PLEASE READ THESE TERMS CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF OUR SERVICES. THESE TERMS REQUIRE YOU ARBITRATE ANY DISPUTES YOU HAVE WITH US AND YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN A CLASS ACTION FORMAT.
1. ACCESSING OUR SERVICES
In order to help safeguard the information stored and shared on the Key Health Portal, each user is required to be authenticated by various means (“Credentials”), including the use of unique identifiers, API keys, and passwords. In order to obtain Credentials, you must provide certain information about yourself. If you are registering for our Services, or accessing or using, or attempting to access or use, our Services on behalf of, or for the benefit of, someone other than yourself – such as your employer, client or charge (each, a “Principal”) – you must also identify and provide information about each Principal.
If you sign up for our Services, you may be asked to agree to the Key Health User Agreement (“User Agreement”). In such cases, you will be asked to expressly consent to the User Agreement by checking a box or clicking on a button with terms such as “I agree” or similar terms of acceptance. In the event of a conflict between the terms of the User Agreement and these Terms, the terms of the User Agreement shall control.
Your Credentials are unique to you and/or the entity you are employed or associated. You should immediately notify Key Health if your Credentials have been stolen, compromised, or you no longer are legally entitled to access information from the Key Health Portal. You are responsible for all activities that occur under your Credentials until you or the entity you are employed or associated have properly notified us that your Credentials have been stolen, compromised or you no longer are legally entitled to access information from the Key Health Portal (see Key Health User Portal Agreement). Further, you represent, warrant and covenant the following:
- All information submitted in obtaining your Credentials is complete and accurate and identifies you and/or the name of the entity you are affiliated with and/or the name of each of your Principals;
- you will not share your Credentials with anyone else;
- you will not circumvent, or attempt to circumvent, any technical measures that we have put in place to safeguard our Services;
- you will not, without our prior written approval, access or use, or attempt to access or use, any portion of our Services other than with: (i) a commercial browser, and (ii) our application programming interface (“API”) using Credentials issued to you directly by Key Health; and
- you will not access or use, or attempt to access or use, our Services without validly-issued and active Credentials. Key Health reserves the right to suspend or terminate your access to our Service at any time, with or without cause or notice. We shall not be liable to you in any way if we suspend or terminate your access to our Services.
Service Content, Ownership, Limited License and Rights of Others
- Content. The Services contain a variety of: (i) materials and other items relating to Key Health, and its products and services, and similar items from our licensors and other third parties, including all layout, information, articles, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material (including source and object code); (ii) trademarks, trade dress, logos, trade names, service marks, and/or trade identities of various parties, including those of Key Health (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”).
- Ownership. The Services (including past, present, and future versions) and the Content are owned or controlled by Key Health, our licensors and/or certain other third parties. All right, title, and interest in and to the Content available via the Services is the property of Key Health or our licensors or certain other third parties, and is protected by U.S. copyright, trademark, trade dress, patent, and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. Key Health owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Services.
- Limited License. Subject to your strict compliance with these Terms and any Additional Terms, Key Health grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download (temporary storage only), display, view, use, play, and/or print one copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your personal, non-commercial use only. The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in Key Health’s sole discretion, and without advance notice or liability.
- Rights of Others. When using the Services, you must respect the intellectual property and other rights of Key Health and others. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. If you believe that your work has been infringed by means of an improper posting or distribution of it via the Services, then please see Section 3.4 below.
To further protect the confidentiality, integrity and availability of the information housed and shared on our Services, as well as, the stability of our Services, therefore without limiting the generality of the foregoing, you agree not to do or attempt any of the following:
- access, use or disseminate our Services, nor any information or files accessible via our Services, in a manner that violates any applicable law or regulation or the rights of any individual or entity;
- sell or transfer any information included in our Services or use such information to market any product or service – including by sending, or facilitating the sending of, unsolicited emails or SPAM;
- probe, scan or test the vulnerability of our Services, or of the system or network supporting our Services, or circumvent any security or authentication measures;
- disable, bypass, defeat, avoid, remove, deactivate or otherwise circumvent any technical measures we have implemented to safeguard the stability of our Services, or the confidentiality, integrity or availability of any information, content or data hosted or housed on our servers;
- introduce to our Services any software, code or other device that in any way: (i) permits unauthorized access to our systems or any software, hardware, files or data located thereon, (ii) disables or damages or otherwise interferes with or adversely affects the operation of our systems or any software, hardware, files or data located thereon, or (iii) overburdens or interferes with the proper functioning of our Services;
- disassemble, decompile or reverse engineer our Services;
- harvest, retrieve, index or publish any portion of our Services or access the Service for the purpose of data mining or extracting content from the Service beyond your personal end use;
- disable or circumvent our API usage safeguards, including safeguards designed to regulate the nature or amount of data you are permitted to extract from our Services, or the frequency of which you may access such data; or make calls to our API other than those authorized in our API documentation;
- remove any copyright, trademark or other proprietary rights notices contained in or on Key Health Websites or Key Health Portal;
- upload, post, email, transmit, otherwise make available any Content or initiate communication that infringes upon patents, trademarks, trade secrets, copyrights, or other proprietary rights;
- engage in any activity other than those expressly permitted in these Terms and your User Agreement(s).
