (defined below) will be governed by the laws of the United States and the State of New York, without giving effect to any principles of conflicts of law.
- NO WAIVER; SEVERABILITY
Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, you and we nevertheless agree that the court should endeavor to give effect to intentions as reflected in the provision, and the other provisions of these terms and conditions will remain in full force and effect.
- BINDING INDIVIDUAL ARBITRATION
Purpose. The term “Dispute” means any dispute, claim, or controversy between you and us or any of our affiliates regarding the Service or any related service thereon, 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 Section (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced. If you have a Dispute with us or any affiliate of ours or any of our or their officers, directors, employees, representatives, or agents that cannot be resolved through negotiation within the time frame described in the “Notice of Dispute” clause below, other than those matters listed in the Exclusions from Arbitration clause, you and the entity that you have a Dispute with agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this Section, and not litigate any Dispute in court. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
Exclusions from Arbitration. YOU AND US AND OUR AFFILIATES AGREE THAT ANY CLAIM FILED BY YOU OR BY US OR OUR AFFILIATE IN SMALL CLAIMS COURT ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION.
RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION, YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO SUMMUS GLOBAL, INC., C/O ROSS FRIEDBERG, GOLDSAND FRIEDBERG LLP, 2011 L STREET, NW, SUITE 500, WASHINGTON, DC, 20036 AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR ACCOUNT NUMBER, IF YOU HAVE ONE, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US OR OUR AFFILIATES THROUGH ARBITRATION.
Notice of Dispute. IF YOU HAVE A DISPUTE WITH US OR ANY OF OUR AFFILIATES, YOU MUST SEND WRITTEN NOTICE TO SUMMUS GLOBAL, INC., C/O ROSS FRIEDBERG, GOLDSAND FRIEDBERG LLP, 2011 L STREET, NW, SUITE 500, WASHINGTON, DC, 20036 TO GIVE US OR OUR AFFILIATE YOU HAVE A DISPUTE WITH THE OPPORTUNITY TO RESOLVE THE DISPUTE.
INFORMALLY THROUGH NEGOTIATION. You agree to negotiate resolution of the Dispute in good faith for no less than 60 days after you provide notice of the Dispute. If we or our affiliate you have a Dispute with does not resolve your Dispute within 60 days from receipt of notice of the Dispute, you, us or our affiliate you have a Dispute with may pursue your claim in arbitration pursuant to the terms in this Section.
Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL LEGAL ACTION, UNLESS BOTH YOU AND THE ENTITY WITH WHICH YOU HAVE A DISPUTE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
Initiation of Arbitration Proceeding/Selection of Arbitrator. If you or the entity you have a Dispute with elect to resolve your Dispute through arbitration, the party initiating the arbitration proceeding may initiate it with the American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com. The terms of this Section govern in the event they conflict with the rules of the arbitration organization selected by the parties.
Arbitration Procedures. Because the software and/or service provided to you by the entity you have a Dispute with concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, applicable federal or state law may also apply to the substance of any Disputes. For claims of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes (“Supplementary Procedures”) shall apply including the schedule of arbitration fees set forth in Section C-8 of the Supplementary Procedures; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and you provided notice to and negotiated in good faith with the entity you had a Dispute with as described above, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to the entity you have a Dispute with or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, excerpt for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration. You or the entity you have a Dispute with may initiate arbitration in either New York County, New York or the county in which you reside. In the event that you select the county of your residence, the entity you have a Dispute with may transfer the arbitration to New York County, New York in the event that it agrees to pay any additional fees or costs you incur as a result of the change in location as determined by the arbitrator.
Severability. If any clause within this Section is found to be illegal or unenforceable, that clause will be severed from this Section, and the remainder of this Section will be given full force and effect.
Continuation. This Section shall survive any termination of this Terms or the provision of the associated services to you.
ANY DISPUTE NOT SUBJECT TO ARBITRATION AND NOT INITIATED IN SMALL CLAIMS COURT WILL BE LITIGATED BY EITHER PARTY IN A COURT OF COMPETENT JURISDICTION ONLY IN the United States District Court for the Southern District of New York or, if such court would not have jurisdiction over the matter, then only in a New York State court sitting in the Borough of Manhattan, City of New York. Each Party submits to the exclusive jurisdiction of these courts and agrees not to commence any legal action under or in connection with the subject matter of these Terms in any other court or forum. Each Party waives any objection to the laying of the venue of any legal action brought under or in connection with the subject matter of these Terms in the Federal or state courts sitting in the Borough of Manhattan, City of New York, and agrees not to plead or claim in such courts that any such action has been brought in an inconvenient forum.
- DISCLAIMER OF WARRANTIES
TO THE FULLEST EXTENT PERMITTED BY LAW, WE PROVIDE THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND WHETHER EXPRESS OR IMPLIED (INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE AND NON-INFRINGEMENT). THIS MEANS THAT WE MAKE NO PROMISES THAT:
- THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME;
- THE SERVICE WILL MEET ANY PARTICULAR REQUIREMENTS OR PROVIDE ANY PARTICULAR RESULTS;
- THE INFORMATION ON THE SERVICE WILL BE ACCURATE OR UP-TO-DATE;
- THE SERVICE OR THE INFORMATION TRANSMITTED TO OR FROM IT OR STORED ON IT WILL BE SECURE FROM UNAUTHORIZED ACCESS;
- INFORMATION AND MATERIALS THAT YOU STORE IN YOUR ACCOUNT OR ON THE SERVICE WILL REMAIN RETRIEVABLE AND UNCORRUPTED (UNLESS WE PROMISE THIS IN A SEPARATE AGREEMENT WITH YOU); OR
- THE SERVICE WILL BE UNITERRUPTED OR ERROR-FREE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT DEFECTS WILL BE CORRECTED.
