Terms and conditions of use for individual users
Effective Date: March 1, 2021.
NextHealthMedia, LLC. (including its owners, operators, managers, officers, employees, contractors, agents, affiliates, and their respective successors and assigns) (the “Company”) operates www.zwivel.com. Through this website, the Company facilitates communications between individuals like you and participating health care providers (“Participating Health Care Providers”) and provides other services as set forth below and as may be provided by the Company from time to time (the “Services”). The information provided to Participating Health Care Providers is based on the information provided by individuals. The Services include various features of the Site (as defined below) which enable individuals to submit demographic, health, and other information about themselves, including, but not limited to photographs (at the user’s option, nude photographs but in no case are individuals permitted to post, provide or otherwise share inappropriate photographs of a sexual nature), e-mail correspondence, and questions to Participating Health Care Providers. The Services may include tools, newsletters, and various social networking platforms (“Social Platforms”). The Social Platforms may offer blogs, forums, chat rooms, message boards, discussion boards, networking, community features, and access to certain information in other users’ profiles as determined by the Company from time to time. Through the Social Platforms, to the extent such Social Platforms may exist, users may be able to read, transmit and post information and communications such as community answers to questions, comments to answers, comments to the Company’s blog, and e-mail correspondence.
For purposes of these Terms and Conditions of Use (“Terms and Conditions”), the term “Site” refers to www.zwivel.com, including all pages therein. www.zwivel.com is the website conduit on which the zwivel process resides and through which the Services are provided. A link to the zwivel process, referred to as “zwiveldirect”, is found on the website and in various marketing materials of each Participating Health Care Provider and is hosted by the Company. The Participating Health Care Providers control the content on their zwivel direct pages. Also, the terms “you” and “your” and words of similar import refer to users of the Site who are individuals. You may use the Site only if you are an individual eighteen (18) years of age or older residing in the United States. The Site is available only to individuals who can form legally binding contracts under applicable law. Any communication between you and Participating Health Care Providers through the Site is for general informational purposes only and does not create nor is it intended to create a physician-patient relationship as defined by federal and state law. You agree that no such relationship shall be established unless and until you meet with the Participating Health Care Provider in person for an initial consultation at the Participating Health Care Provider’s offices and the Participating Health Care Provider has accepted you as a patient in writing.
These Terms and Conditions govern use of the Site and constitute a binding contract between you and the Company. By using the Site, you acknowledge that you have read, understood and agree to be bound by these Terms and Conditions. You are personally liable for the actions you take while using this Site.
USE OF WEBSITE:
Subject to these Terms and Conditions, the Company will permit your use of the Site.
The Company reserves the right at any time in its sole discretion to modify or discontinue the Site or to modify or discontinue any information or other content contained on the Site, whether posted by the Company, you, other individual users, Participating Health Care Providers or others. In addition, the Company reserves the right to terminate or limit your access to any part or the entire Site for any reason or no reason. You acknowledge and agree that the Company shall not be liable to you or any third party for any claim relating to the termination or limitation of your access to any part or all of the Site. Moreover, you agree to the following:
- You shall use the Site solely for legitimate purposes.
- You shall not disclose your password to or permit use of the Site through your password by any other person or entity. You shall take such steps as are necessary to ensure that your password remains confidential.
- You shall not use your password for any unauthorized purpose. You immediately shall notify the Company in writing of any unauthorized use of your password, screen name or the Site or any other breach of security.
- You fully assume and agree to bear and be responsible for all risks arising out of your use of the Site.
GENERAL POLICIES OF OPERATION:
In order to maintain an informative and valuable website that meets the needs of the users of the Site and avoids the harm that can result from the dissemination of statements that are false, malicious, violate of the rights of others, or otherwise is harmful, it is necessary to establish the following rules to protect against abuse. Violation of these rules may form the basis for terminating or limiting your access to part or all of the Site.