- upload, post, email or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
- impersonate any person or entity, including, but not limited to, an attorney, medical provider or patient or a Key Health employee or falsely state or otherwise misrepresent your identity, (including through the use of a pseudonym) or your position or affiliation with a person or entity, past or present;
- upload, post, email, transmit, otherwise make available any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- upload, post, email, transmit, otherwise make available any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation, except in those areas that are expressly designated for such
- collect or store personal data about other users;
- harm minors in any way;
- stalk or otherwise harass another;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any communication transmitted through the Key Health Website or the Service;
- attempt to use another user’s account or obtain unauthorized access to the Site or the Services;
- engage in deceptive marketing or advertising practice; or
- use the Key Health Website or the Key Health Portal for any purposes other than its intended purposes.
1.4 Use of the Services by and on behalf of Minors
You are not eligible to use our Services (including obtaining a Credential or entering into a User Agreement) unless you are at least 18 years old and otherwise have the legal capacity to enter into a binding contract in your jurisdiction. If you are an unemancipated minor over the age of 13, you may only use our Services if: (i) such use has been approved of by your parent or legal guardian, (ii) you use our Services under your legal guardian’s supervision, and (iii) your legal guardian has agreed to these Terms (and, if applicable, your User Agreement) on your behalf. If you are the parent or guardian of an unemancipated minor, you may use the Services and enter into a User Agreement on behalf of such minor. By doing so, you represent and warrant that you have the legal capacity to act on behalf of such minor; and you acknowledge and agree, in such capacity, that all provisions of these Terms (and the User Agreement, if applicable) that are applicable to you are equally applicable to such minor. Under no circumstances may our Services be used by a child under 13 years old.
1.5 United States Only
Access to our Services is administered in the United States (“US”) and is intended for users in the US. You may not use our Services in any jurisdiction where offering, accessing or using our Services would be illegal or unlawful.
2. NATURE OF THE CONTENT APPEARING ON OUR SERVICES
Our Services may include Content created by us or third parties, including other users, professionals, partners, advertisers, sponsors, consumers and governmental agencies. The Content is provided for general informational purposes, but should not be relied upon for personal, professional, medical or regulatory decisions. And we do not ensure the completeness, timeliness or accuracy of any Content.
2.2 Directories: Physicians, Lawyers, Medical Providers, Consultants, and Other Professionals
Our Services include listings and directories (“Directories”) to help you find physicians, healthcare professionals, lawyers, certified consultants or other professionals (collectively, “Professionals”). The Directories are provided for your convenience. The Directories are not comprehensive, but rather generally represent Professionals who use our Services and who have chosen to participate in the Directories. Further, we do not evaluate any Professional and the listing of a Professional does not in any way constitute a recommendation of such Professional by Key Health. Before obtaining services or treatment from any Professional listed in a Directory, you should take care to confirm the individual’s or company’s licensure and specialty certifications. The Professionals are solely responsible for the appropriateness and quality of the services they provide. Additionally, the Directories rely on information submitted by Professionals themselves. Unless Professionals provide us with current information, the Directory information may not be timely or accurate. You should confirm such information before obtaining services or treatment from a Professional.
Our Services may also include advertisements or promotional messages from us or sponsored by third parties (collectively, “Ads”). The manufacturers, services providers, distributors and resellers of the products and services identified in the Ads are solely responsible for the accuracy of their Ads and the suitability, efficacy, safety and quality of such products or services. An Ad does not in any way constitute or imply Key Health’s recommendation or endorsement of a product or service.
