MouthWatch.com and “TeleDent” Terms of Service
I. About the Site and/or Services (including TeleDent)
1. The Site and/or Services (including “TeleDent”) are provided through the Site, as well as various MW mobile applications, desktop applications. These various applications provide a telehealth/telemedicine solution that allows participating dental health professionals and dental health care staff (“Dental Providers” or “Providers”) to communicate with their clients and patients (“Patients”) and to electronically provide certain dental health care services online. To the extent the Agreement refers to “you” or “your”, such reference shall be deemed a reference to Patients and Providers.
2. As a result, MW is not a medical nor dental service provider and MW does not render nor provide medical care/services, dental health care/services, or other professional services through the Site and/or Services. Also, you understand that MW is not in the business of health insurance and is not a health insurance company or provider. Furthermore, Providers are paid by Patients (or their insurance providers) for their services and the Providers are not employees, agents, nor representatives of MW. While the Site and/or Services may provide access to certain general medical information and also allow Patients to communicate with Providers, the Site and/or Services cannot and are not intended to provide dental or medical advice.
USE OF MW SERVICES IS NOT APPROPRIATE FOR EMERGENCIES. IF YOU THINK YOU HAVE A MEDICAL OR DENTAL HEALTH EMERGENCY, OR IF AT ANY TIME YOU ARE CONCERNED ABOUT YOUR CARE OR TREATMENT, CALL 911 OR GO TO THE NEAREST OPEN CLINIC OR EMERGENCY ROOM.
MW advises seeking the advice of a dentist or other qualified dental healthcare provider with any questions regarding personal dental health or medical conditions. Never disregard, avoid, or delay in obtaining dental/medical advice from a dentist or other qualified dental healthcare provider because of information obtained from MW on the Site and/or Services. If you have or suspect that you have a dental health problem or condition, please contact a qualified dental healthcare professional immediately. THE CONTENT ON THE SITE AND/OR SERVICES IS NOT AND SHOULD NOT BE CONSIDERED DENTAL/MEDICAL ADVICE OR A SUBSTITUTE FOR INDIVIDUAL DENTAL/MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. YOU SHOULD ALWAYS TALK TO YOUR DENTAL HEALTH CARE PROVIDERS FOR DIAGNOSIS AND TREATMENT, INCLUDING INFORMATION REGARDING WHICH DRUGS, THERAPY, OR OTHER TREATMENT MAY BE APPROPRIATE FOR YOU. NONE OF THE INFORMATION ON THE SITE AND/OR SERVICES REPRESENTS OR WARRANTS THAT ANY PARTICULAR PROCEDURE, DRUG, THERAPY OR OTHER TREATMENT IS SAFE, APPROPRIATE, OR EFFECTIVE FOR YOU. FURTHER, A DENTAL HEALTH CARE PROVIDER’S ABILITY TO USE THE SITE AND/OR SERVICES IS NOT AN ENDORSEMENT OR RECOMMENDATION OF THAT DENTAL HEALTH CARE PROVIDER BY MW.
II. The Relationship between Patients and Providers
1. Any and all persons who use the Site and/or Services are bound by this Agreement and you understand that even if you are a Provider, this Agreement applies to you as well. In order to participate in the Site and/or Service as a Provider, you will be obligated to review and accept the MOUTHWATCH LLC MASTER SUBSCRIPTION AGREEMENT (the “Provider Agreement”). To the extent there are any conflicts between terms and conditions of this Agreement specifically as they pertain to any Providers, and the Provider Agreement, the terms and conditions of the Provider Agreement shall control.
2. To the extent dental advice is provided to a Patient by a Provider through the Site and/or Services, such dental advice is based on your personal dental health data as provided by a Patient to the Provider and the local standards of care. The dental advice provided by any Provider is not under the control of MW.