While using the Site you may not:
- post or transmit any unlawful, threatening, abusive, harassing, libelous, defamatory, harmful, vulgar, obscene, pornographic, profane or otherwise objectionable information of any kind, including without limitation any transmission constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law. It is not the Company’s intent to discourage you from taking controversial positions or expressing vigorously what may be unpopular views or opinions; the Company does, however, reserve the right to take such action as it deems appropriate in instances where the Site is used to disseminate statements which are offensive and/or harmful in nature. The Company does recognize that you may be posting nude photographs of yourself in furtherance of seeking to communicate with one or more Participating Health Care Providers, but such photographs must not be a sexual nature;
- post or transmit any message which solicits another person’s personal health information, including demographic data, that relates to the other person’s past, present or future physical or mental health or condition, the provision of health care to the other person, or to the past, present or future payment for the provision of health care to the other person;
- post or transmit any message which invades another person’s privacy or which discloses private or personal matters concerning any person other than yourself;
- post or transmit any material, non-public information about the Company or other companies without the authorization to do so;
- post or transmit any information, file or software that contains a virus, worm, Trojan Horse or any other contaminating, damaging or destructive features;
- post or transmit any message, data, image or program that would violate the contractual or property rights of others, including unauthorized copyrighted text, images or programs, trade secrets or other confidential proprietary information, and trademarks used in an infringing or unauthorized fashion;
- post or transmit any message, data, image or program that would damage or dilute the goodwill associated with the Company’s reputation or the Company’s trademarks;
- interfere, in any way, with other users of the Site;
- post or transmit junk mail, spam, charity requests, petitions for signatures, chain letters, letters relating to pyramid schemes, or unsolicited mass distribution of e-mail or other solicitations;
- post, list or transmit any message or information which is off topic according to the description of the area affected;
- take any action which imposes an unreasonable or disproportionately large load on the Site’s infrastructure;
- use any robot, spider, other automatic device or manual process to monitor or copy our Site’s pages or content without the Company’s prior written permission;
- attempt to gain unauthorized access to other websites, computer systems or data through the Site;
- provide false information about yourself;
- impersonate or misrepresent your affiliation with any other person or entity; or
- act in violation of any applicable laws.
You acknowledge and agree that you are solely responsible for the form, content and accuracy of any material and content (including e-mail) placed or posted by you on the Site.
LINKS AND LINKING:
The Site contains links to other websites (“Linked Sites”). For example, Participating Health Care Providers might have their own individual websites or other web properties they would like to promote by participating on the Site. The Site provides links to websites of the Participating Health Care Providers for information purposes only and the Company does not recommend or endorse any particular Participating Health Care Provider.
There also are websites that link to the Company’s Site (“Third Party Sites”). Such websites must comply with the following requirements.
A Third Party Site:
- may link to but not replicate content on the Site;
- must not create a browser or border environment around content on the Site;
- must comply with all applicable laws;
- must not present false information about the Company, the Site or the Services;
- must not use the Company’s trademarks without permission; and
- must not contain content that could be construed as distasteful, offensive or controversial, and should contain only content that is appropriate for viewing by all age groups.
In addition, the following requirements apply to links to the Site:
- All links must be text-only links;
- The link’s appearance, position or other characteristics must not damage or dilute the goodwill associated with the Company’s reputation or the Company’s trademarks;
- The link’s appearance, position or other characteristics must not imply that the Company sponsors, endorses or is associated with any other entity, product or service;
- The link must display the Site on the full-screen and not within a frame.
We reserve the right to revoke our consent to any link to the Site at any time in which case the third-party responsible for such link shall remove the link to our Site from the applicable Third Party Site.