2.4 Links to Our and Other Sites
Our Services may contain hyperlinks (including hyperlinked Ads) to websites operated by third parties, or to materials or information made available by third parties. Such links do not constitute or imply Key Health’s endorsement of such third parties, or of the content of their websites, or the suitability, efficacy, safety or quality of their products or services, or the privacy information or security practices of their websites. Furthermore, Key Health is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such linked services. Key Health will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party linked services. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the linked services. Key Health disclaims all liability in connection therewith. We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Services, so long as: (a) the links only incorporate text, and do not use any Trademarks, (b) the links and the content on your website do not suggest any affiliation with Key Health or cause any other confusion, and (c) the links and the content on your website do not portray Key Health or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to Key Health. Key Health reserves the right to suspend or prohibit linking to the Services for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
2.5 Key Health Does Not Provide Medical Advice
Some Content may include health/medical or information. Such Content is provided for informational purposes only. We do not directly or indirectly practice medicine, and Key Health does not render medical advice, or dispense medical services via our Services or otherwise, and nothing contained in our Services should be intended to be a medical diagnosis or treatment. No medical professional/patient relationship is created by your use of our Services or the Content. Always seek the advice of a physician or other qualified professional with any questions you may have regarding a medical concern, and never disregard professional medical advice or delay seeking treatment based on any Content or other information included in the Services. If you think you may have a medical emergency, please call a healthcare professional, or your local emergency number (usually 911) immediately.
2.6 No Legal Advice or Regulatory Advice
Some Content may include legal or regulatory related information pertaining to you or your business. Such Content is provided for informational purposes only. We are not providing legal or regulatory advice and no attorney/client relationship is created by your use of our Services or the Content. You should not act, or refrain from acting, based upon any information on the Key Health Portal or provided by Key Health via the Services.
3. YOUR INTERACTIONS AND COMMUNICATIONS WITH US AND OUR SERVICES
3.2 Removal of Content
You understand and agree that Key Health may, but is not obligated to, monitor, edit or remove any Content for any or no reason at any time. We are not responsible, however, for any delay or failure in removing any Content.
3.3 Reporting Violations
We may provide you with tools with which to report violations of provisions of these Terms. Notwithstanding the availability of such tools, you acknowledge and agree that we are under no obligation to take any action with respect to any such report.
3.4 Copyright Policy Key Health will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If you believe that your User-Generated Content (defined below) has been copied in a way that constitutes copyright infringement, please provide us with the following information:
- A physical or electronic signature of the copyright owner or a person authorized to act on behalf of the owner, if someone other than you, of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
- A statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner; and
- Your contact information, including your address, telephone number, and email address.
We reserve the right to remove Content alleged to be infringing without prior notice, at our sole discretion, and without liability to you. In appropriate circumstances, we will also terminate a user’s account if the user is determined to be a repeat infringer.
Our designated copyright agent for notice of alleged copyright infringement is:
Key Health Medical Solutions, Inc.
Attn: Legal Department
30699 Russell Ranch Road, Suite 175
Westlake Village, CA 91362 USA
4. OWNERSHIP OF YOUR USER-GENERATED CONTENT
- General. You retain ownership of the intellectual property rights you hold in the content you submit on our Services. Key Health may now or in the future offer users of the Services the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Services (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, responses, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, “User-Generated Content”). Key Health may allow you to do this through forums, blogs, message boards, contact us tools, email, and other communications functionality. Subject to the license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content and you remain ultimately responsible for it.
- License to Key Health of Your User-Generated Content. Except as otherwise described in any applicable Additional Terms, which specifically govern the submission of your User-Generated Content, you grant to Key Health the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User-Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, producing, and marketing products and/or services. You understand that in exercising such rights metadata, notices and content may be removed or altered, including copyright management information, and you consent thereto and represent and warrant you have all necessary authority to do so. In order to further effect the rights and license that you grant to Key Health to your User-Generated Content, you also hereby grant to Key Health, and agree to grant to Key Health, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 4(i).
- Exclusive Right to Manage Our Services. Key Health may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User-Generated Content, and Key Health may, in its sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of User-Generated Content without notice or any liability to you or any third party in connection with our operation of User-Generated Content venues in an appropriate manner. Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms. Such User-Generated Content submitted by you or others need not be maintained on the Services by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User-Generated Content on the Services or elsewhere.
