1. Access to Site.
During the Term, subject to the terms of this Agreement, We will provide You with access to the Site and other Services as described in this Agreement and in the Privacy Statement, referenced herein and made a part hereof
2. Enterprise Agreements.
If You are entering the Site on behalf of an Enterprise, You are governed by a Master Services Agreement and any Business Associate Agreement between Enterprise and Company. If You are a Covered Entity under Health Insurance Portability and Accountability Act (HIPAA) and have not entered into a Business Associate Agreement directly with the Company or indirectly through the Company, You need to execute one with the Company before using this Site.
As an Enterprise User you represent that all communications you make via the Site & Service are with the prior permission of the recipient and are compliant with all applicable HIPAA and TCPA guidelines, rules, regulations and laws.
All Services under the Site are provided under the privacy statement available via a prominent privacy link on every page of the Site (“Privacy Statement”). The Privacy Statement can be accessed HERE
1. Access to Site.
During the Term, subject to the terms of this Agreement, We will provide You with access to the Site and other Services as described in this Agreement and in the Privacy Statement, referenced herein and made a part hereof
3.1 You expressly consent to the use and disclosure of information about You, as necessary, as described in the Privacy Statement.
3.2 You also agree to be bound by the terms of the Privacy Statement and to treat any and all data, personally identifiable information, personal health information or other information about consumers or patients received by You in connection with your use of the Site in accordance with the minimum levels of privacy set forth in the Privacy Statement; all privacy and security laws applicable to You, including without limitation the Health Insurance Portability and Accountability Act (HIPAA) and the Health Information Technology for Economic and Clinical Health Act (HITECH) and state laws applicable to you; the notices of privacy practices You provide consumers and/or patients; and, any applicable consumer or patient consents or authorizations. We reserve the right to add to, change, update, or modify the Privacy Statement to ensure its compliance with all applicable laws and the privacy requirements of any data supplier.
4. Data and Content.
4.1 General Disclaimers
Me+U CARE AND THE SITE ARE EXPRESSLY NOT INTENDED NOR SHOULD EVER BE USED AS EMERGENCY, URGENT AND/OR “911” COMMUNICATION. THE SITE IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL ADVICE OR COUNSEL FROM A LICENSED HEALTH CARE PROFESSIONAL AND IS NOT INTENDED TO BE RELIED UPON FOR MEDICAL ADVICE, CONSULTATION, DIAGNOSIS OR TREATMENT.
All communication software and services, data, information and/or content provided on this Site are provided on an “AS IS” and “AS AVAILABLE” basis. Your reliance upon communication software, services, data, information and/or content used by You at or through the Site is solely at Your risk. Neither We nor our communication, data and content providers assume any liability or responsibility for damage or injury, including death, to You, Your consumers and/or patients, other persons, or property arising from any use of any communication software, services, data, information, idea, or instruction contained in the content or services provided through the Site
4.2 Third Party Data and Content Providers.
We obtain some of the communication services, data, information and content for the Site from third party communication services, data and content providers and they, in turn, may obtain communication services, data and/or content from other third parties. You acknowledge that health and medical information changes rapidly and the communication services, data and/or content of this Site may not reflect those changes or current information or practice. Neither We nor our communication services, data and content providers perform, nor could We or they perform, any independent analysis or investigation of any of the communication services, data, content or information on this Site obtained from third parties including without limitation networks, bandwidth, websites, drug manufacturers, government agencies, or professional journals.
4.3 No Guarantee of Accuracy.
Neither We nor our communication services, data and content providers warrant the accuracy of the communication services, data, information or content on the Site. Any clinical information contained in the Site is intended as a supplement to, and not a substitute for, the knowledge, expertise, skill, and judgment of You, physicians, pharmacists, nurses, caregivers, or other healthcare professionals in consumers and patient care. Neither We nor our communication services, data and content providers are responsible for misuse of a product due to, or other consequence of, any typographical error or other inaccuracy in data, information or content on the Site.
4.4 Patient Notices and Consent
The Site may enable You to access data about Your consumers and patients from third party sources. Some of those third party sources require confirmation by You that You have provided appropriate notice of Your privacy practices to consumers and patients, and to the extent required by law, that You have obtained appropriate patient consent for access of such third party data. Accordingly, where necessary, We may seek express confirmation from You when you access certain data through the Site.
