TERMS AND CONDITIONS OF USE
WELCOME TO THE VERY SPECIAL HEARTS WEBSITE!
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING THIS SITE IN ANY MANNER YOU ARE DEEMED TO HAVE READ, UNDERSTOOD AND AGREED TO EACH OF THE TERMS, CONDITIONS AND NOTICES SET FORTH IN THIS AGREEMENT. IF YOU DO NOT UNDERSTAND OR AGREE TO EACH OF THE TERMS, CONDITIONS AND NOTICES IN THIS AGREEMENT, YOU SHOULD NOT ACCESS OR USE THIS SITE IN ANY MANNER.
This Agreement was last updated on 10/1/2009.
1. Scope of Agreement
This Agreement (the “Agreement”) is between You (“You” and “Your”) and Very Special Hearts, Inc. (“Very Special Hearts”). This Agreement governs Your access to and use of this Website (the “Site”), including without limitation, all Content, Services, software, HTML and other code, and script forming a part of this Site, Your ability to upload and download Your Information to and from the Site, and all goods, services and transactions offered through this Site. In addition, You agree to comply with all additional terms and conditions governing the access to and use of specific areas of this Site which are incorporated into and made a part of this Agreement:
» Please click here to read the Very Special Hearts’ End User License Agreement which is hereby incorporated into and made a part of this Agreement.
2. The Very Special Hearts Site
This Site does not provide medical advice. The Content is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of Your physician or other qualified health provider with any questions You may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something You have read on the Site!
If You think You may have a medical emergency, call Your doctor or 911 immediately. The Site does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Site. Reliance on any information provided by the Site, or employees of Very Special Hearts or third parties who also use the Site is solely at Your own risk.
The Site may contain health- or medical-related materials that are sexually explicit. If You find these materials offensive, You may not want to use our Site.
3. Definitions
(a) Very Special Hearts refers to the legal entity Very Special Hearts LLC, and any and all related entities, officers, employees, affiliates, agents and licensors.
(b) Content refers to, without limitation, text, graphics, photos, illustrations, images, video and music or other audio clips that are transferred to or from or stored on the Product or used in any way in connection with Services.
(c) Electronic Health Data or Health Data refers to, without limitation, digital data that includes Your Information. Electronic Health Data are individualized; that is, each person for whom You choose to maintain Electronic Health Data has distinct Electronic Health Data from each other person. The classification of data as Electronic Health Data for purposes of this Agreement shall bear no relevance as to whether such data is individually identifiable Protected Health Information (“PHI”) pursuant to the Health Information Portability and Accountability Act (“HIPAA”). The HIPAA Notice of Privacy Practices is provided with the Product.
(d) Intellectual Property refers to, without limitation:
(i) all names and marks, including trademarks, service marks, trade names, corporate names, trade dress, slogans, logos and domain names, and registrations and applications for registration thereof including, all registered and unregistered trademarks, trade names, service marks and applications therefor and all goodwill associated therewith;
(ii) all patents, patent applications and inventions, including any provisional, utility, continuation, continuation in part or divisional applications filed in the United States or any other jurisdiction, and all reissues thereof and all reexamination certificates issuing therefrom;
(iii) all ownership rights to any copyrightable works or works in progress, including all related copyright registrations;
(iv) all know-how or other trade secrets, whether or not reduced to practice, whenever and however arising, including ideas, designs, models, industrial designs, concepts, techniques, inventions, discoveries or improvements, information, data, trade secrets or experience, whether patentable or not, including but not limited to, all design or manufacturing techniques, operating instructions, machinery designs, raw materials or product specifications, drawings, and any other technical and commercial information relating to research, design, development, manufacture, assembly, use or sale, confidential information, or proprietary information; all computer and electronic data processing programs and software programs and related documentation; existing research projects; products, processes and computer software presently under development; all product, process and software concepts owned; and all proprietary information, processes, formulae and algorithms used in the ownership, marketing, development, maintenance, support and delivery of such products, processes and software;
(v) all licenses, options to license, agreements, contracts and other contractual rights concerning any such intellectual property; and
(vi) goodwill associated with any of the foregoing.
(e) Plug-In refers to any computer program that interacts with the Software to provide a certain, usually very specific, function "on demand."
(f) Product refers to decorative jewelry made or sold by or on behalf of Very Special Hearts that contains media (such as a USB flash drive) that includes Software to allow You to create, edit, maintain and delete Your Information in Your Electronic Health Data.