3. If you are a Provider, you accept responsibility for your Patients as well as yourself in the use of the Site and/or Services. Providers are also responsible for the quality of the services they provide during your use of the Site and/or Services and for complying with all applicable laws in connection with their use of the Site and/or Services. Without limitation, Providers are responsible for obtaining any and all Federal, State and local licenses and certifications which may be required to practice any dental profession when using the Site and/or Services and maintaining malpractice and liability insurance in compliance with regulatory and local requirements. Providers are also responsible for obtaining Patient consent if required by law and complying with any and all privacy laws applicable to the use of the Site and/or Services with their Patients, including the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). MW has established reasonable safeguards and procedures to protect the security of Patient information, but Providers must also take steps to protect their privacy and confidentiality that of their Patients. Providers may also be asked to enter a HIPAA business associate agreement with MW.
4. If you are a Patient, you accept responsibility for yourself in the use of the Site and/or Services. You acknowledge that your relationship for dental health care services is with your Provider, and your obtaining services from the Provider is solely at your own risk and you assume full responsibility for all risk associated therewith, to the extent permitted by law. You understand that Providers are neither employees nor agents nor representatives of MW and that any medical advice obtained through the Site and/or Services are not provided by MW, but by your Provider. Under no circumstances will MW be liable for any loss or damage caused by your reliance on any information, opinion, advice, or statement available on or through the Site and/or Services. By using the Service, you agree to not hold MW liable in any way for any malpractice or substandard treatment the Provider may render.
5. MW does not confirm the credentials of Providers using our Services and do not validate that they are in good standing with their respective licensure board(s). It is the Patient’s responsibility to separately confirm that a Provider is in good standing with his or her respective licensing board(s). MW does not and cannot provide any guarantee regarding the qualifications, licensure, expertise, experience, training, or general history and background of any Provider.
6. You are solely responsible for all Submissions from your account. “Submissions” means anything that a user transmits to the Site and/or Services or to another in the course of using the Site and/or Services. You shall remain at all times solely responsible for the full functionality, accuracy, reliability, integrity, quality or validity of any statement, data, facts, information, or any other detail contained in the Submissions.
III. Conditions of Telehealth/TeleMedicine
1. You understand that MW provides telehealth/telemedicine services, by which the primary means of contact between Patient and Provider is audio and video, and the Provider and Patient are physically in different locations. During your telehealth/telemedicine session, information about your health and/or personal health information may be disclosed. You understand that while you may receive the intended benefit of engaging in telehealth with the Provider, results are not guaranteed. While telehealth/telemedicine intends to mimic the relationship between in-person counseling, it is not the same, and therefore you should evaluate whether telehealth/telemedicine is right for you prior to engaging with a Provider.
IT IS THE OBLIGATION OF THE PROVIDERS TO USE AND DISCLOSE ANY OF YOUR INFORMATION IN ACCORDANCE WITH APPLICABLE STATE AND FEDERAL LAWS, INCLUDING, WITHOUT LIMITATION, OBTAINING ANY CONSENTS OR AUTHORIZATIONS THAT MAY BE REQUIRED FOR YOUR INFORMATION TO BE SHARED WITH THIRD PARTIES.
2. Generally, a licensed dental professional practitioner, provider, or office who provides services via telehealth/telemedicine (collectively, the “Provider”) is subject to the requirements and definitions set forth in the laws, rules, or regulations adopted by the state and applicable medical and/or dentistry boards (collectively, the “Laws”). “Telehealth/telemedicine” is the mode of delivering health care services and public health via information and communication technologies to facilitate the diagnosis, consultation, treatment, education, care management and self-management of a patient’s health care while the patient is at the originating site and the health care provider is at a distant site. Telehealth/telemedicine includes synchronous interactions and asynchronous store-and-forward transfers. “Asynchronous store and forward” means the transmission of a patient’s information from an originating site to the health care provider at a distant site without the presence of the patient. Generally speaking, most states require that prior to the delivery of health care via Telehealth/telemedicine, a health care provider at the originating site must inform the patient that telehealth/telemedicine may be used and obtain verbal and/or written consent from the patient for this use (collectively, “Consent Instruments”). Generally, under the Laws of a particular state, it is a sanctionable offense for the applicable health care provider not to properly acquire such consent.