4.5 Data and Information regarding Prescription or OTC Drugs
Neither We nor our communication services, data and content providers make any guarantee that the data, information or content on this Site satisfies government regulations requiring disclosure of information on prescription drug products. Neither We nor our content providers guarantee that the content on the Site covers all possible uses, available drugs, directions, precautions, drug interactions, dosage limitations, or adverse effects that may be associated with any therapeutic treatments or pharmaceuticals. Neither We nor our content providers endorse or advocate the use of any product, procedure, remedy or other use described on the Site. Additional information on any product or procedure may be obtained from the clinical originator or manufacturer. Accordingly, You may not rely on the application of any information on the Site as being applicable to You or Your patient’s specific circumstances and, without limiting the generality of the foregoing, the absence of a warning for a given drug or drug combination is not an indication that the drug, dosage or drug combination is safe, appropriate or effective for You or any other particular patient. You should not rely on the information on the Site as being applicable to Your or Your patient’s specific circumstances.
In registering to provide and in providing the Site, You may be asked to enter certain data concerning Your identification, including but not limited to name, address and contact information. You may also enter notes and information concerning the consumer or patient to whom You provide professional services. Collectively, all data, information and content entered by You is referred to as the “Personal Identifying Data (PID.)” You grant Us and our subcontractors a limited, non-exclusive license to use the PID Data consistent with the then-current Privacy Statement to meet the obligations of this Agreement and to provide the services required under the Site.
5. Record Keeping
We will retain data, information and records that relate to Your use of the Site during the term of this Agreement and for at least three (3) years after you close Your account on the Site, or until such time as required by law
The “Term” of this Agreement will commence on the date You first access the Site and will continue until Your access to the Site is terminated. You may terminate this Agreement by closing Your professional account on the Site or as governed by the terms of any executed Enterprise Agreements. Upon any termination of this Agreement, (a) all rights granted to You under this Agreement will cease, (b) You must promptly discontinue all access to any part of the Site and the use of any data or information downloaded or otherwise obtained from the Site, except such data and records required to be retained by You under applicable law. During the Term, We reserve the right to change, modify, amend or update this Agreement. Your continued use of the Site after any changes to this Agreement will indicate Your agreement to any such changes.
7. License to Use the Site.
Subject to the terms and conditions in the Agreement, We grant You a non-exclusive, non-transferable, license to access and use the Site, as upgraded and/or modified from time to time in Our discretion. You may access and use the Site through You, or if an Enterprise through Your employees and contractors, all of whom are considered Your agents for purposes of this Agreement. All access to and use of the Site by You or Your agents will be by license only.
8. Restrictions on Use.
8.1 No sublicense.
You may not sublicense the rights granted in this Agreement. You may not allow others to use Your credentials, passwords or other access rights to the Site except as expressly granted in this Agreement.
8.2 No reverse engineering.
You will not directly or permit others to copy, reverse engineer, decompile, or create derivative works from the Site and its Services.
8.3 No illegal activity.
You will not use the Site in any way to condone or encourage terrorism, promote or provide pirated or infringed copyrighted works, violate any individual’s right of publicity, image or privacy or any other form of illegal activity.
8.4 No removal of notices.
You will not modify and/or remove any trademark, copyright notices or other labels from the Site.
8.5 Restrictions on Revenue Generation.
You are prohibited from charging any additional fees, payments or charges to other enterprises or consumers, directly or indirectly, outside of, in addition to, or in lieu of fees that could be charged through the Site upon registration for services rendered using the Site. Notwithstanding the foregoing, the restrictions of this Section 8.5 will not be deemed to prevent You from seeking reimbursement for the Site fees on behalf of consumers and Your patients from health plans or other health insurance providers in compliance with the provisions of this Agreement. This provision does not limit the ability that the Company may have to charge fees for Your use of the Site as may have been negotiated between Enterprises and Company, as applicable.
9. Intellectual Property.
We or our licensors will retain all right, title and interest, including all Intellectual Property Rights in and to the Site and Services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Site. The transactions contemplated in this Agreement are not a sale and do not convey to You any rights of ownership in or related to the Site, Services or the Intellectual Property Rights owned by Company. All access to and use of the Site and Services by You or Your consumers and patients will be by license only.
