TERMS & CONDITIONS

Terms of Service
Effective March 7, 2019
A. About Us:
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Welcome to mdhealthtrak.com (the “Website”). Rhythm Medical LLC (“Rhythm Medical”, the “Company”, “us”,
“we”, or “our”), a Delaware Limited Liability Company, provides an online service for assistance with preparation
for a doctor’s visit, communications, access to medical health information for Doctors, health care professionals, and
their authorized agents, collectively, (“Providers”) and individuals or their authorized agents, (“Patients”). We do
this through the services offered on the Website, through the mobile application and by the products and services
otherwise offered by us (together with the Website, Content (defined below), and all of the products and services
offered by us, our “Services”). By accessing or using our Services, you end-user of our Services (Patients as well as
Providers, collectively “User”, “you”, or “your”), expressly agree to be bound to and to abide by these Terms of
Service (“Terms”), our Privacy Policy, the policies in our HIPAA Notice and any other policy we may develop from
time to time (collectively, “Policies”), which create legal and enforceable agreements whether or not you register for
a user account (a “Profile”) with us, or whether or not you obtain, transmit, post, send, receive, link, email, upload,
download, submit or otherwise communicate (“Post”): an text, images, video, audio, graphics, links, electronic
messages, or any other input and data (collectively, “Content”) using our Services to us or other Users. If you do not
agree to be bound to or to abide by these Terms of Service and our other Policies, do not browse our Website or use
our Services.
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BY ACCESSING OUR SERVICES, YOU (ON BEHALF OF YOURSELF OR PARTY THAT YOU
REPRESENT) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND
CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT
YOU REPRESENT) AND ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO
BE BOUND BY ALL OF THE PROVISIONS, CONDITIONS, AND NOTICES CONTAINED IN THESE
TERMS JUST AS IF YOU HAD SIGNED THESE TERMS.
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these terms contain a dispute resolution and arbitration provision, including a class action waiver that affects your
rights under these terms and with respect to disputes you may have with us.
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B. Terms of Service:
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1. Service Conditions. You cannot use the Services unless you are at least 18 years of age. By using or accessing the
Services, you represent and warrant to us that: (a) you are at least 18 years of age; (b) you have the right, authority,
and capacity to agree to, and abide by these Terms; and (c) you shall not use the Services or any rights granted
hereunder for any unlawful purpose or any purpose which violates these Terms.
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2. Duration of License to Access Services. These Terms provide you with a personal, revocable, non-exclusive,
non-assignable, non-transferable, limited and temporary license to access and use the Services. We shall be entitled
to terminate, restrict, or suspend this license granted to you with immediate effect and without notice, including but
not limited to by deleting your Profile or otherwise restricting your ability to access or use the Services, for any
reason or no reason, as determined by us.
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3. Profiles.
To Use certain aspects of our Services, you must create a Profile. If you choose to create a Profile with us, then you
agree to provide true, accurate, current and complete information as prompted by our registration form, and to
maintain and promptly update the information you provide to us in order to keep such information true, accurate,
current and complete. It is your obligation to maintain and control passwords to your Profile. YOU AGREE THAT
YOU ARE SOLELY AND FULLY RESPONSIBLE FOR ANY ACTIVITIES OR ACTIONS TAKEN UNDER
YOUR PROFILE, WHETHER OR NOT YOU HAVE AUTHORIZED SUCH ACTIVITIES OR ACTIONS. You
agree to immediately notify us of any unauthorized uses of your username and password and/or any other breaches
of security. There is no assumption by us of your responsibility to notify your local law enforcement agency of any
identity theft. You agree we will not be liable for any loss or damages caused by your failure to comply with your
security obligations.
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4. Providers
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(a) Compliance with Laws:
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By using the Services, all Providers represent and warrant that they shall: (i) shall comply with all applicable health
code regulations, ethics, and code professional conduct of the applicable jurisdiction in connection with the
provision of health care services (ii) obtain and maintain any and all state, local, and/or other licenses and permits
applicable to the preparation and selling of Items through our Services; (iii) comply with all other applicable laws,
regulations, ordinances in connection with the provision of health care services.
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(b) Insurance:
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The Providers will carry appropriate general liability and malpractice liability insurance.