3. You understand that MW is not the Provider and rather is a provider of software and technology services to such Providers. As a result, any rights, duties, and obligations arising under any applicable Consent Instruments are strictly between yourself and the Providers, including any Consent Instruments you may electronically and/or digitally sign or execute using any Services, which establishes a legal relationship between you and the applicable Providers.
IV. You are responsible for reviewing changes to this Agreement
1. This Agreement applies to all users of the Site and/or Services, including Patients and Providers.
2. This Agreement supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Site and/or Services, the content, products or services provided by or through the Site and/or Services, and the subject matter of this Agreement, EXCEPT THAT to the extent there are any conflicts between terms and conditions of this Agreement specifically as they pertain to any Providers, and the Provider Agreement, the terms and conditions of the Provider Agreement shall control.
3. MW may make changes to this Agreement from time to time without specifically notifying you.
4. MW will post the latest Agreement on the Site or within its various applications facilitating the Services, but it is up to you to review it before using the Site and/or Services.
5. If you continue to use the Site and/or Services after any of these changes, your continued use will mean that you have accepted any changes to the Agreement.
6. In addition, some services offered through the Site and/or Services may be subject to additional terms and conditions specified by MW from time to time and your use of such services is subject to those additional terms and conditions, which are incorporated into this Agreement by this reference.
V. MW may edit or modify anything on the Site and/or Services without notice
MW is committed to delivering a positive user experience and you understand that MW reserves the right (but without undertaking any duty) to edit, monitor, review, delete, modify, or move any content or material provided or placed on or though the Site and/or Services in its sole discretion, without notice and without undertaking any duty to do so.
VI. You are responsible for accepting updated versions of the Site and/or Services
1. If MW provides updated versions of the Site and/or Services and you do not accept these updated versions, you may not enjoy the most recent content, feature sets, and materials.
2. If you do not accept updated versions of the Site and/or Services, MW shall not bear any responsibility or liability for your decision.
VII. What Laws and Rules You Are Responsible for Following
1. By using the Site and/or Services as a Patient, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a “Minor”), that you are using the Site and/or Services with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the Site and/or Services and agree to this Agreement. If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to this Agreement and to fully indemnify and hold harmless MW if the Minor breaches any of this Agreement. If you are not at least 13 years old, you may not use the Site and/or Services as a Patient at any time or in any manner or submit any information to the MW or the Site. If you are a Provider you must be eligible to use the Site and/or Services pursuant to the terms and conditions contained int eh Provider Agreement.
2. You promise not to use the Site and/or Services for any purpose that is prohibited by this Agreement.
4. You are responsible for all of your activity in connection with the Site and/or Services.
3. You understand that you will be fully responsible for all activities that occur under your account, user name and/or password.
4. You agree not to allow someone who is not you to use your account, username or password at any time.
5. You agree to immediately notify Company of any unauthorized use of your password or your user name.
6. We strongly encourage you to change your password at least once a month and you understand that MW will not be liable for any loss that you incur as a result of someone else using your account or your password.
VIII. It is your responsibility to make sure this Agreement and your use of the Site and/or Services complies with all laws applicable to you
1. You understand MW may, in its sole discretion, refuse to offer the Site and/or Services to any person or entity and change its eligibility criteria at any time and that MW reserves the right (without undertaking any duty) to use “geo-filtering” or other technologies to block access to certain jurisdictions, in its sole discretion, without notice.
2. You are solely responsible for ensuring that this Agreement complies with all laws, rules and regulations applicable to you.