As used herein, the term “Confidential Information” means all non-public information relating to the Parties’ business, affairs and products that has or could have commercial value that is designated as confidential, or a reasonable person knows or reasonably should understand to be confidential. Confidential Information includes, but is not limited to, the terms and conditions of this Agreement and all information and data concerning trade secrets; business, product, technical, and financial information; software programs (including source and object codes); data; business methods, techniques, concepts, systems, procedures, forecasts, strategies, know-how, and inventions; and other information of every kind that relates to the business or technology of either Party.
9.2.2. Protection of Confidential Information.
Except as expressly set forth in this Agreement regarding the use and functionality of the Site and in compliance with the Privacy Statement, the Parties will not, directly or indirectly, use, make available, sell, disclose or otherwise communicate to any third party any of the other Party’s Confidential Information, other than for the purpose of carrying out the obligations of this Agreement and with the express prior written consent of the disclosing Party. The Parties will not permit any of their respective agents or employees to take any of the foregoing action. The Parties acknowledge that the unauthorized use or disclosure of any Confidential Information would be highly prejudicial to the interests of the disclosing party and would materially damage the disclosing Party’s business. The obligations and restrictions herein will not apply to Confidential Information that falls within any of the following exceptions, provided the receiving Party proves by credible written evidence that such information:
(i) is or becomes part of the public domain through no fault of a receiving Party;
(ii) was known by a receiving Party prior to the disclosure by the other Party;
iii) was independently developed by or for a receiving Party completely apart from the disclosures hereunder;
(v) is released pursuant to a court order or otherwise required by law (including without limitations as required under federal or state securities laws), provided that the receiving Party immediately notifies the disclosing Party of such court order or legal requirement, and gives the disclosing Party a reasonable opportunity and cooperates with the disclosing Party to contest, limit or condition the scope of such required disclosure.
9.2.3. Return of Confidential Information.
Subject to the exceptions in Section 9.2.4, upon the disclosing Party’s request (i) the receiving Party will immediately deliver to the disclosing Party the originals and all copies of any and all materials and writings received from, created for, or belonging to the disclosing Party which relate to or contain any of the disclosing Party’s Confidential Information, and (ii) receiving Party will permanently delete any and all of the disclosing Party’s Confidential Information from all computers and other electronic data storage devices in the receiving Party’s control (or under the control of receiving Party’s agents or employees).
9.2.4. Exceptions to Return of Confidential Information.
Notwithstanding the obligation to return or destroy the Confidential Information of the other party, receiving Party may (1) electronically retain Confidential Information in its e-mail and other archival systems, subject to the obligations not to disclose or use such Confidential Information and to use at least the same degree of care in safeguarding the Confidential Information as receiving Party uses for its own confidential and proprietary information, but with no less than reasonable care, and (2) retain any data or record received into or created by the Site that is required by law, rule or regulation to be retained.
The Parties agree that each will be irreparably harmed and money damages would be inadequate compensation in the event of a breach of any of the provisions of this Article 9. Accordingly, all of the provisions of this Article 9 are specifically enforceable by injunctive and other relief against the other Party, without the posting of a bond, in addition to any other remedies available.
10. Your Representations and Warranties.
You represent, warrant and covenant that:
10.1 Compliance with Laws; Licensure
You will use the Site in compliance with all applicable laws, rules or regulations. You will maintain all applicable licenses, credentials or other requirements necessary for the rendering of any medical or other professional advice, treatment or diagnosis in providing the Site. You will only provide Site in the states, geographic locations, or jurisdictions in which You are properly licensed and/or credentialed to do so.
10.2 Standard of Care.
You will provide the Site consistent with the professional standards of care of the applicable professional community in which You practice.