Providers covenants that throughout the term of this agreement, Provider will maintain: (i) insurance covering the
Provider and the Company for general liability, and professional malpractice liability umbrella insurance with limits
of one million dollars ($1,000,000) or more and cover any other person employed or contracted by Provider to
perform Services in connection with this Agreement. All of such insurance shall be obtained upon such terms and
conditions that the COMPANY may require. We may periodically require Provider to furnish evidence of such
coverage to the COMPANY, and Provider shall notify the COMPANY at once should such coverage no longer be in
place for any reason. Provider acknowledges that Provider’s breach of Provider’s obligation to maintain insurance as
set forth by this Section remains unaffected by Provider’s notification obligations as set forth in the previous
sentence. In the event of such notification, the COMPANY reserves all of its rights under this Agreement, including
but not limited to immediate termination of this Agreement.
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(c) Representations and Warranties
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(i) Provider is duly licensed and registered for their professional practice in the state for which services are provided
to the Patient.
(ii) The provider is under no physical or mental disability that would hinder his performance of the professional
duties to be rendered under this Agreement;
(iii) The provider has conducted his professional activities in accordance with all applicable Federal, state and city
laws and regulations;
(iv) Provider will promptly disclose to the PLLC: (A) the existence and basis of any proceedings against him that are
instituted in any jurisdiction by any plaintiff, governmental agency, health care facility, peer review organization or
professional society which involves an allegation of substandard care or professional misconduct; and (B) any
allegation of substandard care or professional misconduct raised against him by any person or agency during the
term of this Agreement;
(v) Provider possesses knowledge and skill in medicine comparable to other Providers practicing professional
healthcare services in the geographic area that they service.
(vi) If necessary, Provider has current controlled substance registrations issued by the appropriate department of
Health for where they practice or provide healthcare services and the United States Drug Enforcement
Administration, which registrations have not been surrendered, suspended, revoked or restricted in any manner, nor
are there any proceedings pending which could restrict such registrations in any manner.
(vii) The provider will notify the COMPANY immediately if any of the foregoing shall become, in any manner,
untrue.
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(d) Indemnification
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Provider shall indemnify, defend and hold harmless, the COMPANY, its principal(s), shareholders, employees,
agents, and assigns from all losses, costs, damages, expenses, and judgments, whatsoever, including reasonable
attorneys’ fees, arising from any negligent or wrongful acts or omissions of Provider or Provider’s agents or
authorized representatives in connection with Provider’s provision of healthcare services, advice, or handling of PI
data, HIPAA obligations or any breach of any provision of this Agreement, or misrepresentation made in, or in
connection with, this Agreement. Provider’s indemnification obligation shall survive the expiration or termination of
this Agreement for any reason.
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(e) All Providers shall comply with HIPAA and when using the Services provided by our Site, shall comply with the
HIPAA notice incorporated in our Privacy Policy.
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(f) This Agreement may be terminated without prior written notice at any time by the
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5. Patients and their Authorized Representatives.
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(a) Compliance with Laws. By using the Services, all Patients and their Authorized Representatives represent and
warrant that they shall comply with all applicable laws, regulations, ordinances when accessing or using this Site or
our Services.
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(b) Assumption of the Risk YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE
SERVICES. THEREFORE, YOU, ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT, YOUR
PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE,
WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY COMPANY AND ITS AFFILIATES
FROM ANY AND ALL CLAIMS FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH,
EMOTIONAL DISTRESS, OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES,
WHICH MAY RESULT FROM ANY ASPECT OF OUR SERVICES.
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(c) Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL WE BE
LIABLE FOR PERSONAL INJURY RELATED TO OR RESULTING FROM ANY ASPECT OF THE SERVICES,
OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER,
INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, OR ANY
OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO (A) THESE TERMS, (B) ANY ASPECT
OF OUR SERVICES, HOWEVER, CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (BREACH OF
CONTRACT, A BREACH OF WARRANTY, NEGLIGENCE, PRODUCTS LIABILITY, STRICT LIABILITY, OR
OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR
OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN
NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE LESSER OF (A)
ONE HUNDRED TWENTY-FIVE DOLLARS ($125) OR (B) THE FEES PAID BY YOU TO US IN
CONNECTION WITH THE SERVICES OUT OF WHICH THE CLAIMS AROSE. THE FOREGOING
LIMITATIONS WILL APPLY EVEN IF THE ABOVE-STATED REMEDY FAILS OF ITS ESSENTIAL
PURPOSE.