- Representations and Warranties Related to Your User-Generated Content. Each time you submit any User-Generated Content, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside or are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User-Generated Content you submit, and that, as to that User-Generated Content: (a) you are the sole author and owner of the intellectual property and other rights to the User-Generated Content, or you have a lawful right to submit the User-Generated Content and grant Key Health the rights to it that you are granting by these Terms and any Additional Terms, all without any Key Health obligation to obtain consent of any third party and without creating any obligation or liability of Key Health; (b) the User-Generated Content is accurate; (c) the User-Generated Content does not and, as to Key Health’s permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or other right of any third party; and (d) the User-Generated Content will not violate these Terms or any Additional Terms, or cause injury or harm to any person.
We reserve the right to monitor our Services, and investigate any activity we suspect violates these Terms, a User Agreement, our rights or interest, or the rights or interests of any person or entity.
4.3 We reserve the right, to the fullest extent permitted under law, to cooperate with any governmental authority or third party investigating conduct that may be illegal or harm any individual or entity or violates their respective rights. If, for example, a user threatens to physically harm another user or any other individual, we reserve the right to fully cooperate with law enforcement authorities and the threatened individual. You hereby consent to our cooperation in such investigation. Indemnification
You agree to, and you hereby, defend (at our option), indemnify, and hold Key Health harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against Key Health, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User-Generated Content; (ii) your use of the Services and your activities in connection with the Services; (iii) your breach or alleged breach of these Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Services or your activities in connection with the Services; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) Key Health’s use of the information that you submit to us (including your User-Generated Content) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by Key Health in the defense of any Claims and Losses. Notwithstanding the foregoing, Key Health retains the exclusive right to settle, compromise, and pay any and all Claims and Losses. Key Health reserves the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of Key Health.
4.4 Governing Law
The interpretation of these Terms and the resolution of any disputes arising under these Terms shall be governed by the laws of the State of California, without regard to its conflict of laws provisions. These Terms shall not be governed by the United Nations Convention on Contract for the International Sale of Goods, the application of which is expressly disclaimed.
Notwithstanding Section 4.5 that requires arbitration for all disputes, you also agree that we may bring suit in court to enjoin any violation of these Terms without the posting of a bond or security, in addition to whatever remedies we might have at law.
READ THIS PROVISION CAREFULLY AS IT AFFECTS YOUR RIGHT TO A JURY TRIAL. You agree to the following:
- Any and all disputes, claims or controversies arising out of or in connection with these Terms or our Services, or in any way connected to no matter how described, pleaded or styled, including claims arising in tort and/or contract, shall be decided exclusively and finally by binding arbitration. All parties hereby WAIVE THEIR RIGHT TO A JURY TRIAL by agreeing to binding arbitration. The arbitration hearing shall be conducted at a location within twenty (20) miles of your address. The arbitration shall be conducted before the American Arbitration Association (the “AAA”), pursuant to the AAA Commercial Arbitration Rules, available at www.adr.org or upon request.
- The arbitration shall be conducted by one neutral arbitrator appointed by the AAA. The arbitrator shall have actual experience in and knowledge of the subject matter of this Agreement to the greatest extent practicable, unless both parties agree otherwise. The arbitrator shall have the authority to award any monetary and nonmonetary relief available to either party in an action otherwise prosecuted in court, including injunctive and other provisional relief. Judgment on the arbitration award may be entered by any court of competent jurisdiction. The cost of initiating the arbitration and the arbitrator’s compensation (but excluding fees and costs of your counsel, if any) shall be paid by Key Health.
- This arbitration shall be solely between the parties to this Agreement, and no class arbitration or other representative action may be undertaken by the arbitrator, and the arbitrator shall have no power to consolidate or join claims of other parties or persons who may be similarly situated.
- The Federal Arbitration Act (“FAA”) and related federal law shall govern the interpretation and enforcement of this Paragraph to the fullest extent possible, to the exclusion of all otherwise potentially applicable state law, regardless of the location of the arbitration proceedings or the nature of the disputes or controversies between the parties to this Agreement. The arbitrator shall apply California law consistent with the FAA and related federal law, including applicable statutes of limitations and shall honor claims of privilege recognized at law.
- With the exception of subpart (iii) above, if any part of this arbitration agreement is deemed to be invalid, unenforceable or illegal, then the balance of this arbitration agreement shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein.