11. Company Representations and Warranties.
Except for licenses and permissions to Intellectual Property Rights granted to Us by third parties and except for public domain, free ware or open source software, We represent and warrant that We own all right, title and interest in and to all software and other technology used to provide the Site and all Intellectual Property Rights relating thereto
THE SITE IS PROVIDED “AS IS” and “AS AVAILABLE” WITH NO WARRANTIES WHATSOEVER. WE DO NOT WARRANT THAT THE SOFTWARE OR SITE WILL MEET ALL OF A USER’S REQUIREMENTS OR THAT THE ACCESSIBILITY OR OPERATION OF THE SOFTWARE OR SITE WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. USER ACKNOWLEDGES AND AGREES THAT THE SITE’S SOFTWARE AND SERVICES ARE NOT DESIGNED FOR, NOT AUTHORIZED FOR, AND MUST NOT BE RELIED UPON FOR USE IN ANY SITUATION RELATING TO EMERGENCY, MISSION CRITICAL, LIFE THREATENING SITUATIONS, HEALTH OR OTHER DIAGNOSIS, MEDICATION OR TREATMENT OR FOR ANY OTHER USE REQUIRING FAILSAFE PERFORMANCE OR WHERE FAILURE COULD LEAD TO DEATH, HEALTH CONSEQUENCES, SAFETY RISK, PERSONAL INJURY, OR ENVIRONMENTAL DAMAGE. THE COMPANY’S SOFTWARE AND SERVICES ARE NOT USABLE WITHOUT ADEQUATE BANDWIDTH AND DEVICES, AND THE COMPANY IS NOT RESPONSIBLE FOR PROVIDING DEVICES NOR BANDWIDTH NOR ITS QUALITY. FURTHER WE DO NOT REPRESENT, WARRANT OR ENDORSE THE ACCURACY OR RELIABILITY OF ANY ADVICE, OPINION, STATEMENT, OR OTHER INFORMATION DISPLAYED, DOWNLOADED FROM, OR DISTRIBUTED THROUGH THE SITE. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY DATA, INFORMATION, OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SITE. YOU AGREE THAT YOUR ACCESS TO THE SITE IS AT YOUR OWN RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY LIABILITY OR DAMAGE YOU INCUR THROUGH ACCESS TO THE SITE.
EXCEPT WHERE THE LAWS AND REGULATIONS OR A PARTICULAR JURISDICTION CONCERNING WARRANTIES CANNOT BE WAIVED OR EXCLUDED BY AGREEMENT, WE EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING THE SITE, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. YOU RECOGNIZE THAT THE CURRENT STATE OF TECHNOLOGY DOES NOT ALLOW FOR ERROR-FREE ACCESS TO THE SITE AND INTERRUPTIONS, CRASHES, AND DOWNTIME BEYOND OUR CONTROL MAY OCCUR FROM TIME TO TIME.
WE DO NOT MAKE ANY REPRESENTATION OR WARRANTY RELATING TO ANY CARE SOLUTION AND ALL CARE SOLUTIONS ARE PROVIDED ON AN “AS IS” BASIS.
THE SITE IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL ADVICE OR COUNSEL FROM A LICENSED HEALTH CARE PROFESSIONAL AND IS NOT INTENDED TO BE RELIED UPON FOR MEDICAL ADVICE, CONSULTATION, DIAGNOSIS OR TREATMENT.
13. LIMITATIONS ON LIABILITY
IN NO EVENT WILL ANY PARTY HERETO BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUE, LOST PROFITS OR LOSS OF GOODWILL, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14. DAMAGES CAP.
THE AGGREGATE LIABILITY OF ANY PARTY WITH RESPECT TO ANY CLAIMS FOR BREACH, INJURY, DEATH OR DAMAGE RESULTING FROM, RELATING TO OR IN ANY WAY ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO AND WILL IN NO EVENT EXCEED TEN THOUSAND DOLLARS ($10,000.00). NOTWITHSTANDING THE FOREGOING SENTENCE, NONE OF THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 14 APPLY TO CLAIMS UNDER SECTION 16, OR ANY VIOLATION OF ANY LAW, RULE OR REGULATION APPLICABLE TO THE SITE OR YOUR USE THEREOF.
You agree to maintain any type of insurance (such as medical malpractice or professional liability) as required by the licensure rules or regulations of Your applicable state regulating or licensing entity or as dictated by the standard of practice for the medical or other professional community in which You practice. You will provide Us with certificates evidencing such insurance coverage upon Our reasonable request. Your failure to maintain appropriate insurance will be a basis for immediate termination of this Agreement, at Our sole and absolute discretion.