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6. Item Transactions.
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We provide our Services for a fee. Please refer to the appropriate sections of the site for the fee schedule, and billing
detail. We will process any recurring payments for a subscription, or any other fees accrued via our payment
processor. If you have any questions, please send an email to Info@mdhealthtrak.com.
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7. User Interaction between Providers and Patients.
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(a) OUR SERVICES CREATE ONLY A VENUE TO CONNECT USERS. USERS ARE NOT OUR EMPLOYEES,
INDEPENDENT CONTRACTORS, OR AGENTS. WITH THAT IN MIND, YOU UNDERSTAND AND AGREE
THAT WE: (i) do not employ, recommend or endorse any Users and have no control over the acts or omissions of
any other User in any way using or having used the Services, on or off our Website; (ii) are not responsible for any
User’s compliance or non-compliance with applicable laws in connection with any transaction such User may
engage in with another User; (iii) make no representations or warranties about the quality or legality of the services
offered by a User in connection with an Item or about interactions or dealings with other Users; (iv) are not
responsible for the performance or conduct of any User or other third parties in any way using or having used the
Services, on or off the Website; and (v) are under no obligation to become involved in disputes between Users.
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(b) We do not screen Users or conduct any kind of identity or criminal records checks. As such, Users should
exercise caution and perform their own screening before connecting with a User through the Services. We expressly
disclaim, and you expressly release us from, any and all liability whatsoever for any controversies, claims, suits,
injuries, loss, harm and/or damages arising from and/or in any way related to the Services or your interactions or
dealings with other Users, including but not limited to any acts and/or omissions of Users in any way using or
having used the Services, on or off our Website. By using the Services, you acknowledge that you are solely
responsible for such use and the connections you make and that ALL USE OF OUR SERVICES IS AT YOUR SOLE
RISK.
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(c) Although we have no obligation to verify any information provided by a User in connection with our Services,
we reserve the right to do so in our sole discretion. You hereby authorize us to verify the representations and
warranties you make or the other information you provide. IF YOU PLAN TO USE OUR SERVICES AS A
PROVIDER, WE MAY REQUIRE THAT YOU PROVIDE US WITH INFORMATION THAT VERIFIES, TO
OUR SOLE SATISFACTION, YOUR CREDENTIALS OR ANY OTHER INFORMATION WE MAY REQUEST.
You agree to provide us with any and all information and/or verification we may request as we deem appropriate in
our sole discretion. THE USE OF THE SERVICES FOR ANY USER IS ENTIRELY SUBJECT TO OUR
DISCRETION.
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8. Payment.
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You agree to pay us any and all then-current fees applicable to your use of the Services, as determined
by us. The policies and fees that are disclosed to you when you use a feature of our Services for which we charge a
fee are a part of these Terms. Further, you authorize us to charge your chosen payment method (credit card, debit
card, et cetera) in connection with all fees incurred by you in the Services, as determined by us. In connection with
any fees paid by you, you agree: (a) to only provide valid and current payment information; (b) that we may use the
tools, software or services of our Payment Processor to process fees and transactions on our behalf; (c) to promptly
pay all fees and amounts assessed by us upon demand; and (d) to abide by the terms and policies of our Payment
Processor (see bluepay.com for more information). We are not responsible or liable for any activities or conduct of
our Payment Processor, and you agree to hold us harmless, indemnify, defend, and expressly release us, from any
and all liability relating to the conduct of our Payment Processor. All fees shall be paid in US Dollars.
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9. Content.
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By THE COMPANY. All Posts and Content on our Services, or obtained from a Linked Site are provided to you ‘AS
IS’, ‘AS AVAILABLE’ and ‘WITH ALL FAULTS’. The COMPANY provides our Services as a Venue for
informational purposes only and any statements made by us are opinions only. We expressly disclaim all liability
related to the accuracy or reliability of any opinion, advice, or Content on our Services or reliance on any opinion,
advice, or Content on our Services. OUR SERVICES ARE NOT TO BE CONSTRUED AS LEGAL,
EMPLOYMENT, ACCOUNTING, TAX, HEALTH OR OTHER PROFESSIONAL ADVICE. OUR SERVICES
ARE A RESOURCE ONLY. THE COMPANY is not acting in the capacity of a health care professional; we provide
the VENUE for you to connect with PROVIDERS. As such, we expressly disclaim all liability related to the
accuracy or reliability of any opinion, guidance, or Content Transmitted by us or available through our Services or
reliance on any of the aforementioned. We will do our best to provide top-quality services to you. However, the
Content published through the Services may also include inaccuracies or typographical errors. We do not warrant or
represent that the Content available through our Services is complete or up-to-date.