If you access any Third Party Site or Linked Site (each a “Connected Site”), you do so entirely at your own risk. Any links from or to Connected Sites are provided solely as a convenience to you and not as an endorsement by the Company of the content, products, or services on such websites. Connected Sites are not under the control or authority of the Company. We are not responsible for the availability of Connected Sites. The Company is not responsible for the content of Connected Sites and does not investigate, review, approve or monitor such websites. The Company does not make any representations or accept any responsibility regarding the products, services, content, legality, advertising or accuracy of information provided on Connected Sites or provided on our Site by the owners, users or operators of such websites or by any person or entity providing a link to or from such a websites. The Company shall not be liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use, or attempted use, of any of the links, content, goods, or services available on or through a Connected Site. Statements made on Connected Sites reflect only the views of their authors and not those of the Company. The Company does not monitor the privacy practices of Connected Sites. The Company assumes no responsibility for the privacy and data collection policies, procedures, and activities of such Connected Sites.
- The Social Platforms, to the extent such platforms have been created, may provide users with areas to discuss information, views, and opinions. Your conduct when using any Social Platforms should reflect an appropriate respect and consideration for other users of the Social Platforms. The information you provide in your postings must be true and accurate to the best of your knowledge. You must demonstrate appropriate courtesy for other users who have made postings. If you disagree with another user’s opinion, feel free to challenge that opinion with a posting of your own. However, you should refrain from ever personally attacking the person making the posting. It is the policy of the Company, upon the creation of any platform that permits public discussion, to allow our users to discuss issues in a free and open manner, and we will not take sides in disagreements or disputes involving our users, so do not ask us to do so.
- We do not control the information provided by users which may be made available through any Social Platforms and the Site. No user is an owner, operator, director, officer, employee, or agent of the Company. When the Company participates in a Social Platform, it does not do so as a “user” and it will be identified as “Zwivel”, “Webmaster” or “Customer Support”.
- The Social Platforms also may be designed to help you acquire the information you need to help you make your own decisions. Those decisions, however, must be made by you. You are responsible for properly analyzing and verifying any information in any of the Social Platforms as well as any other information posted on the Site or obtained through www.zwivel.com you intend to rely upon. Other users’ information may be offensive, harmful, misleading, deceptive, in error, or inaccurate, and in some cases will be mislabeled or deceptively labeled. The Company assumes no responsibility for the accuracy, completeness, objectivity, or usefulness of the information presented by users on the Social Platforms. We do not endorse any recommendation or opinion made by any user.
- You should be aware that other users may use the Social Platforms for personal gain. Therefore, you should approach messages with appropriate skepticism.
- By using the Social Platforms, you agree that the Company is not responsible for any information that you disclose or communicate through such platforms, and any disclosures you make are at your own risk.
- You agree that you are fully responsible for any repercussions resulting from any post that occurs on your account while your screen name or password is being used. If you suspect you are being impersonated, contact the Company immediately at [email protected]
- You acknowledge and agree that the Company does not take any responsibility for any aspect of any transaction you enter into with any other party.
