Terms of Service and Use
Effective Date:December 14, 2012
Last Updated Date:March 26, 2013
PLEASE READ THIS TERMS OF SERVICE AND USE AGREEMENT (THE AGREEMENT) CAREFULLY. THE MEDLERT MOBILE APPLICATION AND RELATED WEBSITE AND SERVICES ARE DESIGNED TO ASSIST YOU IN CONTACTING EMERGENCY SERVICE RESPONDERS (E.G., 911 OPERATORS) AND OTHER USERS AND INDIVIDUALS YOU DESIGNATE THROUGH YOUR SMARTPHONE AND TELECOMMUNICATIONS CARRIER. IT MAY NOT, HOWEVER, ALWAYS ACCOMPLISH THIS OR ANY OTHER OBJECTIVE. WE DO NOT GUARANTEE THAT YOU WILL ALWAYS RECEIVE TIMELY OR ACCURATE EMERGENCY ASSISTANCE OR BE ABLE TO COMMUNICATE WITH ANYONE. YOU AND YOUR FAMILY, FRIENDS, AND CAREGIVERS SHOULD NOT RELY ON OUR APPLICATION AND SERVICES ALONE.
BY DOWNLOADING, ACCESSING OR USING MEDLERT, INC.'S (MEDLERT) (AND/OR ITS AFFILIATES' AND AGENTS') MOBILE APPLICATION, WEBSITE, AND RELATED SERVICES AND MATERIALS IN ANY WAY (EACH A SERVICE AND COLLECTIVELY, THE SERVICES), CLICKING ON THE I ACCEPT BUTTON, OR COMPLETING THE REGISTRATION PROCESS, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH THE MEDLERT, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE APPLICABLE INDIVIDUAL USER YOU IDENTIFY, AND TO BIND YOURSELF AND/OR THAT INDIVIDUAL, AS APPLICABLE, TO THESE TERMS. THE TERM YOU REFERS TO THE INDIVIDUAL IDENTIFIED AS THE USER WHEN YOU REGISTER OR THE INDIVIDUAL THAT DESIRES TO ACCESS OR USE THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE INITIAL TERM), THEN THESE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT MEDLERT'S THEN CURRENT FEE FOR SUCH SERVICES UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 9 BELOW.
1. Use of the Services and Application. The Application, its source code, and all other information and content contained within or available on our Application or Website or through the Services (collectively, the Medlert Materials) are protected by copyright laws throughout the world. Subject to these Terms, Medlert grants you a limited license to use the Medlert Materials for the sole purpose of using the Services for your personal or non-commercial purposes.
1.1 Application License. Subject to your compliance with these Terms, Medlert grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Medlert's software application for mobile devices (the Application) on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal use in connection with the Services. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an App Store Sourced Application), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple's proprietary operating system) and (ii) as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
1.2 Updates. You understand that the Application, Website, Services, or other Medlert Materials are evolving. As a result, Medlert may require you to accept updates. You acknowledge and agree that Medlert may update the Application, Website, Services, or other Medlert Materials with or without notifying you. You may need to update third party software from time to time in order to use and receive the Application, Website, Services, or other Medlert Materials.
1.3 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or the Application or any portion of the Medlert Materials, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Medlert Materials (including images, text, page layout or form); (c) you shall not use any metatags or other hidden text using Medlert's name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Medlert Materials except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to scrape or download data from any web pages contained in the Website; (f) access the Medlert Materials in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Medlert Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Medlert Materials. Any future release, update or other addition to the Medlert Materials shall be subject to these Terms. Medlert, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Application, the Website, or the Services terminates the licenses granted by Medlert pursuant to the Terms.
1.4 Third Party Materials. As a part of the Medlert Materials, you may have access to materials that are hosted by another party. You agree that it is impossible for Medlert to monitor such materials and that you access these materials at your own risk.
2.1 Registering your Account. In order to access certain features related to the Services and Application you may be required to become a Registered User. For purposes of these Terms, a Registered User is a User who has registered an account with Medlert (Account).