(g) Services refers to any or all services offered in conjunction with the Product, including, without limitation, services offered by Very Special Hearts and/or services offered by third parties.
Exemplary Services provided by Very Special Hearts may include, for example, an automated phone-dialing Service, or “Autodialer Service,” through which you can select at least one phone number that Very Special Hearts will attempt to dial at approximately the times you indicate to give a generic message that may act as a reminder to you to do certain things related to your health care such as to take a prescribed dosage of a medication. Such a Service shall NOT replace medical advice or replace Your personal and primary responsibility in planning Your health care scheduling. Rather, such a Service is merely supplemental and provided for Your convenience only. You rely on such a Service at Your sole risk. Very Special Hearts accepts No liability if a message is not delivered to You via the Autodialer Service for any reason, including but not limited to time skew, the inability to complete a call, Your phone being lost or off or malfunctioning, a third party answering Your phone and failing to deliver a message to You, third-party telephone service interruptions, and/or interruptions of any system or Service of Very Special Hearts for any reason. Very Special Hearts further reserves the right, at its sole discretion, to meter the number of times that a Service is provided during any predetermined period of time (e.g., the number of reminders provided within a twenty-four hour period using the Autodialer Service).
Very Special Hearts may also offer an encrypted back-up Service for storing a back-up copy or copies of Your Electronic Health Data in an encrypted format. Very Special Hearts does NOT guarantee that such Electronic Health Data, including any PHI, cannot be de-coded or otherwise deciphered or disclosed, and Very Special Hearts shall bear no liability for any decoding, deciphering or disclosure.
Very Special Hearts may also offer a news-sharing Service. You may use this Service to allow Very Special Hearts to use Your Information to send you specific news and information and advertisements based upon Your Information or You may use this Service to receive only general health news and information and advertising by specifically requesting that Very Special Hearts NOT use Your Information to determine which general health news and information and advertising to provide to You. If You so request, any general health news and information and advertising that You receive that relates to any health condition that You may have is purely coincidental and such coincidence shall not form the basis for any theory of liability against Very Special Hearts.
If You choose to use any Service,You hereby waive any and all HIPAA rights that You may have when You affirmatively decide to communicate any of Your Electronic Health Data and/or PHI through the Service, including for example asking for a reminder with respect to some healthcare event, generally or specifically.
Very Special Hearts may, at its sole discretion, implement protocols that require a confirmation that a communication is intended for the specific recipient; however, under NO circumstances does Very Special Hearts guarantee protection of your Electronic Heath Data and/or PHI from third parties, and refers you generally to its Privacy Policy and its HIPAA Notice of Privacy Practices therein. Very Special Hearts bears no liability for any disclosure of any of Your Electronic Health Data and/or PHI arising out of Your use of any Service provided by Very Special Hearts.
To the extent You elect to contract with third parties for Services, You do so (i) directly with the third party and not through Very Special Hearts (Very Special Hearts may identify third parties to You merely as a convenience for You), and (ii) You do so at Your sole risk. With respect to Your contractual relations with third parties, whether or not Very Special Hearts introduced You to said third parties, Very Special Hearts shall NOT be liable to You or third parties for any reason, including the actions or inactions of You or third parties.
Exemplary Services provided by third parties may include, for example, a nurse advisory service. If You choose to use this or any other Service provided by a third party to whom You were introduced by Very Special Hearts, You hereby waive any and all HIPAA rights that You may have when You affirmatively decide to communicate any of Your Electronic Health Data and/or PHI through the proposed Service. Very Special Hearts does NOT guarantee protection of your Electronic Heath Data and/or PHI from third parties, and refers you generally to its Privacy Policy and its HIPAA Notice of Privacy Practices therein. Very Special Hearts bears no liability for any disclosure of any of Your Electronic Health Data and/or PHI arising out of Your use of any Service provided by Very Special Hearts or any third party.
Very Special Hearts or any third parties providing any Services reserve the right to cancel or suspend any Service at any time with or without notice.
(h) Your Information refers to, without limitation, any public information or confidential information about You or family members for whom You choose to maintain Electronic Health Data. This information may include, without limitation, past, present and/or future identity such as names and social security numbers. This information may also include, but is not limited to past, present and/or future mental and/or physical health information such as drug allergies, current diagnoses and treatments, current prescription and over-the-counter medications and dosages, scheduling information relating to doses of medications, Your insurance policy information, Your physician(s) names and contact information, and whatever additional information that You decide to record using the Software and/or Services. The classification of information as Your Information for purposes of this Agreement shall bear no relevance as to whether such information is PHI pursuant to HIPAA.