- You may elect to opt out of this arbitration provision by sending written notice to Key Health at 30699 Russell Ranch Rd. Suite 175 Los Angeles, CA 91362, Attn: Legal Department/ Arbitration before 5:00 p.m. Eastern Time on the tenth (10th) calendar day after you agree to these Terms, or such notice shall be of no force and effect. The foregoing time limit shall be strictly construed. Opting out of this arbitration provision shall not terminate these Terms or otherwise affect in any way any of the other rights and obligations of the parties hereto under the terms of these Terms.
Any part of this agreement to arbitrate that shall prove to be invalid, void, or illegal shall in no way affect, impair, or invalidate any other provision of this agreement to arbitrate, and such other provisions shall remain in full force and effect.
By using the Key Health Website and Key Health Portal, you do not acquire any rights to the Key Health Website, Key Health Portal and/or the Services other than a license to use it, which can be terminated at any time in accordance with this Section. You agree and acknowledge that Key Health, in its sole discretion, may terminate your password, account (or any part thereof) or access to or use of the Services or the Key Health Website, and remove and discard any Content within the Services, for any reason if Key Health believes that you have violated or acted inconsistently with the letter or spirit of these Terms. Key Health may also, in its sole discretion and at any time, discontinue providing the Services or access to the Key Health Website, or any part thereof, with or without notice. You agree that any termination of your access to the Services under any provision of these Terms may be effected without prior notice, and acknowledge and agree that Key Health may immediately deactivate or delete your account and all related Content information and files in your account and/or bar any further access to such files or the Services. Further, you agree that Key Health shall not be liable to you or any third-party for any termination of your access to the Services. Sections 4.1 through 4.16 shall survive any termination or expiration of these Terms.
4.7 Disclaimers and Limitations on Liability
ACCESS TO OUR SERVICES AND THE INFORMATION AND CONTENT CONTAINED THEREON IS PROVIDED “AS IS” AND “AS AVAILABLE” AND WE HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT BREACHES OF SECURITY AND YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN OR MADE IN RELIANCE ON OUR SERVICES OR THE INFORMATION IN OUR SERVICES, INCLUDING INACCURATE OR INCOMPLETE INFORMATION. WE EXPRESSLY DISCLAIM ANY LIABILITY WITH RESPECT TO ANY INJURY CAUSED BY ANY USER, OR ANY DAMAGE SUFFERED BY ANY USER, AS A RESULT OF THE ACTIONS OR INACTIONS OF ANY OTHER USER. IF YOU ARE DISSATISFIED WITH OUR SERVICES OR ANY CONTENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING AND ACCESSING OUR SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO IN THESE JURISDICTIONS THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO THE USER.
4.8 Risks You Assume
WITHOUT LIMITING ANY OF THE OTHER RISKS WE HAVE DISCLOSED TO YOU IN THESE TERMS, YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF OUR SERVICES, INCLUDING ANY CONTENT YOU SUBMIT TO USE AND YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE AND ACCESS TO OUR SERVICES AND THE INFORMATION AND CONTENT CONTAINED THEREIN, AND ANY SITES LINKED THROUGH OUR SERVICES AND ANY DATA TRANSMITTED THROUGH OUR SERVICES IS AT YOUR SOLE RISK. ACCORDINGLY, WE DO NOT ASSUME ANY LIABILITY TO YOU FOR OR RELATING TO ANY OF YOUR ACTIONS, INCLUDING THE PUBLICATION OF ANY CONTENT YOU SUBMIT OR OUR EXERCISE OF THE RIGHTS YOU GRANT TO US WITH RESPECT THERETO.
