MEDFlyT Terms of Use – Agencies

 

LAST MODIFIED: November 2016

 

Welcome to MedFlyt’s (“Company”, “we”, “us”, or “our”) iPhone App -  http://bit.ly/Medlyt_iPhone And/Or Android App - http://bit.ly/Medflyt_Android

And/or Website - http://www.medflyt.com/  (the “Services”).  Use of the  Services is governed by these Terms of Use (the “Agreement”).  Please review this Agreement carefully before accessing or using the Services.

 

By accessing or using the Services, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Services. If you do not agree to all of the terms of this Agreement, do not use the Services. 

 

We may update or revise this Agreement from time to time. If we determine that the terms of this Agreement should be revised, we will post the revised Agreement through our Services and update the “LAST MODIFIED” date provided above.  You acknowledge the ability to access this Agreement through our Services and agree to review this Agreement periodically. Except as otherwise expressly stated by us, any use of the Services is subject to the version of this Agreement in effect at the time of use, and your continued use of the Services will mean you accept the current revised Agreement. 

 

I.                PRIVACY

 

We have developed a Privacy Policy in order to inform you of our practices with respect to the collection, use, disclosure and protection of your data and information.  The Privacy Policy is accessible at http://www.medflyt.com/PrivacyPolicy  Our Privacy Policy is expressly incorporated into this Agreement, and your use of the Services means that you agree to the terms of the Privacy Policy.

 

II.             MEMBERSHIP ACCOUNT

 

MedFlyt is an innovative multimedia platform that streamlines the process of staffing home health visits by connecting home health agencies (“Agencies”) with health care professionals (“Caregivers”). To use the Services as an Agency, a user must create an account with MedFlyt (a “Membership Account”).  When creating a Membership Account with MedFlyt, you will be obligated to provide us with certain information, including First name, last name, Work email address, password, company name, company address, company phone number, company type (certified home health agency, licensed home care services agency, managed long term care plan, hospital, hospice, etc.).  In order to complete the sign-up process, you will also be required to select a password for use in accessing the Services.

 

You are solely responsible for maintaining the confidentiality of your Membership Account information and for all use of your Membership Account, whether or not authorized by you.  We reserve the right to terminate your Membership Account at any time for any reason, including but not limited to your violation of (i) the terms of this Agreement or (ii) any of the following rules of conduct:

 

·       You will not submit, post, or otherwise make available any content or materials that are unlawful, harmful, threatening, abusive, harassing, vulgar, obscene, invasive of another’s privacy, or discriminatory of any person’s race, gender, ethnicity, sexual orientation, or sexual identity. 

·       You will not submit, post, or otherwise make available any content or materials that infringe or violate any rights of any party.

·       You will not impersonate any other person, including any other Agency, or falsely represent your affiliation with any other person.

·       You will use the Services only for the purposes of your Agency, relating to staffing caregivers for home health visits through the MedFlyt platform.  You will not resell any Services to a third party.

·       You will not use the Services for purposes of violating any state, federal, or international laws.

·       You will not attempt to interfere, take down, or disrupt our servers or networks.

·       You will not permit unauthorized third party access to your Membership Account, username, or password.

·       You will notify us of any attempted breach of your Membership Account or any unauthorized disclosure of your username or password.

·       You will provide any information necessary to confirm the identity of your Agency.

 

III.           LICENSE AND LIMITATIONS ON USE

 

Subject to your compliance with this Agreement, Company hereby grants you a limited, non-exclusive, non-transferrable license, without the right to sublicense, to access and use the Services.

 

The Services, and all of its contents, including without limitation, any code, software, text, photographs, images, illustrations, graphics, video material, audio material, software, logos, titles, names, graphics and button icons (collectively “Proprietary Material”), are or may be protected by patent, copyright, trade secret, trademark and other laws of the United States, as well as international conventions and the laws of other countries. The Proprietary Material is owned or controlled by Company or by other parties that have provided rights thereto to Company.