- Some users and Participating Health Care Providers may choose to make disclosures or representations in their profiles or in their messages and other communications about matters such as their qualifications, licenses, certifications, registrations, education, profession, experience or potential conflicts of interest (“User Representations”). Some other users may not be who they say they are, and some User Representations may be false, misleading, incomplete or inaccurate. The Company does not investigate, review, approve or monitor User Representations, does not perform background checks on any users, and only performs a limited initial screening of Participating Health Care Providers. THE COMPANY DOES NOT ENDORSE USER REPRESENTATIONS AND DOES NOT ENDORSE ANY STATEMENTS, OPINIONS, RECOMMENDATIONS, PRODUCTS OR SERVICES WHICH MAY BE PROVIDED BY USERS MAKING SUCH REPRESENTATIONS. THE COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR ACCEPT ANY RESPONSIBILITY REGARDING SUCH USER REPRESENTATIONS OR REGARDING ANY PRODUCTS, SERVICES OR OTHER INFORMATION WHICH MAY BE PROVIDED BY USERS MAKING SUCH REPRESENTATIONS. IF YOU RELY ON ANY USER REPRESENTATION, YOU DO SO ENTIRELY AT YOUR OWN RISK. THE COMPANY DOES NOT ENDORSE OR RECOMMEND ANY PARTICULAR HEALTH CARE PROVIDER LISTED IN THE ZWIVEL DATABASE. OUR DATABASE DOES NOT LIST EVERY POTENTIAL HEALTH CARE PROVIDER IN A PARTICULAR ZIP CODE; RATHER, OUR DATABASE CONSISTS OF PARTICIPATING HEALTH CARE PROVIDERS WHO HAVE ELECTED TO CREATE ACCOUNTS WITH THE COMPANY. YOU ARE ENCOURAGED TO CONDUCT YOUR OWN INDEPENDENT RESEARCH OF HEALTH CARE PROVIDERS IN YOUR AREA PRIOR TO SELECTING A HEALTH CARE PROVIDER. PARTICIPATING HEALTH CARE PROVIDERS WHO ARE LISTED IN OUR DATABASE PARTICIPATE FREE OF CHARGE. PARTICIPATING HEALTH CARE PROVIDERS HAVE THE OPTION TO PAY FOR ADDITIONAL SOFTWARE SERVICES THROUGH OUR WEBSITE (E.G., ____________), BUT SUCH SERVICES ARE NOT REQUIRED TO PARTICIPATE IN OUR DATABASE. YOU MUST CONDUCT YOUR OWN DETERMINATION WHETHER TO RELY ON ANY SERVICES OR PRODUCTS PROVIDED BY ANY PARTICIPATING HEALTH CARE PROVIDER AS YOU SHOULD IN CHOOSING ANY OTHER HEALTH CARE PROVIDER. SUCH SELECTION SHOULD BE BASED ON YOUR OWN INDEPENDENT CONFIRMATION THAT THE PARTICIPATING HEALTH CARE PROVIDER IS PROPERLY LICENSED IN YOUR STATE, PARTICIPATES IN YOUR HEALTH INSURANCE PLAN, HAS SUFFICIENT EXPERIENCE, HAS A GOOD REPUTATION, DOES NOT HAVE ANY RESTRICTIONS IN PROVIDING THE DESIRED HEALTH CARE SERVICES TO YOU, DOES NOT HAVE AN ADVERSE MALPRACTICE HISTORY OR AN ADVERSE HISTORY IN COMPLYING WITH ALL APPLICABLE LAWS, AND ANY OTHER FACTOR THAT YOU DEEM IMPORTANT IN SELECTING A HEALTH CARE PROVIDER. THE COMPANY DOES NOT ENDORSE ANY PARTICIPATING HEALTH CARE PROVIDER. THE COMPANY MAY PERFORM A VERY LIMITED INITIAL CONFIRMATION OF THE LICENSURE STATUS OF PARTICIPATING HEALTH CARE PROVIDERS TO THE EXTENT STATE LICENSURE IS DISCLOSED BY PARTICIPATING HEALTH CARE PROVIDERS IN THEIR BIOGRAPHIC INFORMATION INCLUDED ON THE SITE, BUT THE COMPANY DOES NOT INDEPENDENTLY VERIFY LICENSURE OR MONITOR CONTINUED LICENSURE. MOREOVER, THE COMPANY DOES NOT CHECK INTO THE PERFORMANCE OF ANY PARTICIPATING HEALTH CARE PROVIDER. WWW.ZWIVEL.COM IS PURELY A MEANS OF FACILITATING COMMUNICATION BETWEEN INDIVIDUALS AND PARTICIPATING HEALTH CARE PROVIDERS AND RELATED USERS.
RIGHTS RELATING TO CONTENT ON THE SITE:
All content included on the Site, including content within the Site and controlling the Site, such as text, graphics, button icons, images, and software (including but not limited to HTML code) (“Material”), is the exclusive property of the Company or others and protected by law. All rights under law, including U.S. and international copyright laws and treaties, are reserved except as expressly set forth herein. The Company authorizes you to view, print and download the Material on the Site only for your use as a Participating Health Care Provider provided that you retain all copyright and other proprietary notices contained in the original Material on any copies of the Material. Material may not be modified in any way or reproduced or publicly displayed, performed, or distributed or otherwise used for any public or commercial purpose. For purposes of these Terms and Conditions, any use of the Material on any other website or networked computer environment for any purpose is prohibited. Permission to reprint or electronically reproduce any document or graphic in whole or in part for any reason is expressly prohibited unless prior written consent is obtained from the respective copyright holder(s). Unauthorized reproduction or distribution of these materials or any portion of them may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law.