4. Use and Protection of Password and ID
(a) Very Special Hearts may assign a password and an account ID to You so You can access and use certain areas of this Site. Each user who uses such password and ID will be deemed to be authorized to access and use this Site and Very Special Hearts has no obligation to investigate the authorization or source of any such access or use. YOU ACKNOWLEDGE AND AGREE THAT YOU WILL BE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THIS SITE BY ANYONE USING THE PASSWORD AND ID ORIGINALLY ISSUED TO YOU WHETHER OR NOT SUCH ACCESS TO AND USE OF THIS SITE IS ACTUALLY AUTHORIZED BY YOU, INCLUDING WITHOUT LIMITATION, ALL UPLOADS, COMMUNICATIONS AND TRANSMISSIONS, AND ALL OBLIGATIONS (INCLUDING WITHOUT LIMITATION FINANCIAL OBLIGATIONS) THAT MAY RESULT FROM SUCH ACCESS OR USE.
(b) You are solely responsible for protecting the security and confidentiality of the password and ID. You shall immediately notify Very Special Hearts of any unauthorized use of the password or ID, or any other breach or threatened breach of this Site’s security.
5. Modification of the Agreement and the Site
Very Special Hearts may modify this Agreement and the Software and the Site (including without limitation adding or discontinuing any or all Services or transactions offered through this Site) at its sole discretion at any time without notice or liability to You. A copy of the most current version of this Agreement, by which You are bound by virtue of Your continued use of the Software and Product and/or Services, will be made available on the Very Special Hearts Site.
6. Licenses
(a) Subject to the terms and conditions of this Agreement, You are granted a limited, revocable, non-exclusive and non-transferable license, without the right to sublicense, to access and use this Site only for displaying this Site on Your Internet browser and uploading, downloading, editing, revising, adding or deleting Your Information in Your Electronic Health Data, and transmitting Your Electronic Health Data between the Site and Your Product, and for accessing and/or using any and all of the Services available to You on the Site, including but not limited to those Services that store, send, encrypt, or otherwise use Your Electronic Health Data.
(b) Except as permitted in the limited license set forth in paragraph (a), above, You shall not copy, reproduce, distribute, display, perform, sell, lease, transmit or create derivative works of Intellectual Property owned by Very Special Hearts or its suppliers or licensors from this Site (in whole or in part) or translate, modify, reverse‑engineer, disassemble, or decompile this Site (in whole or in part).
(c) To the extent that Very Special Hearts grants You the right to use the Site to manipulate Your Information in Your Electronic Health Data:
(i) You grant Very Special Hearts a global, non-exclusive right to use Your Information, including all intellectual property in Your Information, for purposes including but not limited to using, storing and transmitting Your Information in connection with your use of the Product and/or Services.
(ii) You warrant and represent that You own or have the right to license the rights granted above; that You have full power and authority to enter into this Agreement; and that Your Information and Electronic Health Data (a) do not violate or infringe the rights of any persons, including without limitation, rights in copyrights, patents, trademarks, service marks, trade secrets, privacy rights, publicity rights, and other proprietary rights; (b) are not libelous, threatening, defamatory, obscene, indecent, pornographic, or could give rise to any civil or criminal liability under U.S. or international law; and (c) include no harmful code or properties, including but not limited to bugs, viruses, worms, trap doors, or Trojan horses.
(iii) You may only use the Site for Your private, non-commercial use. You may not use the Site in any way to provide, or as part of, any commercial service or application or in connection with rendering professional or administrative services to another person or entity
(iv) Very Special Hearts retains ownership of all data collected or stored by or on behalf of Very Special Hearts during the Term of this Agreement, including transaction data, file-share requests, file transfers, search requests, other shared materials, customer geographic and demographic information.
7. Privacy Policy
(a) This Privacy Policy explains how Very Special Hearts collects, uses and discloses your personal information from your use of the Site. This Privacy Policy also explains the steps Very Special Hearts has taken to protect your personal information. This Privacy Policy additionally explains your choices regarding the online collection, use and disclosure of your personal information.