WE LIKEWISE MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY PRODUCTS OR SERVICES ORDERED OR PROVIDED VIA THE SERVICE. ANY PRODUCTS AND SERVICES ORDERED OR PROVIDED VIA THE SERVICE ARE PROVIDED “AS IS”, EXCEPT TO THE EXTENT, IF AT ALL, OTHERWISE SET FORTH IN A SEPARATE AGREEMENT ENTERED INTO BETWEEN YOU AND US OR BETWEEN YOU AND A THIRD PARTY.
IF YOU PURCHASE A PRODUCT OR SERVICE FROM A THIRD PARTY AFTER FOLLOWING AN AD OR LINK ON THE SERVICE, THE TERMS OF SALE FOR YOUR PURCHASE ARE BETWEEN YOU AND THE THIRD PARTY FROM WHOM YOU MADE THE PURCHASE. WE ARE NOT RESPONSIBLE FOR SUCH THIRD-PARTY PRODUCTS OR SERVICES OR FOR DISPUTES BETWEEN YOU AND THEIR SELLERS.
YOU AGREE THAT USE OF THE SERVICE IS AT YOUR OWN RISK. WE RESERVE THE RIGHT TO CHANGE OR MAKE CORRECTIONS TO ANY OF THE INFORMATION (INCLUDING PRICING) AT ANY TIME. WE CANNOT, AND DO NOT, GUARANTEE THE CORRECTNESS, TIMELINESS, PRECISION, THOROUGHNESS OR COMPLETENESS OF ANY OF THE INFORMATION AVAILABLE ON THE SERVICE, NOR WILL WE BE LIABLE FOR ANY INACCURACY OR OMISSION CONCERNING ANY OF THE INFORMATION PROVIDED ON THE SERVICE. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. WE HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE IN PRODUCT OR SERVICES LITERATURE, FREQUENTLY ASKED QUESTIONS DOCUMENTS, SUPPORT DOCUMENTATION, BY OUR CUSTOMER SERVICE AND SUPPORT AGENTS, AND OTHERWISE ON THE SERVICE OR IN CORRESPONDENCE WITH US OR OUR AGENTS. WE ARE NOT RESPONSIBLE FOR ANY CONTENT OR MATERIALS POSTED TO OUR SERVICE BY USERS, NOR FOR DISPUTES BETWEEN USERS, OR BETWEEN USERS AND THIRD PARTIES.
THESE DISCLAIMERS APPLY TO US AND OUR AFFILIATED AND RELATED COMPANIES AS WELL AS THIRD PARTIES THAT ARE INVOLVED IN THE CREATION, PRODUCTION OR DISTRIBUTION OF THE SERVICE, AND ANY OF THEIR EMPLOYEES, CONTRACTORS, AND AGENTS.
- LIMITATIONS OF LIABILITY
IF YOU ARE DISSATISFIED WITH THE SERVICE, OR ANY MATERIALS, PRODUCTS, OR SERVICES ON THE SERVICE, OR WITH ANY OF THE SERVICE’S TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE.
IN NO EVENT WILL WE OR ANY OF OUR AFFILIATES, OR ANY OF OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS, BE LIABLE FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES) ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE SERVICE (OR THE CONTENT, MATERIALS AND FUNCTIONS PROVIDED AS PART OF THE SERVICE, INCLUDING ANY INFORMATION PROVIDED BY OUR CONSULTING PHYSICIANS OR THE FAILURE OF ANY CONSULTING PHYSICIAN TO PROVIDE INFORMATION), WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN IF WE KNEW, SHOULD HAVE KNOWN OR HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUBJECT TO AND WITHOUT LIMITING THE FOREGOING, YOUR RECOVERY OF DAMAGES, IF ANY, WILL NOT EXCEED THE GREATER OF (A) THE AMOUNT YOU HAVE ACTUALLY PAID TO US, IF ANY, FOR USE OF THE SERVICE, OR, IF APPLICABLE, FOR USE OF THE SPECIFIC FEATURE OR SERVICE FROM WHICH THE CLAIM IN QUESTION FIRST AROSE, OR (B) $100.00.
Certain states do not allow the exclusion or limitation of certain categories of damages, which means the above limitations may not apply to you. IN SUCH STATES, THE FOREGOING EXCLUSIONS AND LIMITATIONS WILL BE ENFORCED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.
- LIMITATION ON TIME TO BRING CLAIMS
These Terms, together with any additional terms and conditions that are referenced herein or otherwise may apply to specific areas of the Service, constitute the entire agreement between us and you with respect to the Service. You may not assign these Terms to any other person or entity.
If any provision of these Terms is found to be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. These Terms are not intended to benefit any third party, and do not create any third-party beneficiaries. Accordingly, these Terms may only be invoked or enforced by you or us.