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10. INTENTIONALLY OMITTED
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11. Intellectual Property.
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(a) Trademarks. mdhealthtrak.com and MDHealthtrak app and all other graphics, logos, page headers, button icons,
scripts, service names and other Content that we use, manage or control are trademarks, registered trademarks or
trade dress of ours or our subsidiaries, officers, employees, independent contractors, suppliers, representatives,
advertisers, licensors, licensees, successors, assigns, agents, partners, or other affiliate (collectively “Affiliates”) in
the United States or other countries or both. No one may use these trademarks or trade dress in connection with any
product or service that is not our product or service without our express written permission. All other trademarks that
appear on our Services are the property of their respective owners, who may or may not be affiliated with, connected
to or sponsored by us or any of our Affiliates.
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(b) Copyright. Except in the case of Content under license to us, we claim a copyright, and all copyright protection
afforded, under international, United States and the State of Delaware to all text, graphics, logos, button icons,
images, audio clips, digital downloads, data compilations, software (ours or our software suppliers), and all other
Content on our Services. The compilation of all Content on our Services is our exclusive property, and it is similarly
protected. We also claim a copyright, and all copyright protection afforded, under international, United States and
the laws of the State of Delaware to all material described in the trademarks section above. Your access to all
information and Content located on our Services is strictly permitted through the license granted to you under these
Terms. Except for the license granted in these Terms, all rights, title and interest in Content, in all languages,
formats, and media throughout the world, including all copyrights, are and will continue to be the exclusive property
of ours and other parties. Except as permitted by these Terms, you are prohibited from modifying, copying,
distributing, displaying, publishing, selling, licensing, creating derivative works, or using any Content available on
or through our Services without our prior written permission, or in the case of Content owned by a third party,
without first receiving permission from the owner of that Content. You may not alter or remove any trademark,
copyright or other notice from copies of the Content.
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12. Mobile Devices. If you are accessing the Services via a mobile device or tablet which is owned or controlled by
you (a “Device”) then, subject to your compliance with these Terms and our Policies, the license granted hereunder
allows you to access our Services using your Device. You understand and agree that use of the Services via your
Device may result in data or other charges from your mobile communication service provider and you expressly
release, indemnify, hold harmless, and defend us from any and all liability relating to any such charges and/or your
Device.
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13. Use Restrictions. You may not use or plan, encourage or help others to use our Services for any purpose or in
any manner that is prohibited by these Terms or by applicable law. In using our Services, you agree at all times that
you shall not: (a) infringe on the copyrights or other intellectual property rights of THE COMPANY, a User, or a
third party (b) copy, distribute, or modify any part of our Services without our prior written authorization; (c) Post
inappropriate, inaccurate, false, or misleading Content to our Services; (d) transmit any Content which contains
software viruses, or other harmful computer code, files or programs; (e) Post Content that falsely states,
impersonates or otherwise misrepresents your identity, including but not limited to the use of a pseudonym, or
misrepresenting your current or previous positions and qualifications, or your affiliations with a person or entity, past
or present; (f) make threats or use profanity; (g) harass, stalk or intimidate other Users; (h) manipulate or exclude
identifiers in order to disguise the origin of any Content; (i) disrupt the networks connected to our Services,
including but not limited to by: attempting to probe, scan or test the vulnerability of our Services, attempting to
breach security or authentication measures without proper authorization, or attempting to interfere with our Services
or a User, by means such as overloading, ‘flooding’, ‘mailbombing’ or ‘crashing.’; (j) circumvent, disable or
otherwise interfere with security-related features of our Services or features that prevent or restrict use or copying of
any Content or that enforce limitations on use of our Services; (k) collect Content, personally identifying
information, and/or other information from our Services, or otherwise access our Services, by using any automated
means, including but not limited to, ‘robots’, ‘spiders’, ‘scrapers’ and ‘offline readers’, without our prior written
approval which we may withhold in our discretion; (l) modify, translate, reverse engineer, decompile, disassemble,
create derivative works based on, sublicense, sell, or distribute the Services; (m) rent or lease any rights in the
Services in any form to any third party or make the Services available or accessible to third parties; (n) use any
communications systems provided by our Services to send unsolicited or unauthorized commercial communications,
including but not limited to by email, SMS, MMS, or any other means; (o) remove, alter or obscure any proprietary
notice or identification, including copyright, trademark, patent or other notices displayed on our Services; (p)
mislead or attempt to mislead or defraud or attempt to defraud or conceal any information relating to Content or
other information that you provide to us; (q) link, deep link, ‘frame’ or ‘mirror’ any part of the Services without our
prior consent; or (r) use our Services to violate any applicable laws, rules or regulations, or for any unlawful,
harmful, or inappropriate purpose, or in any manner that breaches these Terms or is otherwise objectionable, as
determined by us in our sole discretion.