(b) In some circumstances, Very Special Hearts’ use of your information may also be subject to the requirements of the Health Information Portability and Accountability Act (frequently referred to as “HIPAA”). This may be the case when you submit individually identifiable Protected Health Information ("PHI") to Very Special Hearts in connection with Services provided by Very Special Hearts or third parties including, but not limited to a nurse advisory call service, in which case the terms of the HIPAA Notice of Privacy Practices will apply, which are detailed in the writings accompanying the Product.
(c) Information Collection. Very Special Hearts collects information from you using the Site. Very Special Hearts’ primary goal in collecting personal information is to provide you with an efficient, meaningful and customized experience. For example, Very Special Hearts can use your personal information to:
● make the Site easier for you to use by not requiring you to enter information more than once.
● help you quickly find information and services.
● help Very Special Hearts provide content on the Site that is most relevant to you.
● alert you to updated information and services offered by Very Special Hearts.
(d) Registration. To use certain portions of the Site, you may be required to first complete an online registration form. During any such registration, you will be prompted to provide to Very Special Hearts certain personal information, and possibly credit reference information, including but not limited to your name, address, phone number and e-mail address, and credit card information. In addition, Very Special Hearts may also ask you for detailed residence information so Very Special Hearts can comply with applicable privacy laws and regulations.
Children. Very Special Hearts does not knowingly accept personal information from anyone under the age of 13. Likewise, those under the age of 18 are prohibited from making purchases on the Site.
(f) Cookies and Other Technology. Very Special Hearts may collect site-visitation statistical information through “cookies,” Web beacons and other technology. The Site may employ cookies and other technology to speed your navigation of the Site by allowing the Site to recognize each user and his or her access privileges and to track the user's usage of the Site (“user data”).
(i) "Cookies" are small pieces of information that are stored by a user's Internet browser on a user's computer hard drive. Most Internet browsers are initially set to accept cookies. You can set your browser to refuse cookies, but upon doing so, you most likely will not be able to access or use portions of the Site.
(ii) “Web beacons” help Very Special Hearts determine whether a web page on the Site has been viewed and, if so, how many times.
(g) Log Files. The Site server automatically recognizes the Internet Uniform Resource Locator (“URL”) from which you access the Site. Very Special Hearts may also log your Internet protocol ("IP") address, which may be helpful, for example, for system administration and troubleshooting purposes. (An IP address indicates the location of your computer on the Internet.)
- Information Use and Disclosure.
(i) Internal Use. Very Special Hearts may identify you in connection with your use of certain aspects of the Site. For example, Very Special Hearts may identify you by your viewing history, IP address, profile information, user data, and/or browser type. Very Special Hearts may also request other profile data including but not limited to: geographical information (such as zip code), personal interests, gender, education, occupation and income level. Very Special Hearts may internally use your personal and non-personal information for many purposes, including but not limited to tracking its users’ demographics, to improving Very Special Hearts’ marketing and promotional efforts, to improving the Site’s content and/or layout, and to determining general marketplace information about visitors to this Site.
(ii) External Use. Very Special Hearts may disclose personal information about you to third parties when (1) Very Special Hearts uses such third parties to provide products or services on its behalf; (2) required or permitted by law; (3) Very Special Hearts seeks to protect its legal rights; and (4) in connection with any licensing, sale, merger, transfer or other disposition associated with all or a portion of the business..
(iii). Your Disclosure of Personal Information in Public Areas
Personal information that you disclose in a public area of the Site may be collected and used by third parties or Very Special Hearts. If you do decide to disclose personal information, you do so at your sole risk.
(i) STEPS TAKEN TO PROTECT PERSONAL INFORMATION
(j) DATA SECURITY
This Site incorporates various procedures to safeguard the confidentiality of your personal information, and such procedures may include Secure Sockets Layer ("SSL") encryption for certain pages.
LIMITATIONS ON DATA SECURITY & PRIVACY PROTECTIONS
VERY SPECIAL HEARTS CANNOT GUARANTEE SECURITY. VERY SPECIAL HEARTS ASSUMES NO RESPONSIBILITY OR LIABILITY FOR DISCLOSURE OF YOUR PERSONAL INFORMATION THAT OCCURS BY NEGLIGENCE OF VERY SPECIAL HEARTS, ERRORS IN TRANSMISSION, UNAUTHORIZED OR ILLEGAL ACCESS, OR ANY OTHER VEHICLE FOR DISCLOSURE.