The trademarks, service marks, slogans and logos (“Trademarks”) used and displayed on the Site, including content within the Site, are registered and unregistered Trademarks of the Company and others. Nothing on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Site without the written permission of the Trademark owner. Trademarks may not be modified in any way or reproduced (electronically or by any other means), reprinted, publicly displayed, distributed or otherwise used for any public or commercial purpose.
You agree that upon posting information on any Social Platform, you grant the Company and its successors a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license to use, distribute, display, reproduce, and create derivative works from such material in any and all media, in any manner, whole or part, without any duty to account to you. You also grant the Company the right to authorize the downloading and printing of such material, or any portion thereof, by end users for their own use.
ADDITIONAL NOTICES AND DISCLAIMERS
- ANY GOODS OR SERVICES PROVIDED THROUGH THE SITE AND THE INFORMATION CONTAINED ON THE SITE ARE PROVIDED ON AN “AS IS” BASIS WITH ALL FAULTS. THE COMPANY MAKES NO, AND HEREBY DISCLAIMS, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF TITLE, WARRANTY OF NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND THE WARRANTY OF FITNESS FOR A PARTICULAR USE OR PURPOSE AS TO THE OPERATION OF THE SITE OR THE NATURE, RELIABILITY, ACCURACY, TIMELINESS, USEFULNESS, ADEQUACY, COMPLETENESS, OR SUITABILITY OF THE SERVICES OR INFORMATION CONTAINED ON THE SITE OR AS TO ANY OTHER MATTER.
- THE COMPANY WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SITE OR ARISING FROM ANY ALLEGED TORTIOUS ACT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OF THE COMPANY, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES DUE TO ECONOMIC LOSS, INJURY, ILLNESS OR DEATH.
- THE COMPANY MAKES NO, AND HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF TITLE, WARRANTY OF NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND THE WARRANTY OF FITNESS FOR A PARTICULAR USE OR PURPOSE, AS TO CONNECTED SITES OR THE NATURE, RELIABILITY, ACCURACY, TIMELINESS, USEFULNESS, ADEQUACY, COMPLETENESS, OR SUITABILITY OF ANY GOODS, SERVICES OR INFORMATION ON CONNECTED SITES OR AS TO ANY OTHER MATTER. THE COMPANY AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM CONNECTED SITES OR ARISING FROM ANY ALLEGED TORTIOUS ACT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OF ANY CONNECTED SITE OR ANY OWNER OR OPERATOR OF A CONNECTED SITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES DUE TO ECONOMIC LOSS, INJURY, ILLNESS OR DEATH.