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14. Termination, Restriction, and Suspension.
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(a) Termination By You. You may cancel your Profile at any time for any reason or no reason by using your Profile
dashboard or notifying us in writing (email to Info@mdhealthtrak.com is acceptable) or using your Profile
dashboard. Upon cancellation of your Profile, access to certain features of the Services may be restricted.
Termination of your Profile will be effective within a commercially reasonable time after we receive notification of
your desire to cancel and any outstanding fees owned by you are paid to us, as determined by us.
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(b) By us. We retain the right to terminate, restrict, or suspend these Terms, your Profile, and/or your license to
access or use our Services at any time in our absolute and sole discretion, without prior notice, for any reason or no
reason, as determined by us.
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(c) After Termination. Upon termination of these Terms, your Profile, and/or your license to access or use our
Services for any reason, you agree that we may take any measures we deem necessary to prevent you from accessing
our Services, including by blocking your IP address. You agree that after the termination of your access to our
Services, we are not obliged to retain or provide to you any Content or Personal Data (as defined in our Privacy
Policy) which was collected by us, but we may elect to do so in our sole discretion, for a duration determined by us.
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15. DISCLAIMERS.
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(a) IF YOU CHOOSE TO USE OUR SERVICES, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE
AND AGREE THAT THE COMPANY DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND
CHECKS ON ANY USER, INCLUDING, BUT NOT LIMITED TO USERS WHO POST ITEMS BUT MAY
CONDUCT SUCH BACKGROUND CHECKS IN ITS SOLE DISCRETION. OUR SERVICES AND CONTENT
ARE PROVIDED ‘AS IS’, ‘AS AVAILABLE’ AND ‘WITH ALL FAULTS’ WITHOUT WARRANTY OF ANY
KIND, EITHER EXPRESS OR IMPLIED. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS
FROM USE OF, OR INABILITY TO USE, OUR SERVICES, INCLUDING BUT NOT LIMITED TO PHYSICAL
INJURY OR DEATH AS WELL AS DAMAGES TO PERSONAL PROPERTY. WITHOUT LIMITING THE
FOREGOING, WITH RESPECT TO THE WEBSITE, AND/OR THE SERVICES THE COMPANY EXPLICITLY
DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, ACCURACY, SECURITY, FITNESS FOR A
PARTICULAR PURPOSE, QUIET ENJOYMENT, QUIET TITLE, NON-INFRINGEMENT, AND ANY
WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. THE COMPANY MAKES
NO WARRANTY THAT THE WEBSITE, SERVICES, AND/OR CONTENT WILL MEET YOUR NEEDS,
EXPECTATIONS, BE TO YOUR SATISFACTION, OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE,
OR ERROR-FREE, BUG-FREE, OR MALWARE-FREE BASIS. THE COMPANY MAKES NO WARRANTY
REGARDING THE QUALITY OF OUR SERVICES OR CONTENT OR THE ACCURACY, TIMELINESS,
TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE
WEBSITE OR SERVICES.