THE SITE MAY CONTAIN LINKS TO OTHER WEBSITES. VERY SPECIAL HEARTS IS NOT RESPONSIBLE FOR THE CONTENT OR PRIVACY POLICIES ON ANY THIRD-PARTY WEBSITES OR PRIVACY PRACTICES BY ANY THIRD PARTIES.
(k) YOUR CHOICES REGARDING INFORMATION COLLECTION AND USE
You can request that Very Special Hearts: (a) remove your personal information from Very Special Hearts database (which might cancel your subscription to the Site or a portion of the Site); or (b) correct or update your personal information. You can request that Very Special Hearts remove, correct or update your personal information at the customer information section of this Site or by contacting Very Special Hearts using the information on the contact page of the Site. Subject to the rules and regulations under which Very Special Hearts must operate as well as the nature of Very Special Hearts’ ongoing relationship with you (e.g., a pending transaction), Very Special Hearts will review your request and use reasonable business judgment with respect to complying.
(l) CHANGES TO THIS PRIVACY POLICY
If Very Special Hearts decides to change this Privacy Policy, Very Special Hearts may do so without notice. Very Special Hearts will post the changed Privacy Policy in this Agreement or on the Site.
(m) Under NO circumstances does Very Special Hearts guarantee protection of your Electronic Heath Data and/or PHI from third parties. For example, and without limitation to the right of Very Special Hearts to disclose such information in other situations, you specifically authorize Very Special Hearts, without prior notice and without incurring any liability to You, to release and/or disclose all or any portion of Your Information in the following exemplary situations:
(i) In connection with judicial process, in response to a subpoena or court order, by Very Special Hearts incident to any litigation against You or Your successors in interest, or in defense of any claim asserted against Very Special Hearts by You or any other person or entity that in any way arises from this Agreement;
(ii) In response to an inquiry by law enforcement in connection with their investigation of criminal activity;
(iii) To Provide Services or to permit third party to provide Services;
(iv) Where the disclosure of Your Information is necessary (as is determined in Very Special Hearts’ sole discretion) to protect You or others, and/or is in the interest of public safety or health; and/or,
(v) For any other reason Very Special Hearts in its sole discretion deems necessary to exercise and/or protect its rights hereunder.
(n) With respect to this Site, Very Special Hearts may disclose Your Information, including any PHI, as described below:
(i) Disclosure to Site Operations and Maintenance Contractors. Very Special Hearts operations and maintenance contractors sometimes have limited access to Your Information in the course of providing products or services. These contractors include vendors and suppliers that provide technology, services, and/or content for the operation and maintenance of the Site. Access to Your Information or Your Electronic Health Data by these contractors is limited to the information reasonably necessary for the contractor to perform its limited function. We also contractually require that our operations and maintenance contractors 1) protect Your privacy, and 2) not use or disclose Your Information or Your Electronic Health Data for any purpose other than providing products and services as required by law.
(ii). Backed-Up and Encrypted Information. If You choose to participate in the optional full service program offered by Very Special Hearts, Your Information stored in Your Electronic Health Data will be backed up and encrypted on a schedule determined solely by Very Special Hearts. Very Special Hearts personnel and contractors cannot access or read backed-up encrypted information, even if You authorize them to do so.
8. Availability and Use of Site
The availability of this Site depends on many factors, including factors that are beyond the Very Special Hearts’ control, such as Your connection to the Internet and the involvement of Internet service providers connecting You with our Site. Very Special Hearts does not warrant that the Site will be available to You at on demand, nor does it warrant that any of its individual services including back-up and encryption will be available to You on demand. Very Special Hearts shall not be liable to You if You cannot use this Site due to any reason.
9. Termination; Effect of Termination
(a) This License Agreement will automatically terminate if You fail to comply with any term hereof. No notice shall be required from Very Special Hearts to effect such termination. You may also terminate this License Agreement at any time by notifying Very Special Hearts in writing of termination.
(b) Upon any termination of this Agreement, You shall immediately cease all access to and use of this Site, both secured and unsecured portions. Very Special Hearts shall, in addition to any other legal or equitable remedies, immediately revoke all password(s) and account ID(s) issued to You. Upon termination, You shall also not use the account ID or password of any third party to access any secured portion of the Site. Any termination of this Agreement shall not affect the respective rights and obligations (including without limitation payment obligations) of the parties arising before the date of termination. The provisions of Sections 14, 15, 18, 19, 21 and 22 shall survive the termination of this Agreement.