3. You understand that your right to access the Site and/or Services will be revoked where this Agreement or use of the Site and/or Services is prohibited and, if that is the case, you agree not to use or access the Site and/or Services in any way.
IX. MW may terminate your use of the Site and/or Services without reason or notice to you
While MW respects its users, you agree that MW may terminate your membership or use of the Site and/or Services and prohibit you from accessing the Site and/or Services, for any reason, or no reason, and with or without notice.
X. You agree to comply with MW’s conduct policies when using the Site and/or Services
We do our best to keep the Site and/or Services safe and operational, but we cannot guarantee it. We need your help to do that, which includes the following commitments:
1. You will not modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, republish, repurpose, sell, trade, or in any way exploit the Site and/or Services except as expressly authorized by MW;
2. You will not take any action that imposes or may impose (as determined by MW in its sole discretion) an unreasonable or disproportionately large load on MW’s (or its third party providers’) infrastructure;
3. You will not decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services, except to the limited extent applicable laws specifically prohibit such restriction;
4. You will not interfere or attempt to interfere with the proper working of the Site and/or Services or any activities conducted on the Site and/or Services;
5. You will not bypass any measures MW may use to prevent or restrict access to the Site and/or Services (or other accounts, computer systems or networks connected to the Site and/or Services);
6. You will not run any form of auto-responder or “spam” on the Site and/or Services;
7. You will not use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site and/or Services;
8. You will not harvest or scrape any content or materials from the Site and/or Services;
9. You will not copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder;
10. You will not threaten, intimidate or harass another user, Patient, or any Provider;
11. You will not solicit passwords or personally identifying information (this includes, but is not limited to, someone else’s name, birthdate, home address, IP address, social security number, or credit card number) for commercial or unlawful purposes;
12. You will not upload, post, transmit, share, store 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;
13. You will not upload, post, transmit, share, store or otherwise make available any content (such as a picture on a profile page) other than those of a personal nature that: (i) are of you (ii) are taken by you or your friends, or (iii) are original content created by you;
14. You will not knowingly transmit false or misleading information through the Site and/or Services.
15. You will not use the Site and/or Services in any manner or transmit any Submission that: infringes (or results in the infringement of) MW’s or any third party’s intellectual property or other rights; is (or you reasonably believe to be) illegal, fraudulent, or unauthorized, or in furtherance of any illegal, counterfeiting, fraudulent, pirating, unauthorized, or violent activity, or that involves (or you reasonably believe to involve) any stolen, illegal, counterfeit, fraudulent, pirated, or unauthorized material; does not comply with all applicable laws, rules, or regulations, including obtaining all necessary permits, licenses, registrations, etc. In the case of any proposed or actual transaction, “applicable” refers to both your own location and to location(s) of all other parties to the transaction; or would cause MW to be in violation of any law or regulation, or to infringe any right of any third party.
16. You will not publish falsehoods or misrepresentations that may damage MW or any third party.
17. You will not transmit any Submission and will not use the Site and/or Services to post, store, transmit, offer, or solicit anything that contains the following, or that you know contains links to the following or to locations that in turn contain links to the following: material that we determine to be offensive (including material promoting or glorifying hate, violence, bigotry, or any entity (past or present) principally dedicated to such causes, or items associated with such an entity); material that is racially or ethnically insensitive, material that is defamatory, harassing or threatening; pornography (including any obscene material, and anything depicting children in sexually suggestive situations whether or not depicting actual children) or may be harmful to a minor; any virus, worm, Trojan horse, or other harmful or disruptive component; or anything that encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or regulation or is otherwise inappropriate.
18. You will not use the Site and/or Services to post, store, or transmit advertising, promotional material, or solicitations of goods or services, except in areas of the Site and/or Services designated for the purpose.