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(b) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE COMPANY
OR THROUGH THE WEBSITE SERVICES OR CONTENT WILL CREATE ANY WARRANTY NOT
EXPRESSLY MADE HEREIN. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS
AND INTERACTIONS WITH OTHER USERS OF THE WEBSITE OR SERVICES AND WITH OTHER
PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE
WEBSITE OR SERVICES, INCLUDING, BUT NOT LIMITED TO OTHER USERS AND/OR THIRD PARTIES.
YOU UNDERSTAND THAT THE COMPANY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE
STATEMENTS OF USERS OF THE WEBSITE OR SERVICES. THE COMPANY MAKES NO
REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE WEBSITE OR
SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE WEBSITE OR
SERVICES.
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(c) WE MAKE NO REPRESENTATION OR WARRANTY AS TO THE IDENTITY OF A USER. YOU AGREE
TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH
OTHER USERS OF THE WEBSITE, APPLICATION, OR SERVICES AND WITH OTHER PERSONS WITH
WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE WEBSITE OR
SERVICES, INCLUDING, BUT NOT LIMITED TO, USERS AND/OR THIRD PARTIES, PARTICULARLY IF
YOU DECIDE TO MEET OFFLINE OR IN PERSON REGARDLESS OF WHETHER SUCH MEETINGS ARE
FACILITATED BY THE SERVICES. THE COMPANY EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY
ACT OR OMISSION OF ANY USER OR OTHER THIRD PARTIES.
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16. Release and Waiver of Claims. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU
ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT, YOUR PERSONAL
REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, AND
DISCHARGE ALL CLAIMS, ACTIONS, DEMANDS, SUITS, OR PROCEEDINGS (“CLAIMS”) AGAINST US
AND OUR AFFILIATES, INCLUDING ANY AND ALL LIABILITY FOR DAMAGES (ACTUAL AND OR
CONSEQUENTIAL), COSTS AND EXPENSES (INCLUDING LITIGATION COSTS AND ATTORNEYS’ FEES)
OF EVERY KIND AND NATURE ARISING FROM OR IN ANY WAY RELATED TO: (A) THE SERVICES OR
THESE TERMS, (B) AN ITEM, (C) YOUR DEVICE (D) ANY INACCURACY, UNTIMELINESS OR
INCOMPLETENESS OF A USER’S REPRESENTATIONS OR WARRANTIES, AND/OR (E) ANY
INACCURACY, UNTIMELINESS, OR INCOMPLETENESS OF ANY AND ALL INFORMATION AND/OR
CONTENT OBTAINED OR ACCESSED BY OR THROUGH THE SERVICES. FURTHER, IF YOU ARE A
RESIDENT OF THE STATE OF CALIFORNIA, YOU WAIVE YOUR RIGHTS UNDER 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 OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. ” YOU UNDERSTAND THAT ANY FACT
RELATING TO ANY MATTER COVERED BY THESE TERMS MAY BE FOUND TO BE OTHER THAN NOW
BELIEVED TO BE TRUE AND ACCEPT AND ASSUME THE RISK OF SUCH POSSIBLE DIFFERENCES IN
FACT. IN ADDITION, YOU EXPRESSLY WAIVE AND RELINQUISH ANY AND ALL RIGHTS WHICH YOU
MAY HAVE HAD UNDER ANY OTHER STATE OR FEDERAL STATUTE OR COMMON LAW PRINCIPLE
OF SIMILAR EFFECT, TO THE FULLEST EXTENT PERMITTED BY LAW.
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17. Assumption of the Risk. YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE
SERVICES. THEREFORE, YOU, ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT, YOUR
PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE,
WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY COMPANY AND ITS AFFILIATES
FROM ANY AND ALL CLAIMS FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH,
EMOTIONAL DISTRESS, OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES,
WHICH MAY RESULT FROM ANY ASPECT OF OUR SERVICES.
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18. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL WE BE
LIABLE FOR PERSONAL INJURY RELATED TO OR RESULTING FROM ANY ASPECT OF THE SERVICES,
OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER,
INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, OR ANY
OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO (A) THESE TERMS, (B) ANY ASPECT
OF OUR SERVICES, HOWEVER, CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (BREACH OF
CONTRACT, A BREACH OF WARRANTY, NEGLIGENCE, PRODUCTS LIABILITY, STRICT LIABILITY, OR
OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR
OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In
no event shall our total liability to you for all damages exceed the lesser of (a) one hundred twenty-five dollars
($125) or (b) the fees paid by you to us in connection with the services out of which the claims arose. The foregoing
limitations will apply even if the above-stated remedy fails of its essential purpose.