 

You may not, and agree that you will not, use, publish, reproduce, display, distribute, or modify the Proprietary Material or any portion thereof, for any purpose or by any means, method, or process. Modification of the materials appearing on the Services or use of such materials for any other purpose beyond the access and use of the Services may represent a violation of our copyright and other proprietary rights. 

 

As part of our Services, we may make software available for you to  use.  Such software is subject to the following terms:  The software is protected by copyright and other intellectual property laws and treaties and is owned by the Company. You may not: (i) copy, sell, redistribute, rent, lease or otherwise transfer the software or any of the limited rights you receive hereunder; (ii) incorporate it or any portion of it into another product; (iii) reverse engineer, decipher, decompile, or disassemble the software or otherwise attempt to derive the source code or underlying ideas or algorithms of the software or any portion of the software, including without limitation any application or widget (except where expressly permitted by law); (iv) export, re-export, transfer and/or release the software, for any proscribed end-use, or to any proscribed country, entity or person (wherever located), without proper authorization; (v) modify, translate, adapt, or create derivative works from the software or any portion of the software in any way or remove proprietary notices in the software. You agree to abide by all laws and regulations in effect regarding your use of the software. You may not authorize or assist any third party to do any of the things prohibited in this paragraph.

 

 

IV.           USER CONTENT AND OTHER WEBSITES

 

The Company does not allow or authorize you or other users to post, on the Services, content such as information, data, text, photographs, graphics, video, messages, comments, reviews or events, facts, advice, and other material other than the fields of information (identified in the Webapp software utilized by Agencies and the mobile app utilized by Caregivers respectively) about the home heath visits posted by Agencies and the staffing of visits by Caregivers in connection with the Services.  If we determine to change our practices and allow posting of content at any time in the future, we will notify you by posting a revision of this Agreement in the manner described in the third paragraph. 

 

The Company collects information about the Caregivers in your employ for the limited purpose of facilitating the staffing of home health visits by Caregivers in connection with the Services, such as through the push notification broadcasting of home health visits posted by the Agency.  If we wish to use such information for any other purpose at any time in the future, we will notify you by posting a revision of this Agreement in the manner described in the third paragraph.   Notwithstanding the foregoing, Company and its third-party service providers may use a variety of technologies that passively or automatically collect information about how the Services are accessed and used so that we can determine how to better tailor our content or enhance the Services. 

 

 

V.              DISCLAIMER

 

VISITORS TO THE SERVICES AGREE THAT THEIR USE OF, AND RELIANCE ON ANY ADVICE OR INFORMATION OBTAINED FROM OR THROUGH, THE SERVICES IS AT THEIR OWN SOLE RISK. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” COMPANY EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (i) ANY WARRANTIES CONCERNING THE ACCURACY, TIMELINESS, OR COMPLETENESS OF THE CONTENT OF THE SERVICES; AND (ii) ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  WE DO NOT WARRANT OR GUARANTEE: (1) THAT ANY PORTION OF THE SERVICES WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES, OR ANYTHING ELSE MANIFESTING CONTAMINATING OR DESTRUCTIVE PROPERTIES; OR (2) THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

 

BY USING THE SERVICES, YOU AGREE AND ACKNOWLEDGE THAT MEDFLYT IS NOT ENGAGED IN THE PRACTICE OF MEDICINE, DOES NOT PROVIDE MEDICAL ADVICE, AND IS NOT A HEALTH CARE PROVIDER.  EMPLOYEES OF MEDFLYT ARE NOT OR DO NOT ACT IN THE CAPACITY OF LICENSED HEALTH CARE OR MEDICAL PROFESSIONALS AND CANNOT PROVIDE YOU OR ANY OF YOUR CLIENTS WITH MEDICAL ADVICE OR HEALTH CARE OR MEDICAL SERVICES.  NOTHING CONTAINED IN THE SERVICES SHOULD BE CONSIDERED TO BE MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. 