10. Intellectual Property
(a) Except for the Intellectual Property that You own, all content that is part of this Site and all Intellectual Property associated therewith, are the sole and exclusive property of Very Special Hearts or third parties. You are not granted any right or license, either express or implied, in any Intellectual Property EXCEPT as explicitly set forth herein in Section Six (6).
(b) Except for the Intellectual Property that You own, You shall not remove any copyright, trademark, or other proprietary legends or notices that appear on, in or as part of this Site. Regarding the Intellectual Property that You own, if You request Very Special Hearts to remove Your Intellectual Property, Very Special Hearts will do so following thirty (30) days written notice to the address identified in Section Eleven (11) or Twenty-Three (23).
11. Notice of and Procedure for Copyright Infringement
(a) Very Special Hearts respects other’s intellectual property and proprietary rights. In accordance with the Digital Millennium Copyright Act, Very Special Hearts has designated a Copyright Agent to receive notice of claims of alleged copyright infringement on the Site. If You believe that Your copyrighted material has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on this Site or on sites linked to or from this Site, please send Very Special Hearts’ Designated Agent a notice containing the following elements:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work(s) that is/are alleged to have been infringed;
- A description of the copyrighted work(s) that You claim is/are infringing and the location where the original or an authorized copy of the copyrighted work(s) exists/exist (for example, the Uniform Resource Link (“URL”) of the Website where the copyrighted work[s] is/are lawfully published; the name, edition and page[s] of a book, etc.);
- A description of where the material that You claim is/are infringing is/are located on this Site, including the URL, so that Very Special Hearts can locate the material;
- Your address, telephone number and e-mail address;
- A statement that You have a good faith belief that the use of the material identified in the notice is not authorized by the copyright owner, its agent, or applicable law; and
- A statement by You, under penalty of perjury, that the above information is accurate and that You are the copyright owner or are authorized to act on behalf of the copyright owner.
(b) Send the notice containing the above information to the following Designated Agent:
Name of Designated Agent: ____________________________
NOTE: THE NOTICE REQUIRED BY THIS SECTION IS EXCLUSIVELY FOR NOTIFYING VERY SPECIAL HEARTS THAT COPYRIGHTED WORK(S) MAY HAVE BEEN INFRINGED. DO NOT SEND ANY NOTICES OR INQUIRIES UNRELATED TO ALLEGED COPYRIGHT INFRINGEMENT TO VERY SPECIAL HEARTS’ DESIGNATED AGENT. SUCH NOTICES OR INQUIRIES SHOULD INSTEAD BE SENT TO THE E-MAIL ADDRESS OR MAILING ADDRESS LISTED BELOW IN THE SECTION TITLED “CONTACT INFORMATION.”
12. Links to Other Internet Sites
This Site may contain links to Internet sites owned, operated or maintained by third parties not under the control of Very Special Hearts. These links are provided for Your convenience only. Such links are not and shall not be deemed to be an endorsement by Very Special Hearts of the organization or individual associated with the linked site. You assume sole responsibility and liability for Your use of such linked sites.
13. Links to this Site
You must obtain Very Special Hearts’ prior written consent before creating any link(s) to this Site except for Your personal use of the Site through Your Internet browser.
14. Warranty Disclaimer; Limitation of Liability
(a) DISCLAIMERS. THE SITE AS WELL AS ALL ASSOCIATED SERVICES AND CONTENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VERY SPECIAL HEARTS FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. VERY SPECIAL HEARTS DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY CONTENT PROVIDED BY OR THROUGH VERY SPECIAL HEARTS OR ANY OF ITS SUPPLIERS AND/OR LICENSORS AND/OR LICENSEES. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE PRODUCT INCLUDING SOFTWARE, DOCUMENTATION AS WELL AS ANY ASSOCIATED SERVICES AND CONTENT REMAINS WITH YOU.
(i) Very Special Hearts DOES NOT WARRANT that Your use of the Site will be uninterrupted or that the operation of the Site will be error-free or secure. Very Special Hearts does not warrant that the Site will be compatible with particular software or hardware. Very Special Hearts does not warrant that Your use of the Product and/or Services will not cause harm to Your computer or any hardware or software thereon.