2.2 Registration Data. In registering, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the registration form (the Registration Data); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Application, Website, Services, or other Medlert Materials by minors or otherwise. If you provide any information that is untrue, inaccurate, not current or incomplete, or Medlert has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Medlert has the right to suspend or terminate your Account and refuse any and all current or future use of the Medlert Materials and/or the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. Medlert reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party's rights. You agree not to create an Account or use the Application, Website, Services, or other Medlert Materials if you have been previously removed by Medlert, or if you have been previously banned from the Services.
2.3 Activities Under your Account. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (1) notify Medlert immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session.
2.4 Necessary Equipment, Software, and Connectivity. You must provide all equipment and software necessary to connect to and receive the Services, including but not limited to, a mobile device that is suitable to connect with and use the Application, Website, and Services. You are solely responsible for any fees, including telecommunication, Internet connection or mobile fees, that you incur when accessing or using the Application, Website, and the Services. Our Services may utilize the Global Positioning System ("GPS") device on your mobile device and rely on your telecommunication service provider (e.g., AT&T, Verizon, T-Mobile, Sprint, and others) and local emergency services. I f your applicable mobile device does not have coverage, network capacity, and reception, or such connection is congested, jammed, or otherwise unavailable, our Services may not work properly. Additionally, local emergency response services may not be available or accessible in all areas or at certain times. ACCORDINGLY, YOU SHOULD NOT SOLELY RELY ON MEDLERT MATERIALS OR SERVICES. PLEASE BE AWARE THAT NOT ALL OF OUR SERVICES ARE AVAILABLE ALL THE TIME OR EVERYWHERE.Ê The area that you are located may affect the Services.
3. Responsibility for Content.
3.1 Types of Content. You acknowledge that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Application, Website, Services, or other Medlert Materials, whether publicly posted or privately transmitted(collectively Content), are the sole responsibility of the party from whom such Content originated. This means that you, and not Medlert, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (Make Available) through the Services or the Application (Your Content), and other Users of the Services, and not Medlert, are similarly responsible for all Content they Make Available (Other User Content).
3.2 No Obligation to Pre-Screen Content. You acknowledge that Medlert has no obligation to pre-screen Content (including, but not limited to, Your Content and Other User Content), although Medlert reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation email, text, or voice communications. In the event that Medlert pre-screens, refuses or removes any Content, you acknowledge that Medlert will do so for Medlert's benefit, not yours. Without limiting the foregoing, Medlert shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
3.3 Storage. Unless expressly agreed to by Medlert in writing elsewhere, Medlert has no obligation to store any of Your Content that you Make Available. Medlert has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services.
4.1 Medlert Materials. Except with respect to Your Content and Other User Content, you agree that Medlert and its suppliers own all rights, title and interest in the Application, Website, Services, and other Medlert Materials. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Application, Website, Services, or other Medlert Materials.
4.2 Trademarks. Medlert's stylized name and other related graphics, logos, service marks and trade names used in the Medlert Materials or in connection with the Services are the trademarks of Medlert and may not be used without permission in connection with any third party products or services. Other trademarks, service marks and trade names that may appear on the Medlert Materials or in connection with the Services are the property of their respective owners.
4.3 Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Application, Website, Services, or other Medlert Materials.
4.4 Your Content. Medlert does not claim ownership of Your Content. However, You grant Medlert a license and right to use Your Content in connection with the Services.
4.5 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Medlert.
4.6 Your Profile. Any Content posted by you in your profile may not contain offensive subject matter. You may not post or submit for print services a photograph of another person without that person's permission.
4.7 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Medlert through its suggestion, feedback, wiki, forum or similar pages (Feedback) is at your own risk and that Medlert has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Medlert a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Application, the Website and the Services.