 

MEDFLYT AND ITS SERVICES ARE NOT INTENDED TO BE USED IN CASES OF MEDICAL EMERGENCIES, INCLUDING BUT NOT LIMITED TO SITUATIONS IN WHICH A PERSON IS UNCONSCIOUS, NOT BREATHING, EXPERIENCING CHEST PAINS, BLEEDING UNCONTROLLABLY, OR SUFFERING FROM AN ALLERGIC REACTION.  IN THE EVENT OF A MEDICAL EMERGENCY, PLEASE CALL 911 FOR EMERGENCY MEDICAL HELP.  

 

VI.           CLAIMS REGARDING COPYRIGHT INFRINGEMENT

 

We will undertake to prevent any unauthorized distribution or posting of information collected from you in connection with the Services.  Notwithstanding the foregoing, if you believe that your copyrighted material has been distributed or posted on the Services in a way that constitutes copyright infringement, please inform our Copyright Agent by providing written notice of said alleged infringement to Barbara@medflyt.com   The written notice should include at least the following information: (1) a detailed description of the copyrighted work that you allege has been infringed; (2) a description of the allegedly infringing material and its location on the Services; (3) contact information, including your address, telephone number, and email address; (4) a statement by you indicating that you have a good-faith belief that the allegedly infringing use is not authorized by the copyright owner, its agent, or the law; (5) a statement by you made under penalty of perjury stating that all of the information provided in your notice is accurate and that you are authorized to act on the copyright owner’s behalf; and (6) an electronic or physical signature of the copyright owner or someone authorized on the copyright owner’s behalf to assert infringement of copyright. Please note that the contact information provided in this paragraph is for suspected copyright infringement only.

 

VII.         INDEMNIFICATION

 

By using the Services, you agree to defend, indemnify, and hold harmless the Company and its officers, directors, employees, contractors and suppliers from and against any and all claims, liabilities, damages, losses, costs, and expenses, including without limitation all attorneys’ fees and expenses, arising in any way from or in connection with (i) your use of the Services, or (ii) any violation by you of this Agreement, our Privacy Policy or any other policy posted on the Services. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to provide us with any cooperation as we may request in asserting any available defenses. 

 

VIII.      LIMITATION OF LIABILITY

 

YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS NOT LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR ANY OTHER DAMAGES (WHETHER IN CONTRACT, TORT, OR OTHERWISE), EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF (1) THIS AGREEMENT, (2) THE AVAILABILITY, USE, RELIANCE ON, OR INABILITY TO USE THE SERVICES OR ANY CONTENT OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED FROM THE SERVICES, OR (3) UNAUTHORIZED ACCESS TO YOUR DATA, INFORMATION  OR MEMBERSHIP ACCOUNT. IN THE EVENT THAT THE LIMITATION OF LIABILITY PURSUANT TO THIS SECTION IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, THEN COMPANY’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN NO EVENT SHALL COMPANY’S LIABILITY TO YOU EXCEED THE AMOUNT PAID BY YOU TO THE COMPANY.

 

IX.           ARBITRATION

 

Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and Company or its successors or assigns shall exclusively be settled through binding and confidential arbitration.  Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. Unless otherwise agreed upon by the parties in writing, the arbitration will be conducted before one arbitrator and will be governed by the American Arbitration Association’s (“AAA”) Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).

 

To the fullest extent permitted by applicable law, you and Company must abide by the following rules: (1) any claims brought by you or company must be brought in the party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding; (2) the arbitrator may not consolidate more than one person’s claims, may not otherwise preside over any form of a representative or class proceeding, and may not award class-wide relief; (3) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (4) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (5) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.

 

X.              GENERAL PROVISIONS

 

This Agreement contains the entire agreement between you and Company regarding your use of the Services, and supersedes all previous or contemporaneous oral or written agreements regarding the same subject matter.  If any of the provisions, or portions thereof, of this Agreement is found to be invalid under any applicable statute or rule of law, the remainder of this Agreement shall remain in full force and effect. You agree that this Agreement and any dispute, litigation, or arbitration arising from this Agreement will be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of laws rules. You expressly agree that exclusive jurisdiction for any litigation with us (or any of our affiliates) or relating in any way to your use of the Services resides in the courts of the County of New York, State of New York, and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of the County of New York, State of New York.  No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement, and neither party has any authority of any kind to bind the other in any respect.