You agree to hold harmless and indemnify Company, their licensors and each of their officers, directors, employees, subcontractors, data or content providers, other vendors, and agents from and against all losses, damages, or expenses of whatever form or nature, including attorneys’ or accountants’ fees and other costs of legal defense, that they or any of them may sustain or incur as a result of any act or omissions by You, and any of Your officers, directors, employees, agents, sub-agents, or representatives related to their offering and providing the Site, including, but not limited to: Medical malpractice, professional liability, breach of standard of care, failure to gain informed consent, negligence or other tortious conduct with respect to offering and providing the Site; Failure to maintain proper licensure with respect to any medical advice, treatment or diagnosis, as required under any applicable state law with respect to the Site; Violation of any applicable law with respect to Your offering or providing the Site; or, Infringement of any third party’s Intellectual Property Rights by Your use of the Site or any logo, brand or trademark used by You in the Site.
Without notice or cure period required, We may terminate Your license to use the Site, and Your ability to provide services through the Site, upon a material breach of Your representations, warranties, or obligations under the Agreement.
17.2 Upon Notice by You.
Unless You are an Enterprise user bound by an Enterprise Agreement, You may terminate this Agreement and/or Your offering of the Site’s services for any reason using the administrative tools made available to you on the Site. You may terminate Your professional or consumer account on the Site at any time. However, if applicable, You agree to continue to provide those Site services to users who purchased the Site’s services prior to Your termination of Your account until such time as those services are concluded.
18. Agreement to Arbitrate
18.1 Agreement to Arbitrate
This Section 18 is referred to in these Terms as the “Arbitration Agreement”. Unless you opt-out in accordance with the opt-out procedures set forth below, you agree that any and all disputes or claims that have arisen or may arise between you and the Company, whether relating to these Terms (including any alleged breach thereof), the Services, the Site, or otherwise, shall be resolved exclusively through final and binding arbitration, rather than a court in accordance with the terms of this Arbitration Agreement, except you may assert individual claims in small claims court, if your claims qualify. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
18.2 Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND THE COMPANY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND THE COMPANY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER COMPANY USERS.
18.3 Pre-Arbitration Dispute Resolution
The Company is always interested in resolving disputes amicably and efficiently. So before you commence arbitration, we suggest that you contact us to explain your complaint, as we may be able to resolve it without the need for arbitration. You may contact us via email at Support@meucare.com or at Me+U CARE, LLC Attn: Legal Department, 100 Spectrum Center Drive, Suite 900, Irvine CA 92618.
18.4 Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org Information about the AAA’s Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would, including without limitation, the limitation of liability provisions in Section 13. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. To commence an arbitration against the Company, you must complete a short form, submit it to the AAA, and send a copy to the Company at Me+U CARE, LLC, Attn: Legal Department, 100 Spectrum Center Drive, Suite 900, Irvine, CA 92618. For more information, see the AAA’s claim filing page, http://www.adr.org/fileacase. You may represent yourself in the arbitration or be represented by an attorney or another representative. Once we receive your arbitration claim, we may assert any counterclaims we may have against you. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less you or the Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and the Company subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by you and/or the Company, unless the arbitrator requires otherwise. The arbitrator will decide the substance of all claims in accordance with the laws of the state of California, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Company users, but is bound by rulings in prior arbitrations involving the same Company user to the extent required by applicable law.
18.5 Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA’s Rules, unless otherwise provided in this Agreement to Arbitrate. If you demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, the Company will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, the Company will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse the Company for all fees associated with the arbitration paid by the Company on your behalf that you otherwise would be obligated to pay under the AAA’s rules.
All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court decides that any term or provision of this Arbitration Agreement other than Section 18.2 is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of Section 18.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms will continue to apply.
18.8 Opt-Out Procedure
You can choose to reject this Arbitration Agreement by mailing us a written opt-out notice (“Opt-Out Notice”) in accordance with the terms of this Section. For new Site users, the Opt-Out Notice must be postmarked no later than 30 Days after the date you accept these Terms for the first time or January 15, 2015, whichever is later. You must mail the Opt-Out Notice to Me+U CARE, LLC, Attn: Legal Department, 100 Spectrum Center Drive, Suite 900, Irvine, CA 92618. The Opt-Out Notice must state that you do not agree to the Arbitration Agreement and must include your name, address, phone number, and the email address(es) used to log in to the Site account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Arbitration Agreement. If you opt out of the Arbitration Agreement, all other terms of these Terms will continue to apply. Opting out of the Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us.