(ii) Very Special Hearts DOES NOT WARRANT the substance, accuracy, currency, and completeness of Your Information stored in Electronic Health Data in the media provided by Very Special Hearts. You are solely responsible for the accuracy, currency, and completeness of Your Information, including Your Electronic Health Data used or transmitted or stored or encrypted in connection with Your use of this Site, or the Product or Services.
(iii) Mandatory FDA Disclaimer: This Site and Products and Services and statements in the Documentation have not been evaluated by the US Food and Drug Administration. This Site, Products and/or Services are not intended to diagnose, treat, cure or prevent any disease. Those seeking treatment for a specific disease should consult a qualified physician prior to using the Site.
(iv) By using the Site and any related Products or Services or software or websites, You warrant and specifically acknowledge that You are not a health care provider or other person or entity covered by the Federal Health Insurance Portability and Accountability Act of 1996 (or any similar laws or regulations of any jurisdiction).
(v) Very Special Hearts does not provide medical diagnoses, advice or treatment of any kind and specifically DOES NOT WARRANT any medical diagnoses, advice or treatment provided by any Service.
(b) LIMITATIONS ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO LEGAL THEORY AND IN NO EVENT SHALL VERY SPECIAL HEARTS OR ITS SUPPLIERS OR ITS LICENSORS OR ITS LICENSEES BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOOD WILL, COMPUTER FAILURE, OR OTHER PECUNIARY AND/OR COMMERCIAL LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SITE, AS WELL AS ANY ASSOCIATED SERVICES OR THE CONTENT. THIS LIMITATION ON LIABILITY AND DAMAGES INCLUDES ANY ACTION ARISING FROM OR RELATING TO THE CONTENT OF THE INFORMATION ENTERED, STORED, EDITED AND/OR DELETED ON THE SITE, INCLUDING BUT NOT LIMITED TO YOUR INFORMATION. THIS LIMITATION ON LIABILITY AND DAMAGES APPLIES EVEN IF VERY SPECIAL HEARTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VERY SPECIAL HEARTS’ TOTAL LIABLITY FOR ANY DIRECT DAMAGES SHALL NOT EXCEED TWENTY-FIVE DOLLARS ($25.00). IN NO EVENT SHALL VERY SPECIAL HEARTS’ LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT EXCEED TWENTY-FIVE DOLLARS ($25.00). BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, AT LEAST SOME PORTIONS OF THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
(i) Very Special Hearts is not liable for any medical advice, diagnoses or treatment given that in any way refers or relates to Your Health Data, whether or not Your Health Data is accurate or complete. Your disclosure of Your Health Data to others, including medical professionals and medical staff, is solely at Your own risk.
(ii) Very Special Hearts is not liable for any damages resulting from any disclosure of Your Information, whether or not Your Information includes PHI.
(iii) Very Special Hearts is not liable for any damage arising out of or in any way relating to Your use of the Site, Product and/or Services, including any situation where Your use of the Product and/or Service is in any way connected with any negative health result, including death.
(iv) Very Special Hearts is not liable for any damages arising out of or in any way relating to Your contractual relationship with a third party, including any third party to whom You are introduced by Very Special Hearts for any reason, including the provision of Services in connection with the Product via this Site.
15. Indemnity
You agree to indemnify, defend and hold harmless Very Special Hearts, its parent, subsidiaries, affiliates, and their respective officers, directors, shareholders, employees and agents from and against any and all claims, liabilities, expenses (including attorneys' fees) and damages arising out of claims in any way arising from this Agreement, or resulting from Your access or connection to, or use of the Product or Services or media, including without limitation claims arising out of any or all Your Information or Your Electronic Health Data, Your allowing third parties to access, use or modify Your Information, Your commercial use of the Product or Services, Your violation of a third party’s Intellectual Property or other rights, or any claims alleging facts that if true would constitute a breach by You of the terms and conditions of this Agreement, including, but not limited to any and all warranties or representations. Very Special Hearts reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, and in such case, You agree to cooperate with Very Special Hearts in the defense or in asserting counterclaims to any such claims and You shall continue to pay all costs, expenses and attorneys fees following Very Special Hearts’ assumption of control (including, but not limited to the right to select counsel and to make all strategic decisions in any litigation or other proceeding related in any way to the foregoing) until the matter is resolved, as well as any resultant damages. If You are importing the Software from the United States, You shall indemnify and hold Very Special Hearts harmless from and against any import and export duties or other claims arising from such importation.