5. User Conduct.
5.1 Prohibited Activities. You agree that you will not (and will not permit any third party to), under any circumstances (except to the extent expressly authorized by these Terms): (a) Initiate or declare a false emergency or hoax or illegally make contact with any emergency service center for non-emergency situations; (b) Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; (c) Make Available any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities; (d) Harm minors in any way; (e) Make available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as personal health information); (f) Make Available any Content that infringes the rights of any person or entity, including without limitation, any privacy, patent, trademark, trade secret, copyright, publicity or other proprietary or contractual rights; (g) Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court; (h) Register for more than one Account or register for an Account on behalf of an individual other than yourself (unless expressly authorized by such person); (i) Stalk or otherwise harass any other user of our Application, Website, Services or other Medlert Materials; or (j) Reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of the Application, Website, Services (including your Account), or other Medlert Materials, or access to or use of the Application, Website, Services or other Medlert Materials; (k) Initiate, upload, post, e-mail, transmit or otherwise initiate or make available any illegal or erroneous communications, including without limitation erroneous emergency calls, unsolicited or unauthorized communications or advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation; (l) Use the Application, Services, or other Medlert Materials or any part thereof for any commercial purpose, including, but not limited to communicating or facilitating any commercial advertisement or solicitation; (m) Engage in any chain letters, contests, junk email, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise); or (n) Market any goods or services for any business purposes.
5.2 Unauthorized Use or Access. You agree that you will not (and will not permit any third party to), under any circumstances: (a) Interfere or attempt to interfere with the proper functioning of the Application, Website, Services or other Medlert Materials or connect to or use the Application, Website, Services or Medlert Materials in any way not expressly permitted by the Terms; (b) Systematically retrieve data or other content from our Application, Website, Services or other Medlert Materials to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise; (c) Use, display, mirror or frame the Application, Website, Services or other Medlert Materials, or any individual element thereof, Medlert's name, any Medlert trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Medlert's express written consent; (d) Use any unauthorized software that accesses, intercepts, mines or otherwise collects information from or through the Application, Website, Services or other Medlert Materials or that is in transit from or to the Application, Website, Services, or other Medlert Materials; (e) Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a server or the Services, whether through the use of a network analyzer, packet sniffer or other device; (f) Make any automated use of the Application, Website, Services, or other Medlert Materials, or take any action that imposes or may impose (in Medlert's sole discretion) an unreasonable or disproportionately large load on the infrastructure for the Website, Application, Services or other Medlert Materials; (g) Bypass any robot exclusion headers or other measures Medlert takes to restrict access to the Website, Services or other Medlert Materials or use any software, technology or device to send content or messages, scrape, spider or crawl the Website, Services or Medlert Materials or harvest or manipulate data; (h) Use, facilitate, create, or maintain any unauthorized connection to the Application, Website, Services or other Medlert Materials, including, but not limited to: (a) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Application, Website, Services or Medlert Materials; or (b) any connection using programs, tools or software not expressly approved by Medlert; (i) Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Application, Website, Services or other Medlert Materials, or to obtain any information from the Application, Website, Services or other Medlert Materials; (j) Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content; (k) Upload, post, e-mail, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (l) Solicit or attempt to solicit personal information from other users of the Application, Website, Services or other Medlert Materials; (m) Use our Application, Website, Services or other Medlert Materials to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers; (n) Forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting, or in any way use the Application, Website, Services or other Medlert Materials to send altered, deceptive, or false source-identifying information; or (o) Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including, but not limited to, clear GIFs, 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as spyware, passive collection mechanisms or pcms).
6. Investigations. Although Medlert does not generally monitor user activity occurring in connection with the Application, Website, Services, other Medlert Materials, or Content, if Medlert becomes aware of any possible violations by you of any provision of the Terms, Medlert reserves the right to investigate such violations, and Medlert may, at its sole discretion, immediately terminate your license to use the Application, Website, Services, or other Medlert Materials, or change, alter or remove Your Content, in whole or in part, without prior notice to you or anyone else.
7.1 General. You are solely responsible for your interactions with others with whom you seek to communicate or interact through the Services (e.g., the caregivers, family members, and friends you want contacted if you initiate an emergency call using the Services). Medlert cannot guarantee that they will receive or respond to any communication. Medlert does verify delivery or seek any acknowledgement of receipt of any communication. Medlert does not verify any contact information for accuracy.