18.9 Future Changes to this Arbitration Agreement
Notwithstanding any provision in these Terms to the contrary, you and we agree that if we make any change to this Arbitration Agreement (other than a change to any notice address or website link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against the Company prior to the effective date of the change. Moreover, if we seek to terminate this Arbitration Agreement from these Terms, such termination shall not be effective until 30 days after the version of these Terms not containing the Arbitration Agreement is posted to the Site, and shall not be effective as to any claim that was filed in a legal proceeding against the Company prior to the effective date of removal.
The following provisions will survive the termination of this Agreement: Sections 3, 9, 13, 14, 16, 18, 20, and any other terms that by their nature should reasonably be presumed to survive termination or expiration of this Agreement.
20. General Terms.
20.1 Compliance with Laws
Each Party will comply with all laws, rules, and regulations applicable to its actions and obligations under this Agreement.
20.2 Governing Law and Jurisdiction.
This Agreement will be governed by and construed in accordance with the substantive laws of the state of California without giving effect to the conflict of laws provisions thereof. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Each of the Parties hereby submits to the nonexclusive jurisdiction of any United States Federal or California State court sitting in Orange County, California for purposes of all legal proceedings arising out of or relating to this Agreement or the transactions provided for herein. Each of the Parties hereto irrevocably waives, to the fullest extent not prohibited by law, any objection which any of them may now or hereafter have to the laying of the venue of any such proceeding brought in such a court, any claim that any such proceeding brought in such a court has been brought in an inconvenient forum, and the right to a trial by jury.
20.3 Force Majeure
No Party will be considered in default of performance under this Agreement to the extent that performance of such obligations is delayed or prevented by fire, flood, hurricanes, earthquake or similar natural disasters, riot, war, terrorism, labor disputes, civil strife, shortages or unavailability of materials, to the extent such default is beyond the reasonable control of such Party.
20.4 Entire Agreement.
This Agreement sets forth the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes and replaces all previous discussions, negotiations and agreements. No amendment of this Agreement will be binding unless it is in writing and signed by the Parties.
The failure of any Party to insist upon the performance of any provision of this Agreement or to exercise any right or privilege granted to such Party under this Agreement will not be construed as waiving such provision or any other provision of this Agreement, and the same will continue in full force and effect.
If any provision of this Agreement is invalid or unenforceable in any jurisdiction, such provision will be fully severable from this Agreement and the other provisions hereof will remain in full force and effect in such jurisdiction and the remaining provisions hereof will be liberally construed to carry out the provisions and intent hereof. The invalidity or unenforceability of any provision of this Agreement in any jurisdiction will not affect the validity or enforceability of such provision in any other jurisdiction, nor will the invalidity or unenforceability of any provision of this Agreement with respect to any person or entity affect the validity or enforceability of such provision with respect to any other person or entity.
20.7 Headings, References and Construction.
All references in this Agreement to Articles, Sections, and other subdivisions refer to the Articles, Sections, and other subdivisions of this Agreement unless expressly provided otherwise. Titles and headings appearing at the beginning of any subdivision are for convenience only and do not constitute any part of any such subdivision and will be disregarded in construing the language contained in this Agreement. The word “or” is not exclusive. All references to days are to calendar days unless otherwise specifically stated. References to “business days” are to any day but Saturday and Sunday that nationally chartered banks are required to be open. Pronouns in masculine, feminine and neuter gender will be construed to include any other gender. Words in the singular form will be construed to include the plural and words in the plural form will be construed to include the singular, unless the context otherwise requires.
20.8 Relationship of Parties
It is not the intention of the parties to create, nor will this Agreement be construed as creating, a partnership, joint venture, agency relationship, trust or other association that would render either party liable for the action of the other party. Neither party will have any right, power or authority to act or to create any duty or obligation, express or implied, on behalf of the other party, or to hold itself out as a representative or agent of the other party.
20.9 Attorneys’ Fees.
In the event a dispute arises regarding this Agreement, and a court decides that the Arbitration Agreement shall be null and void, the prevailing Party in any court action will be entitled to its reasonable attorneys’ fees and expenses incurred in addition to any other relief to which it is entitled.
20.10 Rights and Remedies.
The rights and remedies herein will be cumulative and additional to any other or further rights and remedies available at law or in equity.
Updated On: 1/15/2020