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19. Dispute resolution. (a) in the event that any dispute arises with respect to our services, terms, or any of our
policies, upon our election in our sole discretion, such dispute shall be resolved by binding arbitration in accordance
with the rules of the American arbitration association, in Poquoson, Virginia and at our option, such arbitration shall
be before a single neutral arbitrator selected in our sole and absolute discretion. In the event, we elect not to require
that a dispute arising with respect to our services, terms, or any of our policies be submitted to binding arbitration as
described above, any such dispute shall nevertheless be litigated in the state courts located in Poquoson, Virginia or
in the U. S. District Court for the eastern district of Virginia, as the case may be. You shall be liable for and shall
reimburse us for our expenses and fees, including attorneys’ fees, in the event any arbitration or litigation arises out
of, under, or relating to these terms or any of our policies, or your use of our services. By using our services, you
irrevocably agree and consent to be bound to the personal jurisdiction of and venue selection in the state courts
located in Poquoson, Virginia or in the U. S. District Court for the eastern district of Virginia as the case may be,
whether either arbitration or litigation arises between us and you. YOU AGREE THAT ANY CAUSE OF ACTION
THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN
ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH A CAUSE OF ACTION IS
PERMANENTLY BARRED.
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(b) YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY ON AN INDIVIDUAL BASIS AND
NOT AS A PLAINTIFF OR CLASS USER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR
PROCEEDING. UNLESS WE AGREE OTHERWISE, THE DECISION-MAKER MAY NOT CONSOLIDATE OR
JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER
ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE
DECISION-MAKER MAY AWARD RELIEF ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF
NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIMS. ANY RELIEF AWARDED CANNOT AFFECT
OTHER USERS.
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(c) You agree that irreparable harm to us would occur in the event that any of the provisions of these Terms,
including but not limited to the provisions of Sections 9, 11, and 13 were not performed fully by you or were
otherwise breached by you, and that money damages are an inadequate remedy for breach of the Terms because of
the difficulty of ascertaining and quantifying the amount of damage that will be suffered by us in the event that these
Terms are not performed in accordance with its provisions or is otherwise breached. It is accordingly hereby
acknowledged that, notwithstanding any provision of this Section 19, we shall be entitled to petition the courts
mentioned in Section 19(a) for an injunction or injunctions to restrain, enjoin and prevent a failure to perform these
Terms by you, without posting bond or other security, and to enforce specifically such provisions of these Terms.
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(d) Dispute Resolution Severability. If a court decides that any term or provision relating to our ability to submit any
above-mentioned dispute to arbitration or to the above class action wavier according to this Section 19, the parties
agree to litigate any such dispute according to Section 19(a) above and to replace any other such terms or provisions
of Section 19(a) or Section 19(b) with a term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and this Section 19 shall be enforceable as
so modified. In any event, the remainder of these Terms will continue to apply.
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20. Indemnification. You agree to indemnify, defend, and hold harmless Us and our Affiliates from and against any
and all Claims, losses, expenses, damages, and costs (including, but not limited to, direct, incidental, consequential,
exemplary and indirect damages), and reasonable attorneys’ fees, resulting from or arising out of, under, or relating
to: your use, misuse, or inability to use our Services; any infringement of a third party’s rights; your Device; a
breach of a representation or warranty; Content Posted by you to us or other Users; alterations of, loss of, or
unauthorized access to any information sent or received or not sent or received by you or us; any defamatory,
offensive, fraudulent, or illegal use of our Services by you; any violation of a law or regulation by you relating to the
Services; any accidental or improper disclosure of information; and any violation by you of these Terms or any of
our other Policies.
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21. Survival. Notwithstanding anything herein to the contrary, the provisions of Sections 4 through 11 and 14
through 32 of these Terms, as well as any provision of these Terms which in accordance with its terms is intended to
survive the termination of these Terms, your Profile, or your license to use or access the Services shall survive any
such termination.