4.9 Limitation of Liability
IN NO EVENT SHALL WE OR ANY OF OUR SUBSIDIARIES OR AFFILIATES, OR OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS AND LICENSORS (COLLECTIVELY, THE “KEY HEALTH”) BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE, LOSS OF GOODWILL OR LOSS OF INFORMATION, HOWEVER CAUSED AND WHETHER BASED ON CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EVEN IF WE HAVE BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY, OUR AGGREGATE LIABILITY IN RESPECT OF ANY CLAIM OR ACTION YOU MAY BRING AGAINST KEY HEALTH, REGARDLESS OF FORM OF ACTION OR THEORY OF LIABILITY, SHALL BE LIMITED TO THE GREATER OF (1) ONE HUNDRED UNITED STATES DOLLARS (US $100), AND (2) THE AGGREGATE FEES ACTUALLY PAID BY YOU TO US FOR THE SIX (6) MONTH PERIOD PRECEDING THE EVENT FIRST GIVING RISE TO SUCH CLAIM OR ACTION. YOU ACKNOWLEDGE THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE UNKNOWN OR UNSUSPECTED. ACCORDINGLY, YOU AGREE TO WAIVE THE BENEFIT OF ANY LAW, INCLUDING, TO THE EXTENT APPLICABLE, CALIFORNIA CIVIL CODE § 1542 (OR SIMILAR PROVISIONS OF THE LAWS OF OTHER STATES), 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.
If any provision of these Terms is deemed invalid or unenforceable, then: (a) that provision shall be construed to the extent necessary to make it valid and enforceable in such a manner as comes closest to preserving the intentions of such provision, and (b) the remaining provisions shall remain in full force and effect.
4.11 Waiver of Injunctive or Other Equitable Relief
IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICES, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, USER-GENERATED CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY KEY HEALTH (INCLUDING YOUR LICENSED USER-GENERATED CONTENT) OR A LICENSOR OF KEY HEALTH.
4.12 No Waiver
Our failure at any time to require performance by you of any provision of these Terms shall in no way affect our right to enforce such provision, nor shall the waiver of any breach by you of any provision herein constitute a waiver of any succeeding breach or the provision itself.
For the purpose of these Terms, “you” means the individual user of our Services and visitors to our Websites. If your access or use of our Services is, directly or indirectly, on behalf of one or more third parties (such as, without limitation, your employer or client, or your employer’s client, if your employer has been engaged to access our Services (any such employer, client or other third party, a “Principal”)), then “you” also refers to such Principal. If you are using our Services on behalf of a Principal, (a) you represent and warrant that you have the authority to bind, and have bound, such Principal to these Terms; and (b) you agree to be jointly and severally liable for any breach of these Terms by Principal. See also the Key Health User Portal Agreement.
“Key Health,” “we,” “our,” and “us” means, collectively, Key Health Medical Solutions, Inc., Key Health Management, Inc., Key Health Medical Solutions of Nevada, Inc., and MedLegal Solutions, Inc. and our future subsidiaries and affiliates.
In addition, the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” The word “or” shall be construed to have the same meaning and effect as “and/or.” The words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to these Terms. The headings used in these Terms are used for convenience only and are not to be considered in construing or interpreting these Terms. These Terms, together with your User Agreement(s), constitute the entire agreement between you and Key Health regarding any services accessed via the Key Health Website or Key Health Portal, and supersede all previous communications, representations, or understandings, either oral or written, relating to the subject matter hereof; provided, however, (a) in the event of an express conflict between any specific provision included in these Terms and the express provision in the User Agreement, the provision set forth in User Agreement shall prevail, and (b) these Terms shall cover all rights, obligations, terms and conditions not expressly addressed in such User Agreement.
4.14 Electronic Contracting
Your use of our Services includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THE SERVICES, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS.
Key Health may assign its rights and obligations under these Terms, in whole or in part, to any party at any time without any notice. These Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Key Health.
These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the applicable services to which it applies, shall govern such use (including transactions entered during such use). AS OUR SERVICES EVOLVE, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE SERVICES MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE SERVICE UNDER THE TERMS OR ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED. Key Health reserves the right to modify these Terms at any time and from time to time, and without prior notice, by posting amended Terms on the Key Health Website or notify you via email. ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SERVICES YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE SERVICES (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SERVICES AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE OTHER TERMS FOR YOUR NEW USE AND TRANSACTIONS. Therefore, you should review the posted terms of service and any applicable Additional Terms each time you use the Services (at least prior to each transaction or submission). The Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. However, the Terms (and any applicable Additional Terms) that applied when you previously used the Services will continue to apply to such prior use (i.e., changes and additions are prospective only) unless mutually agreed. In the event any notice to you of new, revised or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You should frequently check the home page of the Services and the email you associated with your account for notices, and you agree that the means set forth in these Terms are all reasonable manners of providing you with notice. You can reject any new, revised or Additional Terms by discontinuing use of the Services and related services. The most current version of the Terms shall govern and supersede all previous versions.
Last Updated: May 16, 2016