19. You will not otherwise take any action in violation of MW’s guidelines and policies.
XI. MW is not responsible for what happens outside of the Site and/or Services, including third party websites that the Site and/or Services may link to or advertise on behalf of
1. MW or its business partners may present advertisements or promotional materials via the Site and/or Services.
2. Your dealings with, or participation in promotions of any third-party advertisers via the Site and/or Service are solely between you and such third party and your participation is subject to the terms and conditions associated with that advertisement or promotion.
3. You agree that MW is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties via the Services.
4. You understand the Site and/or Services may contain (or you may receive from MW, third parties or users) links to other web sites (“Third Party Sites”) or content posted, owned or originating from third parties such as, by way of example only, pictures, designs, photographs, graphics, text, sound, recipes, video, information, software, applications and any other content (“Third Party Content”).
5. You understand and agree that MW is not responsible for, and does not control, Third Party Sites and Third Party Content. You also understand and agree that MW is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such Third Party Sites and Third Party Content.
6. You acknowledge and agree that MW shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such content, goods or services available on or through any such Third Party Site or Third Party Content.
XII. Who Owns What and How You Can Use It
1. The content, organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to the Site and/or Services (“Copyright Content”) are the property of MW or may be, to a certain extent, the property of its content suppliers, including but not limited to Providers, and are protected under applicable copyright law, trademark law and other proprietary rights.
2. You may not copy, redistribute, use or publish any part of the Site and/or Services, except as allowed by this Agreement.
3. You do not acquire ownership rights to any content, document or other materials viewed through the Site and/or Services.
XIII. You may not use trademarks appearing on the Site and/or Services in an infringing manner
1. You agree that MOUTHWATCH, MOUTHWATCH.COM, TELEDENT, TELEDENT.COM and MW graphics, logos, page headers, button icons, scripts, and service names are trademarks, registered trademarks or trade dress of MW or its affiliates (“Trademark Content”).
2. MW trademarks and trade dress may not be used in connection with any product or service that is not MW’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits MW.
3. All other trademarks not owned by MW or its affiliates that may appear on this Site and/or Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by MW or its affiliates.
XIV. Unless you are a Provider and have registered with MW as a Provider and Accepted this Agreement And Conditions of the Provider Agreement, You may use the MW Site and/or Services for limited, noncommercial purposes
1. Unless you are a Provider and have registered with MW as a Provider and accepted MW’s Provider Terms and Conditions, MW grants you a limited license to access and make personal use of the Site and/or Services.
2. MW does not grant you the right to download (other than page caching) or modify the Site and/or Services, or any portion of the Site and/or Services.
3. You understand MW does not grant you the right to resell or make commercial use (except as provided herein or in the applicable Provider Terms and Conditions) of the Site and/or Services or their contents; make any derivative use of the Site and/or Services or their contents; any downloading or copying of account information for the benefit of a third party, or merchant; or any use of data mining, robots, or similar data gathering and extraction tools.
4. You understand the Site and/or Services or any portion of Site and/or Services may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose.
5. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information of MW and our affiliates without express written consent.
6. You may not use any meta tags or any other “hidden text” utilizing MW’s name or trademarks without the express written consent of MW. Any unauthorized use terminates the permission or license granted by MW.
7. You may not engage in the copying, reproduction, publication, rearrangement, redistribution, modification, revision, alteration, or reverse engineering, of the Services.
8. You are granted a limited, revocable, and nonexclusive right to create a hyperlink, or at the Company’s sole discretion other items such as widgets, buttons, or other web page elements to the home page of MW so long as the link does not portray MW, its affiliates, or their products or services in a false, misleading, derogatory, or otherwise offensive matter.
9. You may not use any MW logo or other proprietary graphic or trademark as part of the link without express written permission.
XV. You have the necessary rights to share content and materials should you choose to
1. You understand that you may be invited to participate in blogs, online forums, promotions, surveys and other such items and that, accordingly, we may provide you with the opportunity, to create, submit, post, transmit or distribute content and materials to us via the Site, such as text, drawings, icons, photos, etc. (collectively, “User Content”).