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22. Notification. By using the Services, you agree that we may provide you with any notices or other
communications about the Services electronically: (a) via email (in each case to the address that you provide), SMS
message, or telephone call (in each case to the phone number that you provide), or (b) by posting to the Website. For
notices made by email, the date of receipt will be deemed the date on which such notice is transmitted. We will use
best efforts to honor a User’s request to opt-out of promotional messages, but under no circumstances will we be a
liability for Posting any Content to Users.
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23. Severability; No Waiver. The representations and warranties and/or covenants set forth herein are each to be
construed as a separate agreement, independent of any other provisions of these Terms. Further, the invalidity or
unenforceability of any provision, word, phrase, clause, sentence, paragraph or section of these Terms shall in no
way affect the validity or enforceability of any other provision, word, phrase, clause, sentence, paragraph or section
of these Terms, and any such invalid or unenforceable provision that is overbroad shall be deemed narrowed to the
broadest term permitted by applicable law and shall be enforced as narrowed. If one or more of the provisions in
these Terms deemed invalid or unenforceable, then the remaining provisions will continue in full force and effect.
Our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
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24. Privacy Policy. By using our Services, you agree to the provisions of our Privacy Policy, which is hereby
incorporated by reference. You further agree that we may disclose Personal Data (as defined in our Privacy Policy)
according to our Privacy Policy, as determined by us. Please see our Privacy Policy for more information.
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25. Assignment. These Terms and any rights and licenses granted hereunder may not be transferred or assigned by
you, but may be assigned by us as determined by us.
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26. Our Relationship with You. With respect to you, we are an independent contractor only. Nothing in these Terms
shall be deemed or is intended to be deemed, nor shall it cause, you and THE COMPANY to be treated as employeremployee, partners, joint venturers, or otherwise as joint associates for profit, or either you or us to be treated as the agent of the other. Further, Providers are not employees, independent contractors, partners, joint ventures, or any
agent of THE COMPANY of any sort whatsoever.
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27. Third Parties. From time to time, we may engage third parties or Affiliates to assist us in providing certain
aspects of the Services, including but not limited to marketing functions. You agree that we may engage such third
parties in providing Services to you, as determined by us.
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28. Entire Agreement; Modification. These Terms together with our Polices any other document referenced herein
constitutes the entire understanding between us and you with respect to the subject matter hereof. You agree that we
may amend, modify, or alter these Terms and/or our Polices at any time in our sole discretion. We will notify you
about changes to these Terms by placing the updated Terms on the Website. You agree that your use of the Services
after such notification will constitute acceptance by you of such changes to the Terms.
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29. Headings; Interpretation. Section headings in these Terms are for convenience only, and shall not govern the
meaning or interpretation of any provision of these Terms. Further, whenever the context requires, all words,
including but not limited to defined capitalized terms, will include the masculine, feminine, and neuter, and each
word will include the singular form, plural form, and other conjugations of that word.
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30. Governing Law; English Language. You agree that: (a) the Services shall be deemed solely based in Poquoson,
Virginia (where we have our headquarters), and (b) the Services shall be deemed passive which does not give rise to
personal jurisdiction over us, either specific or general, in jurisdictions other than Poquoson, Virginia. These Terms,
our Privacy Policy, and other Policies are governed by the laws of the State of Delaware and of the United States of
America, and without regard to conflicts of law principles. In the event of a conflict between these Terms and a
foreign language version of the Terms, the English language version of these Terms shall govern. All disputes,
claims, and causes of action (and related proceedings) will be communicated in English.
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31. Compliance. You represent and warrant that you shall comply with all applicable laws, statutes, ordinances, and
regulations regarding use of the Services. We merely provide a platform to allow Users to interact with other Users.
Those who access or use the Services do so at their own volition and are entirely responsible for compliance with
applicable law. Your use of our Services is subject to export and re-export control laws and regulations, including the
Export Administration Regulations (“EAR”) maintained by the United States Department of Commerce and
sanctions programs maintained by the Treasury Department’s Office of Foreign Assets Control. You shall not,
directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any
User without obtaining the required authorizations from the appropriate government authorities. You also warrant
that you are not prohibited from receiving US origin products, including services or software.
32. Feedback. We value your comments and opinions. If you have questions, comments or a complaint about these
Terms, you may send a written notice to us at: Info@mdhealthtrak.com mdhealthtrak.com 6 Ferguson St, Poquoson,
VA 23662.
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Thank You.