 

 

 

MEDFlyT Terms of Use – caregivers

 

LAST MODIFIED: November 2016

 

Welcome to MedFlyt’s (“Company”, “we”, “us”, or “our”) ”) iPhone App -  http://bit.ly/Medlyt_iPhone And/Or Android App - http://bit.ly/Medflyt_Android

And/or Website - http://www.medflyt.com/(the “Services”).  Use of the  Services is governed by these Terms of Use (the “Agreement”).  Please review this Agreement carefully before accessing or using the Services.

 

By accessing or using the Services, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Services. If you do not agree to all of the terms of this Agreement, do not use the Services. 

 

We may update or revise this Agreement from time to time. If we determine that the terms of this Agreement should be revised, we will post the revised Agreement through our Services and update the “LAST MODIFIED” date provided above.  You acknowledge the ability to access this Agreement through our Services and agree to review this Agreement periodically. Except as otherwise expressly stated by us, any use of the Services is subject to the version of this Agreement in effect at the time of use, and your continued use of the Services will mean you accept the current revised Agreement. 

 

XI.           PRIVACY

 

We have developed a Privacy Policy in order to inform you of our practices with respect to the collection, use, disclosure and protection of your data and information.  The Privacy Policy is accessible at http://www.medflyt.com/PrivacyPolicy .  Our Privacy Policy is expressly incorporated into this Agreement, and your use of the Services means that you agree to the terms of the Privacy Policy.

 

XII.         MEMBERSHIP ACCOUNT

 

MedFlyt is an innovative multimedia platform that streamlines the process of staffing home health visits by connecting home health agencies (“Agencies”) with health care professionals (“Caregivers”). To use the Services as a Caregiver, a user must create an account with MedFlyt (a “Membership Account”).  When creating a Membership Account with MedFlyt, you will be obligated to provide us with certain information, including mobile phone number, first name, last name, email address, home address, your face photo, your selected pin code.  In order to complete the sign-up process, you will also be required to select a username and password for use in accessing the Services. You will be required to type the 5 digit verification code that was sent to your mobile device, and you will be asked to type a 4 digit PIN for later use of the app.

 

You are solely responsible for maintaining the confidentiality of your Membership Account information and for all use of your Membership Account, whether or not authorized by you.  We reserve the right to terminate your Membership Account at any time for any reason, including but not limited to your violation of (i) the terms of this Agreement or (ii) any of the following rules of conduct:

 

·       You will not submit, post, or otherwise make available any content or materials that are unlawful, harmful, threatening, abusive, harassing, vulgar, obscene, invasive of another’s privacy, or discriminatory of any person’s race, gender, ethnicity, sexual orientation, or sexual identity. 

·       You will not submit, post, or otherwise make available any content or materials that infringe or violate any rights of any party.

·       You will not impersonate any other person, including any other Caregiver, or falsely represent your affiliation with any other person.

·       You will only use the Services for your own purposes, relating to seeking opportunities to be staffed for home health visits through the MedFlyt platform.  You will not resell any Services to a third party.

·       You will not use the Services for purposes of violating any state, federal, or international laws.

·       You will not attempt to interfere, take down, or disrupt our servers or networks.

·       You will not permit unauthorized third party access to your Membership Account, username, or password.

·       You will notify us of any attempted breach of your Membership Account or any unauthorized disclosure of your username or password.

·       You will provide any information necessary to confirm your identity.

 

XIII.      LICENSE AND LIMITATIONS ON USE

 

Subject to your compliance with this Agreement, Company hereby grants you a limited, non-exclusive, non-transferrable license, without the right to sublicense, to access and use the Services.

 

The Services, and all of its contents, including without limitation, any code, software, text, photographs, images, illustrations, graphics, video material, audio material, software, logos, titles, names, graphics and button icons (collectively “Proprietary Material”), are or may be protected by patent, copyright, trade secret, trademark and other laws of the United States, as well as international conventions and the laws of other countries. The Proprietary Material is owned or controlled by Company or by other parties that have provided rights thereto to Company.

 

You may not, and agree that you will not, use, publish, reproduce, display, distribute, or modify the Proprietary Material or any portion thereof, for any purpose or by any means, method, or process. Modification of the materials appearing on the Services or use of such materials for any other purpose beyond the access and use of the Services may represent a violation of our copyright and other proprietary rights. 

 

As part of our Services, we may make software available for you to download or use. Such software is subject to the following terms:  The software is protected by copyright and other intellectual property laws and treaties and is owned by the Company. You may not: (i) copy, sell, redistribute, rent, lease or otherwise transfer the software or any of the limited rights you receive hereunder; (ii) incorporate it or any portion of it into another product; (iii) reverse engineer, decipher, decompile, or disassemble the software or otherwise attempt to derive the source code or underlying ideas or algorithms of the software or any portion of the software, including without limitation any application or widget (except where expressly permitted by law); (iv) export, re-export, transfer and/or release the software, for any proscribed end-use, or to any proscribed country, entity or person (wherever located), without proper authorization; (v) modify, translate, adapt, or create derivative works from the software or any portion of the software in any way or remove proprietary notices in the software. You agree to abide by all laws and regulations in effect regarding your use of the software. You may not authorize or assist any third party to do any of the things prohibited in this paragraph.

 

 

XIV.      USER CONTENT AND OTHER WEBSITES

 

The Company does not allow or authorize you or other users to post, on the Services, content such as information, data, text, photographs, graphics, video, messages, comments, reviews or events, facts, advice, and other materials other than the fields of information (identified in the Webapp software utilized by Agencies and the mobile app utilized by Caregivers respectively) about the home heath visits posted by Agencies and the staffing of visits by Caregivers in connection with the Services.  If we determine to change our practices and allow posting of content at any time in the future, we will notify you by posting a revision of this Agreement in the manner described in the third paragraph. 

 

XV.         DISCLAIMER

 

VISITORS TO THE SERVICES AGREE THAT THEIR USE OF, AND RELIANCE ON ANY ADVICE OR INFORMATION OBTAINED FROM OR THROUGH, THE SERVICES IS AT THEIR OWN SOLE RISK. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” COMPANY EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (i) ANY WARRANTIES CONCERNING THE ACCURACY, TIMELINESS, OR COMPLETENESS OF THE CONTENT OF THE SERVICES; AND (ii) ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  WE DO NOT WARRANT OR GUARANTEE: (1) THAT ANY PORTION OF THE SERVICES WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES, OR ANYTHING ELSE MANIFESTING CONTAMINATING OR DESTRUCTIVE PROPERTIES; OR (2) THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

 

BY USING THE SERVICES, YOU AGREE AND ACKNOWLEDGE THAT MEDFLYT IS NOT ENGAGED IN THE PRACTICE OF MEDICINE, DOES NOT PROVIDE MEDICAL ADVICE, AND IS NOT A HEALTH CARE PROVIDER.  EMPLOYEES OF MEDFLYT ARE NOT OR DO NOT ACT IN THE CAPACITY OF LICENSED HEALTH CARE OR MEDICAL PROFESSIONALS AND CANNOT PROVIDE YOU OR ANY OF YOUR CLIENTS WITH MEDICAL ADVICE OR HEALTH CARE OR MEDICAL SERVICES.  NOTHING CONTAINED IN THE SERVICES SHOULD BE CONSIDERED TO BE MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. 

 

MEDFLYT AND ITS SERVICES ARE NOT INTENDED TO BE USED IN CASES OF MEDICAL EMERGENCIES, INCLUDING BUT NOT LIMITED TO SITUATIONS IN WHICH A PERSON IS UNCONSCIOUS, NOT BREATHING, EXPERIENCING CHEST PAINS, BLEEDING UNCONTROLLABLY, OR SUFFERING FROM AN ALLERGIC REACTION.  IN THE EVENT OF A MEDICAL EMERGENCY, PLEASE CALL 911 FOR EMERGENCY MEDICAL HELP.  

 

 

XVI.      CLAIMS REGARDING COPYRIGHT INFRINGEMENT

 

We will undertake to prevent any unauthorized distribution or posting of information collected from you in connection with the Services.  Notwithstanding the foregoing, if you believe that your copyrighted material has been distributed or posted on the Services in a way that constitutes copyright infringement, please inform our Copyright Agent by providing written notice of said alleged infringement to Barbara@medflyt.com   The written notice should include at least the following information: (1) a detailed description of the copyrighted work that you allege has been infringed; (2) a description of the allegedly infringing material and its location on the Services; (3) contact information, including your address, telephone number, and email address; (4) a statement by you indicating that you have a good-faith belief that the allegedly infringing use is not authorized by the copyright owner, its agent, or the law; (5) a statement by you made under penalty of perjury stating that all of the information provided in your notice is accurate and that you are authorized to act on the copyright owner’s behalf; and (6) an electronic or physical signature of the copyright owner or someone authorized on the copyright owner’s behalf to assert infringement of copyright. Please note that the contact information provided in this paragraph is for suspected copyright infringement only.

 

XVII.    INDEMNIFICATION

 

By using the Services, you agree to defend, indemnify, and hold harmless the Company and its officers, directors, employees, contractors and suppliers from and against any and all claims, liabilities, damages, losses, costs, and expenses, including without limitation all attorneys’ fees and expenses, arising in any way from or in connection with (i) your use of the Services, or (ii) any violation by you of this Agreement, our Privacy Policy or any other policy posted on the Services. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to provide us with any cooperation as we may request in asserting any available defenses. 

 

XVIII. LIMITATION OF LIABILITY

 

YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS NOT LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR ANY OTHER DAMAGES (WHETHER IN CONTRACT, TORT, OR OTHERWISE), EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF (1) THIS AGREEMENT, (2) THE AVAILABILITY, USE, RELIANCE ON, OR INABILITY TO USE THE SERVICES OR ANY CONTENT OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED FROM THE SERVICES, OR (3) UNAUTHORIZED ACCESS TO YOUR DATA, INFORMATION  OR MEMBERSHIP ACCOUNT. IN THE EVENT THAT THE LIMITATION OF LIABILITY PURSUANT TO THIS SECTION IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, THEN COMPANY’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN NO EVENT SHALL COMPANY’S LIABILITY TO YOU EXCEED THE AMOUNT PAID BY YOU TO THE COMPANY.

 

XIX.      ARBITRATION

 

Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and Company or its successors or assigns shall exclusively be settled through binding and confidential arbitration.  Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. Unless otherwise agreed upon by the parties in writing, the arbitration will be conducted before one arbitrator and will be governed by the American Arbitration Association’s (“AAA”) Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).

 

To the fullest extent permitted by applicable law, you and Company must abide by the following rules: (1) any claims brought by you or company must be brought in the party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding; (2) the arbitrator may not consolidate more than one person’s claims, may not otherwise preside over any form of a representative or class proceeding, and may not award class-wide relief; (3) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (4) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (5) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.

 

XX.         GENERAL PROVISIONS

 

This Agreement contains the entire agreement between you and Company regarding your use of the Services, and supersedes all previous or contemporaneous oral or written agreements regarding the same subject matter.  If any of the provisions, or portions thereof, of this Agreement is found to be invalid under any applicable statute or rule of law, the remainder of this Agreement shall remain in full force and effect. You agree that this Agreement and any dispute, litigation, or arbitration arising from this Agreement will be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of laws rules. You expressly agree that exclusive jurisdiction for any litigation with us (or any of our affiliates) or relating in any way to your use of the Services resides in the courts of the County of New York, State of New York, and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of the County of New York, State of New York.  No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement, and neither party has any authority of any kind to bind the other in any respect.