- The content of the Site, such as text, graphics, images, and other material contained on the Site, is general in nature and is provided for informational purposes only and as a means to facilitate communication between individuals and Participating Health Care Providers. It is not intended to provide medical or health care advice (including issues relating to drugs, medications and other preparations), diagnosis or treatment, and it is not provided in the course of a professional relationship between a health care provider and a patient. The Company does not practice medicine or provide any health care service of any nature or description. You may not rely on the Company or the content of the Site for medical advice, diagnosis or treatment, pharmaceutical advice or any professional service or advice requiring licensure, registration or certification in any state. You should not substitute information contained on this Site for a consultation with your physician, your pharmacist or other qualified health care professional. THE OPINIONS AND RECOMMENDATIONS GIVEN BY EACH PARTICIPATING HEALTH CARE PROVIDER ARE ONLY PRELIMINARY AND SHOULD NOT BE RELIED UPON NOR CONSIDERED TO BE FINAL UNTIL CONFIRMED BY AN INITIAL, IN-PERSON CONSULTATION WITH THAT PROVIDER OR SUCH OTHER HEALTH CARE PROFESSIONAL AS YOU DEEM APPROPRIATE. The Company recommends consulting with a qualified health care professional promptly and on a regular basis with respect to any matter or question relating to physical or mental health especially concerning symptoms that may require diagnosis or medical attention. Any diagnosis or treatment decisions made by you must be made in consultation with your health care professional. YOU SHOULD NEVER DISREGARD MEDICAL OR HEALTH CARE ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THE SITE. If you believe that you are experiencing a medical emergency, dial 911. The content of the Site is not independently verified nor endorsed by the Company, and we cannot offer any assurances that any product or course of treatment is safe, effective or appropriate for you. The Company does not make any representations or warranties concerning any treatment, action or application of medication, drugs or preparation by any person following the information provided on or through the Site, including, any service or product provided by a Participating Health Care Provider. THE COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR OTHER DAMAGES THAT MAY RESULT FROM FOLLOWING THE INFORMATION PROVIDED ON OR THROUGH THE SITE, INCLUDING, WITHOUT LIMITATION, DAMAGES DUE TO ECONOMIC LOSS, INJURY, ILLNESS OR DEATH.
- The Company disclaims any warranty that the Site will be available at all times or will operate without interruption or error.
- The Company cannot and does not guarantee that data available for downloading from the Site will be free of infection by viruses, worms, Trojan Horses, or other code that manifest contaminating, damaging or destructive properties.
- The Site is controlled and operated by the Company from its offices within the United States. Although the information on the Site is accessible outside of the United States, not all content or Services on the Site are available or appropriate for all persons or in all geographic locations or jurisdictions. The Company makes no representation that the contents or Services of the Site are appropriate or available for use in other locations outside the United States. The Company reserves the right to limit the provision of content or Services to any person, geographic area, or jurisdiction if it so desires and to limit the quantities of content or Services that it provides. Access to the Site is prohibited in countries, territories and locations outside the United States where the content or Services of the Site are illegal or unauthorized. Any Service provided on the Site is void where prohibited.
- The material available through the Site may contain inaccuracies or typographical errors. The Company makes no representations about the accuracy, reliability, completeness, or timeliness of the material available through the Site. The use of the Site and the material available through the Site is at your own risk. Changes are periodically made to the Site and may be made at any time without notice.
- Cosmetic doctors listed in the Zwivel database are categorized according to information provided to Zwivel by the doctors, themselves, as well as from information gathered through Internet searches when no other information was provided. Although Zwivel attempts to verify that the cosmetic doctors listed in our database are categorized correctly, Zwivel makes no assurances that this is always the case. Furthermore, credentials and certifications listed for Zwivel member doctors are based upon information provided by the doctors. Zwivel makes no claims or guarantees about the veracity of such certifications, nor about the expertise or proficiency that such certifications may signify in performing cosmetic procedures. It is the responsibility of you, the potential cosmetic patient, to verify the credentials, qualifications, and expertise of each cosmetic doctor to whom a Request is sent and with whom a cosmetic procedure is contemplated.
BY USING THE SITE, YOU RELEASE AND FOREVER DISCHARGE THE COMPANY AND ITS OWNERS, OPERATORS, MANAGERS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, AFFILIATES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, FROM ANY AND ALL MANNER OF LIABILITY, CLAIMS, COUNTERCLAIMS, DEMANDS, SETOFFS, DAMAGES, OR CAUSES OF ACTION, WHICH YOU NOW HAVE OR WHICH MAY HEREAFTER ACCRUE, WHETHER HERETOFORE ASSERTED OR UNASSERTED, KNOWN OR UNKNOWN, ARISING OUT OF OR IN ANY WAY RELATING TO USE OF THE SITE BY YOU, SPECIFICALLY INCLUDING BUT NOT LIMITED TO ANY CLAIMS BASED IN WHOLE OR IN PART UPON (I) THE ALLEGED NEGLIGENCE OF THE COMPANY, IN OPERATING THE SITE OR OTHERWISE, (II) ANY ALLEGED OR ACTUAL NEGLIGENCE OF ANY PARTICIPATING HEALTH CARE PROVIDER, OR (III) ANY PARTICIPATING HEALTH CARE PROVIDER WHO HAS PROVIDED OR FAILED TO PROVIDE ANY PRODUCT OR SERVICES.