7.2 Content Provided by Others. The Application, Website, Services, and Medlert Materials may contain Other User Content provided by other Users. Medlert is not responsible for and does not control Other User Content. Medlert has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to Other User Content. You use all Other User Content and interact with other Users at your own risk. Your interactions and communications with other Users are solely between you and the other User and we are under no obligation to become involved. You agree that Medlert will not be responsible for any liability incurred in connection with your interactions or communications with these other Users, including any delay, inaccuracy, omission, or failure relating to such interactions and communications.
7.3 Release. If you have a dispute with one or more Users, caregivers, family members, friends, health care providers, or any emergency response provider or entity, you release Medlert and its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the Medlert Parties) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code 1542, which says: A general release does not extend to claims which the creditor does not now or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. If you are a resident of another state with a similar law, you hereby make a similar waiver.
8. Third Party Services.
8.1 Third-Party Websites & Ads. The Application, Website, Services, and other Medlert Materials may contain links to third-party websites (Third Party Websites) and advertisements for third parties (collectively, Third Party Websites & Ads). When you click on a link to a Third Party Website or Ad, we will not warn you that you have left our Website and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third Party Websites are not under the control of Medlert. Medlert is not responsible for any Third Party Websites & Ads. Medlert provides these Third Party Websites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Websites & Ads, or their products or services. You use all links in Third Party Websites & Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8.2 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from which you received the Application license, e.g., the Apple iPhone or Android app stores (App Store). You acknowledge that these Terms are between you and Medlert and not with the App Store. Medlert, not the App Store, is solely responsible for the Application, Website, and Services, and the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g. product liability, legal compliance, or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Application or Services. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the App Store's terms and policies) when using the Application and the Services. You acknowledge that the App Store (and its subsidiaries) are third party beneficiaries of these Terms and will have the right to enforce them.
9. Fees and Purchase Terms.
9.1 Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. You must provide Medlert with valid credit card (Visa, MasterCard, or any other issuer accepted by us), PayPal account, or other acceptable third party payment account (e.g., via the Apple Store) (Payment Provider), or purchase order information as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card or account, and you must refer to that agreement and not this Agreement to determine your rights and liabilities. By providing Medlert with your credit card number or Payment Provider account and associated payment information, you agree that Medlert is authorized to immediately invoice your Account for all fees and charges due and payable to Medlert hereunder and that no additional notice or consent is required. You agree to immediately notify Medlert of any change in your billing address or the credit card or Payment Provider account used for payment hereunder. Medlert reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Website or by e-mail delivery to you.
9.2 Service Subscription Fees. You will be responsible for payment of the applicable fee for any Services (each, a Service Subscription Fee) at the time you create your Account and select your annual package (each, a Service Commencement Date). Except as set forth in these Terms, all fees for the Services are non-refundable. No contract will exist between you and Medlert for the Services until Medlert accepts your order by a confirmatory e-mail, SNS/MMS message, or other appropriate means of communication.
9.3 Taxes. Medlert's fees are net of any applicable Sales Tax. If any Services, or payments for any goods or services, under this Agreement are subject to Sales Tax in any jurisdiction, Customer will be responsible for payment of such Sales Tax, and any related penalties or interest and will indemnify Medlert for any liability or expense Medlert may incur in connection with such Sales Taxes. For purposes of this Agreement, Sales Tax shall mean any sales or use tax, and any other tax measured by sales proceeds, that Medlert is permitted to pass to Customer that is (a) the functional equivalent of a sales tax and (b) the applicable taxiing jurisdiction does not otherwise impose a sales or use tax. Medlert may automatically charge and withhold such taxes for orders to be delivered to addresses within any jurisdictions that it deems is required.
9.4 Automatic Renewal. Your subscription will continue indefinitely until terminated in accordance with the terms of this Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a Renewal Commencement Date) and continue for an additional equivalent period, at Medlert's then current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at any time prior to the Renewal Commencement Date pursuant to Medlert's then current policies and functionality. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize Medlert to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Medlert does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that Medlert may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received.)
9.5 Free Trials and Other Promotions. Any free trial or other promotion that provides Registered User level access to the Services must be used within the specified time of the trial. You must cancel your subscription before the end of the trial period in order to avoid being charged a subscription fee. If you cancel prior to the end of the trial period and are inadvertently charged for a subscription, please contact Medlert to have the charges reversed.
9.6 Disputes. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: Medlert Billing Disputes, 4 Embarcadero, Suite 730, San Francisco 94111.
9.7 Ambulatory/Responder Fees.Ê You are solely responsible for any fees or costs charged by emergency responders, ambulances, 911 operators, or similar entities in connection with your use of the Application, Website,Ê and Services. 10. Indemnification. You (and your estate and heirs) agree to indemnify and hold Medlert Parties harmless from any losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Application, Website, Services, or other Medlert Materials; (c) your violation of the Terms; (d) your violation of any rights of another party; (e) your violation of any applicable laws, rules or regulations; (f) any claims by your caregivers, family members, friends, or designated contacts relating to the performance or non-performance of the Application, Website, Services, or other Medlert Materials; (g) personal injury or death arising from the performance or non-performance of the Application, Website, Services, or other Medlert Materials; (h) any claims by emergency responders, 911 operators, or similar entities as a result of any improper or erroneous use of the Application, Website, Services, or other Medlert Materials. Medlert reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Medlert in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account or the Services.
11. Disclaimer of Warranties.
11.1 AS IS. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE APPLICATION, WEBSITE, SERVICES, AND OTHER MEDLERT MATERIALS IS AT YOUR SOLE RISK, AND THE APPLICATION, WEBSITE, SERVICES, AND OTHER MEDLERT MATERIALS ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS, WITH ALL FAULTS. MEDLERT PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. (a) THE MEDLERT PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE APPLICATION, WEBSITE, SERVICES, OR OTHER MEDLERT MATERIALS WILL MEET YOUR REQUIREMENTS; (2) THE APPLICATION, WEBSITE, SERVICES, OR OTHER MEDLERT MATERIALS WILL BE AVAILABLE, UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE APPLICATION, WEBSITE, SERVICES, OR OTHER MEDLERT MATERIALS WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE APPLICATION, WEBSITE, SERVICES, OR OTHER MEDLERT MATERIALS WILL BE CORRECTED. (b) ANY CONTENT OR MEDLERT MATERIALS DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE APPLICATION, WEBSITE, OR SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. (c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. MEDLERT MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES. (d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MEDLERT OR THROUGH THE WEBSITE OR THE MEDLERT MATERIALS WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. (e) FROM TIME TO TIME, MEDLERT MAY OFFER NEW BETA FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT MEDLERT'S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
11.2 NO LIABILITY FOR CONDUCT OF THIRD PARTIES. YOU ACKNOWLEDGE AND AGREE THAT THE MEDLERT PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE MEDLERT PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING BUT NOT LIMITED TO EMERGENCY OPERATORS AND RESPONDERS, CAREGIVERS AND HEALTH CARE PROVIDERS, TELECOMMUNICATION CARRIERS, OR OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
11.3 NO LIABILITY FOR COMMUNICATIONS WITH THIRD PARTIES. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHERS, INCLUDING WITHOUT LIMITATION THOSE YOU INSTRUCT MEDLERT TO CONTACT AS PART OF THE SERVICES. YOU UNDERSTAND THAT MEDLERT DOES NOT MAKE ANY ATTEMPT TO VERIFY (I) THE ACCURACY OF ANY CONTENT OR INFORMATION RELATING TO THE SERVICES, INCLUDING WITHOUT LIMITATION EMAIL, TELEPHONE, AND OTHER CONTACT INFORMATION, OR (II) THE RECEIPT OF ANY MESSAGE TO ANY THIRD PARTY YOU DESIGNATE.
12. Limitation of Liability.
12.1 DISCLAIMER OF CERTAIN DAMAGES. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL MEDLERT PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE APPLICATION, THE WEBSITE, THE SERVICES, THE MEDLERT MATERIALS OR ANY CONTENT, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT MEDLERT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHERS, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE APPLICATION, WEBSITE, SERVICES, OR OTHER MEDLERT MATERIALS; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY; OR (5) ANY OTHER MATTER RELATED TO THE APPLICATION, WEBSITE, OR SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
12.2 CAP ON LIABILITY. UNDER NO CIRCUMSTANCES WILL THE MEDLERT PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR MORE THAN THE AMOUNT RECEIVED BY MEDLERT AS A RESULT OF YOUR USE OF THE APPLICATION, THE WEBSITE, AND THE SERVICES IN THE SUBSCRIPTION PERIOD DURING WHICH YOU FIRST ASSERT CLAIM. IF YOU HAVE NOT PAID MEDLERT ANY AMOUNTS IN THE SUBSCRIPTION PERIOD DURING WHICH YOU FIRST ASSERT ANY SUCH CLAIM, MEDLERT'S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED FIFTY DOLLARS ($50 USD). 12.3 OTHER USER CONTENT. THE MEDLERT PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND OTHER USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS. 12.4 BASIS OF THE BARGAIN. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MEDLERT AND YOU.
13. Term and Termination.
13.1 Term. These Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Application, Website, or Services, unless terminated earlier in accordance with these Terms. 13.2 Prior Use. Notwithstanding the foregoing, if you used the Application, Website, or Services prior to the date you accepted these Terms, you hereby acknowledge and agree that these Terms commenced on the date you first used the Application, Website, or Services (whichever is earlier) and will remain in full force and effect while you use the Application, Website, or Services, unless earlier terminated in accordance with these terms.
13.3 Termination of Services by Medlert. You will have thirty (30) days from the Service Commencement Date, or any Renewal Commencement Date, for any Services hereunder to cancel such Service, in which case the Medlert will refund your Service Subscription Fee, if already paid pursuant to Section 9.2 or 9.4, for the applicable Service. Except as set forth above, the Service Subscription Fee for any Service shall be non-refundable. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of this Agreement, or if the Medlert is required to do so by law (e.g., where the provision of the Application, Website, or Services is, or becomes, unlawful), Medlert has the right to suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Medlert's sole discretion and that Medlert shall not be liable to you or any third party for any termination of your Account.
13.4 Termination of Services by You. If you want to terminate any Services provided by Medlert, you may do so by (a) notifying Medlert at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Medlert's address set forth below or on the Website.
13.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Medlert will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of these Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
14.1 Violations. If Medlert becomes aware of any possible violations by you of the Terms, Medlert reserves the right to investigate such violations. If, as a result of the investigation, Medlert believes that criminal activity has occurred, Medlert reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Medlert is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Application, Website, or Services, including Your Content, in Medlert's possession in connection with your use of the Application, Website, or Services, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms; (3) respond to any claims that Your Content violates the rights of third parties; (4) respond to your requests for customer service; or (5) protect the rights, property or personal safety of Medlert, its Users or the public, and all enforcement or other government officials, as Medlert in its sole discretion believes to be necessary or appropriate.
14.2 Breach. In the event that Medlert determines, in its sole discretion, that you have breached any portion of these Terms, or have otherwise demonstrated conduct inappropriate for the Application, Website, or Services, Medlert reserves the right to: (a) Warn you via e-mail (to any e-mail address you have provided to Medlert) that you have violated these Terms; (b) Delete any of Your Content provided by you or your agent(s) to the Application, Website, or Services; (c) Discontinue your registration(s); (d) Discontinue your subscription; (e) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or (f) Pursue any other action which Medlert deems to be appropriate.
14.3 No Subsequent Registration. If your registration(s) with or ability to access the Application, Website, or Services, or any other Medlert Materials is discontinued by Medlert due to your violation of any portion of these Terms or for conduct otherwise inappropriate, then you agree that you shall not attempt to re-register, and you acknowledge that you will not be entitled to receive a refund for fees. In the event that you violate the immediately preceding sentence, Medlert reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
15. International Users. This Application and Website can be accessed from countries around the world, but our Services are only intended for use in the United States. The Application, Website and Services are controlled and offered by Medlert from its facilities in the United States of America. Medlert makes no representations that the Application, Website or the Services are appropriate or available for use in other countries. Those who access or use the Application, Website or Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
16. General Provisions.
16.1 Electronic Communications. The communications between you and Medlert use electronic means, whether you visit the Website or send Medlert e-mails, or whether Medlert posts notices on the Website or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Medlert in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Medlert provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
16.2 Release. You hereby release the Medlert Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Application, Website, Services, or other Medlert Materials or any reliance or interactions with or conduct of third parties in connection with the Application, Website, Services, or other Medlert Materials. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
16.3 Assignment. These Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Medlert's prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
16.4 Force Majeure. Medlert shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials, telecommunications, or utilities.
16.5 Dispute Resolution. If you believe that Medlert has not adhered to these Terms, please contact Medlert by emailing us at . We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
16.6 Choice of Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflict of laws principles that require the application of the law of a different state. You hereby expressly consent to the personal jurisdiction and venue in the state and federal courts for the county in which Medlert's principal place of business is located for any lawsuit filed against you by Medlert arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
16.7 Limitations Period. YOU AND MEDLERT AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS, THE WEBSITE, THE SERVICES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
16.8 Arbitration. (a) Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (ADR Provider) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with this Agreement. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (2) all arbitration proceedings shall be held in English; (3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, Medlert may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from California law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that re applicable to your use of the Website and the Services. (b) Any other Dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by arbitration in accordance with the JAMS Commercial Arbitration Rules (the Rules) and shall be administered by the San Francisco, California office of JAMS (the Administrator). To the extent there is any conflict between the provisions set forth in this section and any procedural or other rules issued by the Administrator, this section will control. The location of the arbitration will be San Francisco, California, USA. The Dispute(s) shall be submitted to a single arbitrator (Arbitrator) chosen by the parties or selected by the parties from a list of potential arbitrators provided by the Administrator. The Administrator shall provide such list to the parties 10 days after request by either party. Should the parties be unable to agree on a choice of arbitrator within 10 days after receipt of the list from the Administrator, then the Administrator will select the Arbitrator. The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. Each party shall bear its own attorney's fees, costs, and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Administrator and the Arbitrator; provided, however, the Arbitrator shall be authorized to determine whether a party is the prevailing party, and if so, to award to that prevailing party reimbursement for its reasonable attorneys' fees, costs and disbursements (including, for example, expert witness fees and expenses, photocopy charges, travel expenses, etc.), and/or the fees and costs of the Administrator and the Arbitrator. The Arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The Arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 12 of this Agreement. Judgment on the award of the Arbitrators may be entered by any court of competent jurisdiction. The Arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of this Agreement, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States Federal law. (c) By using the Application, Website, Services in any manner, you agree to the above arbitration provision. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and Medlert (except for matters that may be taken to small-claims court). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
16.9 Choice of Language. It is the express wish of the parties that these Terms and all related documents have been drawn up in English. C'est law volone expresse des parties que la presente convention ainsi que les documents qui s'y rattacent soient rediges en anglais.
16.10 Notice. Where Medlert requires that you provide an e-mail address, you are responsible for providing Medlert with your most current e-mail address. In the event that the last e-mail address you provided to Medlert is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by these Terms, Medlert's dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Medlert at the following address: . Such notice shall be deemed given when received by Medlert by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
16.11 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
16.12 Severability. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
16.13 Export Control. You may not use, export, import, or transfer the Medlert Materials except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Medlert Materials, and any other applicable laws. In particular, but without limitation, the Medlert Materials may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the Medlert Materials, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist supporting country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Medlert Materials for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Medlert are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Medlert products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
16.14 Consumer Complaints. In accordance with California Civil Code ¤1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
16.15 Entire Agreement. These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.