2. You warrant that either: (a) your User Content is wholly original to you and you exclusively own the rights to your User Content, including the right to grant all of the rights and licenses in this Agreement; or (b) all parties whose materials are included in your User Content, or who contributed in any way, are depicted in, or have any rights to your User Content, have granted you permission to submit and license your User Content to MW as set forth herein, with full knowledge that MW may exploit it in any manner whatsoever. You make such warranties without MW incurring any third party obligations or liability arising out of its exercise of the rights thereto granted herein by you.
3. You grant to MW the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual and royalty-free right and license to host, use, copy, distribute, reproduce, disclose, sell, re-sell, sub-license, display, perform, transmit, publish, broadcast, modify, make derivative works from, re-title, reformat, translate, archive, store, cache or otherwise exploit in any manner whatsoever, all or any portion of your User Content, for any purpose whatsoever, in any and all formats; on or through any and all media, software, formula or medium now known or hereafter known; and with any technology or devices now known or hereafter developed and to advertise, market and promote same.
4. You further agree that MW is free to use any ideas, concepts, know-how or techniques contained in any User Content you send to the Site or MW, for any purposes whatsoever, including, without limitation, developing, producing, marketing and otherwise exploiting products and/or services using such User Content; and without remuneration of any kind.
5. You further perpetually and irrevocably grant MW the unconditional right to use and exploit your name, persona and likeness included in any User Content.
6. You also grant to MW the right to sub-license and authorize others to exercise any of the rights granted to MW.
7. You authorize MW to publish your User Content in a searchable format that may be accessed by users of the Site and the Internet, and you waive any rights of attribution and/or any so-called moral rights you may have in any User Content you submit, even if such User Content is altered or changed in a manner not agreeable to you.
If you send or transmit any communications, comments, questions, suggestions, or related materials to MW, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Site and/or Services, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and MW is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that MW is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
XVII. Copyright Policy
1. MW takes the intellectual property of others seriously.
2. You understand that MW at its sole discretion, may terminate the account or access of users who infringe the intellectual property rights of others.
3. If you believe that your work has been copied in a manner that results in copyright infringement, please contact MW’s Copyright Agent. Our designated agent for notice of alleged copyright infringement on the Site and/or Services is:
MW – Copyright Department
By Email: [email protected]
XVIII. Additional Terms for Mobile Applications
1. MW may make available mobile applications to access the Site via a mobile device (“Mobile Applications”). To use the Mobile Application you must have a mobile device that is compatible with the mobile service. MW does not warrant that the Mobile Application will be compatible with your mobile device. MW hereby grants to you a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for one registered account on one mobile device owned or leased solely by you, for your personal use.
2. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application. You acknowledge that MW may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that this Agreement will apply to all such upgrades. The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and MW and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to your use of the Mobile Application.
3. The following additional terms and conditions apply with respect to any Mobile Application that MW provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):
- You acknowledge that this Agreement is between you and MW only, and not with Apple, Inc. (“Apple”).
- Your use of MW’s iOS App must comply with Apple’s then-current App Store Terms of Service.
- MW, and not Apple, are solely responsible for our iOS App and the Services and Content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.
- You agree that MW, and not Apple, are responsible for addressing any claims by you or any third-party relating to our iOS App or your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by this Agreement and any law applicable to us as provider of the iOS App.
- You agree that MW, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
- 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 agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
- The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to this Agreement as they relate to your license of MW’s iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
4. The following additional terms and conditions apply with respect to any Mobile Application that MW provides to you designed for use on an Android-powered mobile device (an “Android App”):
- You acknowledge that this Agreement is between you and MW only, and not with Google, Inc. (“Google”).
- Your use of MW’s Android App must comply with Google’s then-current Android Market Terms of Service.
- Google is only a provider of the Android Market where you obtained the Android App. MW, and not Google, are solely responsible for MW’s Android App and the Services and Content available thereon. Google has no obligation or liability to you with respect to MW’s Android App or these Terms.