You agree to defend, indemnify and hold harmless the Company, and its owners, operators, managers, officers, employees, contractors, agents, affiliates, and their respective successors and assigns, from and against any and all losses, costs, liabilities, obligations, damages, deficiencies, expenses, actions, suits, proceedings, demands, assessments and/or judgments, including attorneys’ fees, that are caused by, or result or arise from, any breach of these Terms and Conditions by you or the use of the Site by you or any other person using the Site under your password regardless of whether you gave such person permission to do so.
GOVERNING LAW, JURISDICTION AND ARBITRATION:
Any claim relating to and use of the Site and the Materials contained on the Site are governed by and construed in accordance with the laws of the State of New Jersey (regardless of the laws that might be applicable under principles of conflicts of law). You irrevocably consent to the exclusive jurisdiction and venue of the federal and state courts in the State of New Jersey in all disputes arising out of or relating to these Terms and Conditions or your use of the Site. You hereby irrevocably waive any objection which you may now or hereafter have to the laying of venue of any actions or proceedings arising out of or in connection with these Terms and Conditions brought in the courts referred to in the preceding sentence and hereby further irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum. In the event any dispute arises between you and the Company concerning the use of the Site, it shall be resolved in accordance with the alternative dispute resolution procedure set forth in the following paragraph.
Notwithstanding the foregoing, any controversy or claim arising out of or relating to your use of the Site, the relationship resulting in or from your use of the Site, the breach of any duties hereunder or any other relationship, transaction or dealing between you and the Company (collectively “Disputes”) will be settled by binding arbitration in accordance with the Commercial Arbitration Rules of The American Arbitration Association. Such arbitration shall be conducted in Bergen County, New Jersey. You agree that the arbitration shall be conducted by a panel of three arbitrators, one designated by you, one designated by the Company, and the third neutral arbitrator chosen jointly by our respective arbitrators. Any award rendered by the arbitrator(s) may be entered as a judgment or order and confirmed or enforced by either you or the Company in any state or federal court having competent jurisdiction thereof. If either you or the Company brings or appeals any judicial action to vacate or modify any award rendered pursuant to arbitration or opposes the confirmation of such award and the party bringing or appealing such action or opposing confirmation of such award does not prevail, such party will pay all of the costs and expenses (including, without limitation, court costs, arbitrators’ fees and expenses and attorneys’ fees) incurred by the other party in defending such action. Additionally, if either party brings any action for judicial relief in the first instance without pursuing arbitration prior thereto, the party bringing such action for judicial relief will be liable for and will immediately pay to the other party all of the other party’s costs and expenses (including, without limitation, court costs and attorneys’ fees) to stay or dismiss such judicial action and/or remove it to arbitration. The failure of either party to exercise any rights granted hereunder shall not operate as a waiver of any of those rights. Your use of the Site may involve interstate commerce among the several states. The arbitrators will not be empowered to award punitive damages. IF THESE TERMS AND CONDITIONS ARE FOUND NOT TO BE SUBJECT TO ARBITRATION, THE PARTIES KNOWINGLY AND WILLINGLY WAIVE ANY RIGHT THEY HAVE UNDER APPLICABLE LAW TO A TRIAL BY JURY IN ANY DISPUTE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS AND CONDITIONS OR THE ISSUES RAISED BY SUCH DISPUTE.
GENERAL CONTRACTUAL PROVISIONS:
If any provision of these Terms and Conditions shall be declared by a court to be invalid, illegal, or unenforceable, such provision shall be deemed severable from these Terms and Conditions and the other provisions shall remain in full force and effect. The failure of the Company to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision.