Terms of Service
Terms of Service
Effective Date: September 1, 2013
PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SITE AND SERVICES.
If You Want to Use This Service,
Please carefully review the Terms set forth herein, as they constitute a binding agreement between you and Shadow Health and therefore affects your legal rights and obligations.
Each time you access and/or use the Service (other than to simply read these Terms), you agree to be bound by and comply with these Terms and any Additional Terms (defined below). Therefore, you should not use the Service if you do not agree with the Terms or Additional Terms (as defined below).
The business realities associated with operating the Service are such that, without the limitations that are set forth in these Terms and Additional Terms-- such as your grants and waivers of certain rights, the limitations on our liability, your agreement to indemnify us under certain circumstances, and your agreement to arbitrate certain disputes – Shadow Health would not be able to make the Service available to you.
In certain instances, both these Terms and separate guidelines, rules, or terms of service, use or sale setting forth additional or different terms and/or conditions will apply to your use of the Service or services or products offered through the Service (in each such instance, and collectively, “Additional Terms”).
Table of Contents
- Service Content, Ownership, Limited License, and Rights of Others
- Content You Submit
- Service and Content Use Restrictions
- Opening and Terminating Accounts
- Procedure for Alleging Copyright Infringement
- Procedure for Alleging Infringement of Other Intellectual Property
- Questions and Customer Service
- Product Specifications; Pricing; Typographical Errors
- Linked-To Websites; Advertisements; Dealings with Third Parties
- Wireless Features
- Dispute Resolution
- Disclaimer of Representations and Warranties
- Limitations of our Liability
- Waiver of Injunctive or Other Equitable Relief
- General Provisions
1. Service Content, Ownership, Limited License, and Rights of Others
The Service contains a variety of: (i) materials and other items relating to Shadow Health and its products and services, and similar items from our licensors and other third parties, including all layout, information, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material (including source and object code); (ii) trademarks, logos, trade names, service marks, and trade identities of various parties, including those of Shadow Health (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”).
The Service (including past, present, and future versions) and the Content are owned or controlled by Shadow Health and our licensors and certain other third parties. All right, title, and interest in and to the Content available via the Service is the property of Shadow Health or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, patent, or other intellectual property rights and laws to the fullest extent possible. Shadow Health owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Service.
C. Limited License.
Subject to your strict compliance with these Terms and the Additional Terms, Shadow Health grants you a limited, non-exclusive, revocable, non-assignable, personal, and nontransferable license to download (temporary storage only), display, view, use, and/or print one copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your personal, non-commercial use only. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in Shadow Health’s sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.
D. Rights of Others.
In using the Service, you must respect the intellectual property and other rights of Shadow Health and other parties. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. Shadow Health respects the intellectual property rights of others. If you believe that your work has been infringed by means of an improper posting or distribution of it via the Service, please see Section 6 and Section 7 below.
2. Content You Submit
Shadow Health may now or in the future offer users of the Service the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Service (collectively, “submit”) messages, avatars, text, illustrations, files, images, graphics, photos, comments, responses, sounds, music, videos, information content, ratings, reviews, data, questions, suggestions personally identifiable information, or other information or materials and the ideas contained therein (collectively, but excluding Shadow Health Content included therein, “User-Generated Content”).
Shadow Health may do this through forums, blogs, message boards, social networking environments, content, creation tools, gameplay, social communities, e-mail, and other communications functionality. Subject to the rights and license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content.
B. Non-Confidentiality of Your User-Generated Content.
In your communications with Shadow Health, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including without limitation ideas, concepts, inventions, or designs for music, web sites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, “Unsolicited Ideas and Materials”). Any Unsolicited Ideas and Materials you post on or send to us via the Service are deemed User-Generated Content and licensed to us as set forth below. In addition, Shadow Health retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. Shadow Health’s receipt of your Unsolicited Ideas and Materials is not an admission by Shadow Health of their novelty, priority, or originality, and it does not impair Shadow Health’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
C. License to Shadow Health of Your User-Generated Content.
Except as otherwise described in any applicable Additional Terms (such as a contest official rules), which specifically govern the submission of your User-Generated Content), you hereby grant to Shadow Health, and you agree to grant to Shadow Health, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User-Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, producing, and marketing products and/or services.
In order to further effect the rights and license that you grant to Shadow Health to your User-Generated Content, you also hereby grant to Shadow Health, and agree to grant to Shadow Health, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 2(A)(iii).
D. Shadow Health’s Exclusive Right to Manage its Venue.
Shadow Health may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User-Generated Content, and Shadow Health may, in its sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of User-Generated Content without notice or any liability to you or any third party in connection with our operation of User-Generated Content venues in an appropriate manner. Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms. Such User-Generated Content submitted by you or others need not be maintained on the Service by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User-Generated Content on the Service or elsewhere.
E. Representations and Warranties Related to Your User-Generated Content.
Each time you submit any User-Generated Content, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User-Generated Content you submit, and that, as to that User-Generated Content, (a) you are the sole author and owner of the intellectual property and other rights to the User-Generated Content, or you have a lawful right to submit the User-Generated Content and grant Shadow Health the rights to it that you are granting by these Terms and any Additional Terms, all without any Shadow Health obligation to obtain consent of any third party and without creating any obligation or liability of Shadow Health; (b) the UserGenerated Content is accurate; (c) the User-Generated Content does not and, as to Shadow Health’s permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or other right of any third party; and (d) the User-Generated Content will not violate these Terms or any Additional Terms, or cause injury or harm to any person.
Shadow Health has no obligation to monitor or enforce your intellectual property rights to your User-Generated Content, but you grant us the right to protect and enforce our rights to your User-Generated Content, including by bringing and controlling actions in your name and on your behalf (at Shadow Health’s cost and expense, to which you hereby consent and irrevocably appoint Shadow Health as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
G. Alerting Us of Violations.
If you discover any content that violates these Terms, you are encouraged to report such violations to Shadow Health through the following link: dmca@ShadowHealth.com. For alleged infringements of intellectual property rights, see Sections 6 and Sections 7 , below.
3. Service and Content Use Restrictions
A. Service Use Restrictions.
By using the Service, you explicitly agree not to: (i) aside from your purchase of services offered for sale by Shadow Health or its affiliates, use the Service for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) engage in any activities through or in connection with the Service that seek or attempt to harm any individuals or entities or are otherwise unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate the rights of any third party, or are otherwise objectionable to Shadow Health; (iii) reverse engineer, decompile, disassemble, reverse assemble, or modify any Service source or object code or any software or other products, services, or processes accessible through any portion of the Service; (iv) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, Shadow Health, or other users of the Service; (v) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service, the Content, or the User-Generated Content; or (vi) otherwise violate these Terms or any Additional Terms.
B. Content Use Restrictions.
You also agree that, in using the Service, you will: (i) not monitor, gather, copy, or distribute the Content (except as may result from standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) not make any modifications to such Content (other than to the extent otherwise permitted in these Terms or any Additional Terms); (vi) not modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of Shadow Health or, in the case of Content from a licensor, the owner of the Content; and (vii) not insert any code or product to manipulate such Content in any way that adversely affects any user experience.
C. Availability of Service and Content.
Shadow Health may immediately suspend or terminate the availability of the Service and/or Content (and any elements and features thereof) for any reason, in Shadow Health’s sole and absolute discretion, and without advance notice or liability to any party.
D. Reservation of All Rights Not Granted as to Content and Service. These Terms and any
Additional Terms include only narrow, limited grants of rights to Content and to use and access the Service. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Shadow Health and its licensors and other third parties. Any unauthorized use of any Content or the Service for any purpose is prohibited.
4. Opening and Terminating Accounts
5. Usage Subscriptions
Purchases of usage subscriptions (including credits, points, and/or virtual currency) that may be made available on or through the Service or our third party paying agent are nonrefundable, have no monetary value (i.e., are not a cash account or equivalent), and are purchases of only a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable right to use, even if such came with a durational term. Accordingly, you have no property, proprietary, intellectual property, ownership, or monetary interest in your usage subscriptions. The right may be immediately suspended or terminated for any reason, in our sole discretion, and without advance notice or liability to any person. We may modify usage subscriptions at our sole discretion, and such modifications may make the usage subscriptions more or less common, valuable, effective, or functional. We do not recognize the transfer of usage subscriptions (including for “real” money or any other consideration or items of value whether inside our outside of the Service). Accordingly, you may not purchase, sell, barter, or trade any usage subscriptions or offer to purchase, sell, or trade any usage subscriptions. Any such attempted transfer will be null and void and may result in our termination of your usage subscription. If we suspend or terminate any usage subscriptions, then you will forfeit the suspended or terminated subscription, except as may be set forth in any Additional Terms (such as any refund policies that may apply to a subscription service). Likewise, except as may be set forth in any Additional Terms or as required by applicable law, we are not responsible for repairing or replacing same, or providing you any credit or refund or any other sum, in the event of our modification of any usage subscriptions, or for loss or damage due to error, or any other reason.
6. Procedure for Alleging Copyright Infringement
A. DMCA Notice.
Shadow Health will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice that includes all of the following:
(i) a legend or subject line that says: “DMCA Copyright Infringement Notice”;
(ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
(iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Service on which the material appears);
(iv) your full name, address, telephone number, and e-mail address;
(v) a statement by you that you have 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;
(vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and
(vii) your electronic or physical signature. Shadow Health will only respond to DMCA Notices that it receives by mail, e-mail, or facsimile at the addresses below:
Shadow Health, Inc. Attn: DMCA 201 SE 2nd Ave, Ste 201 Gainesville, FL 32601 USA
By E-Mail: dmca@ShadowHealth.com
By Phone: 352-224-5012
It is often difficult to determine if your copyright has been infringed. Shadow Health may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and Shadow Health may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification.
Without limiting Shadow Health’s other rights, Shadow Health may, in appropriate circumstances, terminate a repeat infringer’s access to the Service and any other website owned or operated by Shadow Health. See Section 4, above.
If access on the Service to a work that you submitted to Shadow Health is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:
(i) a legend or subject line that says: “DMCA Counter-Notification”;
(ii) a description 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 (please include the URL of the Service from which the material was removed or access to it disabled);
(iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
(iv) your full name, address, telephone number, e-mail address, and the username of your account;
(v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Southern District of Florida), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
(vi) your electronic or physical signature.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed of disabled by mistake or misidentification may be subject to liability. If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Service. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
7. Procedure for Alleging Infringement of Other Intellectual Property
If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice to the addresses set forth above that includes all of the following:
(a) a legend or subject line that says: “Intellectual Property Infringement Notice”;
(b) a description of the intellectual property that you claim has been infringed;
(c) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Service on which the material appears);
(d) your full name, address, telephone number, and e-mail address;
(e) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the intellectual property, its agent, or the law;
(f) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and
(g) your electronic or physical signature. We will act on such notices in our sole discretion. Any user of the Service that fails to respond satisfactorily to Shadow Health with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.
8. Questions and Customer Service
If you have a question regarding the Service or the rules and policies applicable to the use thereof, you may contact Shadow Health Customer Support by sending an e-mail to Support@ShadowHealth.com or calling our tollfree number at 1-800-860-3241.
9. Product Specifications; Pricing; Typographical Errors
We do our best to describe every service offered on the Service as accurately as possible. However, we do not warrant that the product specifications, pricing, or other content on the Service is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications, Shadow Health shall have the right to refuse or cancel any orders in its sole discretion. If we, through our payment processor, charged your credit card or other account prior to cancellation, we will instruct our payment processor to issue a credit to your account in the amount of such charge. Additional terms may apply.
10. Linked-To Websites; Advertisements; Dealings with Third Parties
A. Linked Sites; Advertisements.
The Service may contain links, as part of third-party ads on the Service or otherwise, to or from third-party websites (“Linked Sites”), including websites operated by advertisers, licensors, licensees, and certain other third parties who may have business relationships with Shadow Health. Shadow Health may have no control over the content, operations, policies, terms, or other elements of Linked Sites, and Shadow Health does not assume any obligation to review any such Linked Sites. Shadow Health does not endorse, approve, or sponsor any Linked Sites, or any third-party content, advertising, information, materials, products, services, or other items. Furthermore, Shadow Health is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such sites. Finally, Shadow Health will, under no circumstances, be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party Linked Sites. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Sites. Shadow Health disclaims all liability in connection therewith.
B. Dealings with Third Parties.
Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Service (including on or via Linked Sites or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Shadow Health disclaims all liability in connection therewith.
11. Wireless Features
A. Wireless Features. The Service may offer certain features and services that are available to you
via your wireless Device. These features and services may include the ability to access the Service’s features and upload content to the Service, receive messages from the Service, and download applications to your wireless Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. You should check with your carrier to determine what plans, if any, are available and how much they cost. Contact your carrier with questions regarding these issues.
B. Terms of Wireless Features. You agree that as to the Wireless Features for which you are
registered for, we may send communications to your wireless Device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Service for Wireless Features, then you agree to notify Shadow Health of any changes to your wireless contact information (including phone number) and update your accounts on the Service to reflect the changes.
12. Dispute Resolution
Certain portions of this Section 12 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Shadow Health agree that we intend that this Section 12 satisfies the “writing” requirement of the Federal Arbitration Act.
A. First – Try to Resolve Disputes and Excluded Disputes.
If any controversy, allegation, or claim arises out of or relates to the Service, the Content, your User-Generated Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Shadow Health’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 12(D)), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 12(A). Your notice to us must be sent to:
201 SE 2nd Ave, Ste 201, Gainesville, FL 32601.
For a period of sixty (60) days from the date of receipt of notice from the other party, Shadow Health and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Shadow Health to resolve the Dispute or Excluded Dispute on terms with respect to which you and Shadow Health, in each of our sole discretion, are not comfortable.
B. Forums for Alternative Dispute Resolution.
If we cannot resolve a Dispute as set forth in Section 12(A) within sixty (60) days of receipt of the notice, then either you or we may submit the Dispute to formal arbitration in accordance with this Section 12(B). If we cannot resolve an Excluded Dispute as set forth in Section 12(A) within sixty (60) days of receipt of the notice, then either you or we may submit the Excluded Dispute to formal arbitration only if you and Shadow Health consent, in a writing signed by you and an Officer or legal representative of Shadow Health, to have that Excluded Dispute subject to arbitration. In such a case (and only in such a case), that Excluded Dispute will be deemed a “Dispute” for the remainder of this Section 12(B). Upon expiration of the applicable sixty-day period and to the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration in accordance with the thencurrent Commercial Arbitration Rules of the American Arbitration Association (“AAA”). If the Dispute has a claimed value of not more than $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than fifteen (15) years experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA's Supplementary Procedures for Consumer Related Disputes. If the Dispute has a claimed value of more than $250,000, or if Shadow Health elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three-member panel, with one member to be selected by each party and the third (who will be chair of the panel) selected by the two party-appointed members or by the AAA in accordance with the Commercial Arbitration Rules. The arbitrator or arbitration panel, as the case may be, will apply applicable law and the provisions of these Terms and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award. If you and Shadow Health do not both consent to the arbitration of an Excluded Dispute as set forth in the immediately preceding paragraph of this Section 12(B)(i), then this paragraph and the remainder of this Section 12(B) will not apply to the Excluded Dispute. If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within sixty (60) days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Shadow Health consent to in writing. The substantive practice area requirements for the arbitrator and the $250,000 threshold for a the number of arbitrators assigned to the Dispute set forth in the paragraph above for the AAA arbitration will also apply to any such arbitration under JAMS or another arbitration service.
You can obtain AAA and JAMS procedures, rules, and fee information as follows:
AAA: 800.778.7879 http://www.adr.org/ JAMS: 949.224.1810 http://www.jamsadr.com/
(ii) Nature, Limitations, and Location of Alternative Dispute Resolution.
In arbitration, as with a court, the arbitrator must honor the terms of these Terms (and any Additional Terms) and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Shadow Health to pay a greater portion or all of such fees and costs in order for this Section 12 to be enforceable, then Shadow Health will have the right to elect to pay the fees and costs and proceed to arbitration. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered in or by any court that has jurisdiction over the parties pursuant to Section 9 of the Federal Arbitration Act.
C. Limited Time to File Claims.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 12(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
D. Injunctive Relief.
The foregoing provisions of this Section 12 will not apply to any legal action taken by Shadow Health to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Service, any Content, your User-Generated Content and/or Shadow Health’s intellectual property rights (including any rights that Shadow Health claims that may be in dispute), Shadow Health’s operations, and/or Shadow Health’s products or services.
E. Small Claims Matters Are Excluded from Arbitration Requirement.
Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court, subject to Section 12(G).
F. No Class Action Matters.
Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to Section 12(B)(i) holds that this restriction is unconscionable or unenforceable, then our agreement in Section 12(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 14(G).
G. Federal and State Courts in Florida.
Except to the extent that arbitration is required in Section 12(B), and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in Florida. Accordingly, you and Shadow Health consent to the exclusive personal jurisdiction and venue of such courts for such matters.
13. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
YOUR ACCESS TO AND USE OF THE SITE IS AT YOUR SOLE RISK. THE SITE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, Shadow Health Inc. and its subsidiaries and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, “Shadow Health Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
(a) the Service (including the Content and the User-Generated Content);
(b) the functions, features, or any other elements on, or made accessible through, the Service;
(c) any products, services, or instructions offered or referenced at or linked through the Service;
(d) security associated with the transmission of your User-Generated Content transmitted to Shadow Health or via the Service;
(e) whether the Service or the servers that make the Service available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);
(f) whether the information (including any instructions) on the Service is accurate, complete, correct, adequate, useful, timely, or reliable;
(g) whether any defects to the Service will be repaired; and
(h) whether your use of the Service is lawful in any particular jurisdiction. EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A SHADOW HEALTH PARTY, SHADOW HEALTH PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.
14. LIMITATIONS OF LIABILITY OF SHADOW HEALTH PARTIES
UNDER NO CIRCUMSTANCES WILL ANY SHADOW HEALTH PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
(a) the Service (including the Content and the User-Generated Content);
(b) your use of or inability to use the Service, or the performance of the Service;
(c) any action taken in connection with an investigation by Shadow Health Parties or law enforcement authorities regarding your access to or use of the Service;
(d) any action taken in connection with copyright or other intellectual property owners or other rights owners;
(e) any errors or omissions in the Service’s technical operation; or
(f) any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if the Shadow Health Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Service).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SHADOW HEALTH PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SITE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID SHADOW HEALTH IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY EXPRESS, WRITTEN PRODUCT WARRANTY THAT IS PROVIDED BY SHADOW HEALTH OR A MANUFACTURER OF A PHYSICAL PRODUCT.
Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at:
400 R St., Suite 1080, Sacramento, California, 95814
or by telephone at
Their website is located at: http://www.dca.ca.gov.
15. Waiver of Injunctive or Other Equitable Relief
IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SITE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, USERGENERATED CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY SHADOW HEALTH (INCLUDING YOUR LICENSED USERGENERATED CONTENT) OR A LICENSOR OF SHADOW HEALTH.
16. General Provisions
A. Updates to Terms.
Shadow Health reserves the right to modify these Terms and any Additional Terms, at any time without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on the Service so that they are accessible via a link on the Service, and that your use of the Service after we post the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms and any Additional Terms on a regular and frequent basis. The Updated Terms will be effective as of the time that Shadow Health posts them on the home page of the Service, or such later date as may be specified in them.
B. Shadow Health’s Consent or Approval.
As to any provision in these Terms or any Additional Terms that grants SHADOW HEALTH a right of consent or approval, or permits Shadow Health to exercise a right in its “sole discretion,” Shadow Health may exercise that right in its sole and absolute discretion. No Shadow Health consent or approval may be deemed to have been granted by Shadow Health without being in writing and signed by an Officer of Shadow Health.
C. Applicable Law.
These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of Florida without regard to its conflicts of law provisions.
You agree to, and you hereby, defend, indemnify, and hold each of the Shadow Health Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Shadow Health Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter:
(i) your User-Generated Content;
(ii) your use of the Service and your activities in connection with the Service;
(iii) your breach or anticipatory breach of these Terms or any Additional Terms;
(iv) your violation or anticipatory violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Service or your activities in connection with the Service;
(v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity;
(vi) any misrepresentation made by you; and
(vii) use by any of the Shadow Health Parties of the information that you submit to us (including your User-Generated Content) (all of the foregoing, “Claims and Losses”).
You will cooperate as fully required by the Shadow Health Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, the Shadow Health Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. The Shadow Health Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Shadow Health Party.
E. Operation of Service;
Availability of Products and Services; International Issues. Shadow Health controls and operates the Service from its U.S.-based offices in the U.S.A., and Shadow Health makes no representation that the Service is appropriate or available for use beyond the U.S.A. If you use the Service from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Service may describe products and services that are available only in the U.S.A. (or only parts of it) and are not available worldwide. We reserve the right to limit the availability of the Service and/or the provision of any content, program, product, service, or other feature described or available on the Service to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods.
F. Export Controls.
Software related to or made available by the Service may be subject to export controls of the U.S.A. No software from the Service may be downloaded, exported, or re-exported
(i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed goods, software, technology or services (which, as of the effective date of these Terms, includes Cuba, North Korea, Iran, Sudan, and Syria), or
(ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or
(iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). You are responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls, including as set forth in subsections (i) – (iii) above.
G. Severability; Interpretation.
If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms or any Additional Terms, the word will be deemed to mean “including, without limitation.”
When you communicate with us electronically, such as via e-mail and text message, you consent to receive communications from us electronically. Please note that we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
I. Investigations; Cooperation with Law Enforcement; Termination; Survival.
Shadow Health reserves the right, without any limitation, to:
(i) investigate any suspected breaches of its Service security or its information technology or other systems or networks,
(ii) investigate any suspected breaches of these Terms and any Additional Terms,
(iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any Additional Terms, and
(vi) discontinue the Service, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Shadow Health under these Terms or any Additional Terms. Upon suspension or termination of your access to the Service, or upon notice from Shadow Health, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service. The provisions of these Terms and any Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Shadow Health in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
Shadow Health may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Shadow Health. K. No Waiver. Except as expressly set forth in these Terms or any Additional Terms,
(i) no failure or delay by you or Shadow Health in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and
(ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
L. U.S. Government Restricted Rights.
If you are a government end user, then this provision applies to you. The Service provided in connection with these Terms has been developed entirely at private expense, as defined in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227- 7015 (or any equivalent or subsequent agency regulation thereof), and is provided as “commercial items,” “commercial computer site” and/or “commercial computer site documentation.” Consistent with DFARS section 227.7202 and FAR section 12.212 and to the extent required under U.S. federal law, the minimum restricted rights as set forth in FAR section 52.227-19 (or any equivalent or subsequent agency regulation thereof), any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these Terms and shall be prohibited except to the extent expressly permitted by these Terms.
You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service providers, mobile service, and other services needed for your access to and use of the Service and you will be responsible for all charges related to them.
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