- You acknowledge and agree that Google is a third-party beneficiary to this Agreement as they relate to MW’s Android App.
XIX. Legal Conditions and MW’s liability is Limited
1. MW is not responsible for any Third Party Sites, Third Party Content, or any other content posted on the Site and/or Services, whether caused by users of the Site and/or Services, MW, third parties or by any of the equipment or programming associated with or utilized in the Site and/or Services.
2. MW is not responsible for the conduct, whether online or offline, of any user of the Site and/or Services or any user, Patient, or Provider.
3. MW assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of Patient communications or Provider communications.
4. MW is not responsible for any problems or technical malfunction of any telephone network or lines, cellular data provider or network, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Site and/or Services, including injury or damage to users or to any other person’s computer, and/or mobile device.
5. Neither MW nor any of its affiliates, advertisers, promoters or distribution partners shall be responsible for any loss or damage, including personal injury or death, resulting from anyone’s use of the Site and/or Services, any content posted on the Site and/or Services or transmitted to users, or any interactions between users of the Site and/or Services and between users of the Site and/or Services and Providers, whether online or offline.
XX. General Disclaimer and Limitation of Liability
WE TRY TO KEEP THE SITE AND/OR SERVICES UP, BUG-FREE AND SAFE, BUT YOU USE THEM AT YOUR OWN RISK. THE INFORMATION FROM OR THROUGH THE SITE AND/OR SERVICES IS PROVIDED “AS IS,” “AS AVAILABLE,” AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED. THE INFORMATION, SITE AND/OR SERVICES MAY CONTAIN VIRUSES, BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. IN NO EVENT WILL MW OR ITS DIRECTORS, EMPLOYEES OR AGENTS HAVE ANY LIABILITY WHATSOEVER FOR YOUR USE OF ANY INFORMATION OR SERVICE, OR THE SITE. WE ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US THROUGH THE SITE/SERVICE SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
MW’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US FOR THE SERVICE AND USE OF THE SITE, BUT IN NO CASE WILL OUR LIABILITY TO YOU EXCEED $50. YOU ACKNOWLEDGE THAT IF NO FEES ARE PAID TO US FOR THE SITE AND/OR SERVICES, YOU SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM US, REGARDLESS OF THE CAUSE OF ACTION.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, IN PART: “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.”
XXI. You agree to indemnify MW
You agree to indemnify, defend, and hold harmless MW, its contractors, licensors, subsidiaries and affiliates and their respective partners, directors, officers, employees and agents from and against any and all claims and expenses, including any and all losses, costs, liabilities, and attorneys’ fees, arising out of or in connection with: (1) your use of the Site and/or Services, (2) any user Content, Third Party Content, Third Party Sites and any other content, (3) your violation of this Agreement, or of any law or the rights of any third party, and (4) your breach of this Agreement and/or any breach of your representations and warranties set forth herein.
XXII. You agree that New York law applies to this Agreement
Subject to the arbitration clauses included below, if there is any dispute arising out of the Site and/or Services, by using the Site and/or Services, you expressly agree that any such dispute shall be governed by the laws of the State of New York, without regard to its conflict of law provisions, and you expressly agree and consent to the exclusive jurisdiction and venue of the state and federal courts of the State of New York, in New York County, for the resolution of any such dispute.
XXIII. Your general representation and warranty
2. You represent and warrant that you will use the Site and/or Services so not to infringe or misappropriate the intellectual property rights of any third party.
XXIV. Other Terms
1. You and MW agree that any cause of action arising out of or related to the Site and/or Services must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
2. You agree that, except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by arbitrators appointed in accordance with such rules.
3. You agree any arbitration shall take place in New York County in the State of New York in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys’ fees.
4. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect.
5. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
6. MW may assign its rights under this Agreement without condition.
7. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.