16. Relationship of Parties
You acknowledge that no joint venture, partnership, employment, or agency relationship exists between You and Very Special Hearts as a result of this Agreement or any use of this Site. You agree not to hold Yourself out as a representative, agent, or employee of Very Special Hearts and Very Special Hearts shall not be liable for any representation, act or omission by You to the contrary.
17. Assignment
Your rights are personal. You shall not assign or otherwise transfer this Agreement or assign, delegate or otherwise transfer any of Your rights, interests or obligations under this Agreement and any such assignment, delegation or other transfer shall be void. This Agreement shall inure to the benefit of Very Special Hearts’ successors, assigns and licensees.
18. Injunctive Relief; Remedies
(a) You agree that the remedy at law to Very Special Hearts for any actual or threatened breach of this Agreement would be inadequate and that Very Special Hearts shall be entitled to specific performance or injunctive relief, or both, in addition to any damages that Very Special Hearts may be legally entitled to recover, together with reasonable expenses of any form of dispute resolution, including attorneys’ fees.
(b) All rights and remedies granted to Very Special Hearts under this Agreement are cumulative and not alternative, and are in addition to all other rights and remedies available to Very Special Hearts at law or in equity.
19. Arbitration & Jurisdiction
You and Very Special Hearts agree that the exclusive remedy for all disputes and claims relating in any way to, or arising out of, this Agreement, the Site or Services, or Your use of the Site or Services shall be final and binding arbitration. The arbitration shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and AAA's Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"). The arbitration shall take place in the State of California. To the fullest extent permitted by law: no arbitration under this License Agreement shall be joined to any other arbitration, including any arbitration involving any other current or former licensee of Very Special Hearts; no class arbitration proceedings shall be permitted; no finding or stipulation of fact in any other arbitration, judicial or similar proceeding may be given preclusive or collateral estoppel effect in any arbitration hereunder (unless determined in another proceeding between You and Very Special Hearts); and no conclusion of law in any other arbitration may be given any weight in any arbitration hereunder (unless determined in another proceeding between You and Very Special Hearts). Your arbitration fees and Your share of arbitrator compensation will be limited to those set forth in the AAA's Consumer Rules with the remainder paid by Very Special Hearts. If such costs are determined to be excessive, Very Special Hearts will pay all arbitration fees and arbitrator compensation. You and Very Special Hearts may litigate in court only to compel arbitration under this Agreement, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award rendered by the arbitrator(s). You and Very Special Hearts hereby consent to the exclusive jurisdiction of the state and federal courts sitting in the State of California to enforce the provisions of this Section and to resolve any disputes and claims cognizable in court relating in any way, or arising out of, this Agreement, the Software or Services or Your use of the Software or Services. The court, not the arbitrator, shall determine arbitrability and enforce the arbitration agreements contained herein, including the prohibition on consolidated arbitrations and class arbitration. This Agreement and all disputes and claims relating in any way to, or arising out of, this Agreement, the Software or Services or Your use of the Software or Services shall be governed by the laws of the State of California and the Federal Arbitration Act.
20. International Access
This Site can be accessed from countries other than the United States. This Site may contain Very Special Hearts products or services, or references to Very Special Hearts products or services that are not available outside of the United States. Any such references do not imply that such Very Special Hearts products or services will be made available outside the United States. If You access and use this Site outside the United States You are responsible for complying with Your local laws and regulations.
21. Complete Agreement
This Agreement shall constitute the complete and exclusive agreement between us, notwithstanding any variance with any purchase order or other written instrument submitted by You, whether formally rejected by Very Special Hearts or not. The acceptance of any purchase order You place is expressly made conditional on Your consent to the terms set forth herein. The terms and conditions contained in this Agreement may not be modified by You except in a writing duly signed by You and an authorized representative of Very Special Hearts. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances.
22. Severability
If any provision of this Agreement is found by any tribunal of competent jurisdiction to be invalid or unenforceable, the invalidity of such provision shall not affect the other provisions of this Agreement, and all provisions not affected by such invalidity shall remain in full force and effect.
23. Contact Information
Please send any questions or comments (including all inquiries unrelated to copyright infringement) regarding this Site by e-mail to contact@averyspecialheart.com or by regular mail to:
Very Special Hearts, LLC.
660 Newport Center Drive, Suite 700
Newport Beach, CA 92660
24. Reservation of Rights
Very Special Hearts reserves to itself any and all rights not expressly granted herein.