Set forth below are the Terms and Conditions that govern your use of the ModeraCare website (the “Web Site”). These Terms and Conditions describe your rights and obligations with respect to the Web Site and should be read carefully. By logging onto the Web Site, you confirm that you have read these Terms and Conditions, and you agree to be bound by them. If you do not agree to these Terms and Conditions, you should exit from this Web Site immediately and you do not have permission to use or access this Web Site.
ModeraCare, Inc. (the “Company”) may amend these Terms and Conditions at any time without notice to you by posting the amended version on this Web Site. The amended Terms and Conditions will automatically become effective immediately after they are first posted on the Web Site. Your continued use of the Web Site will evidence your acceptance of the amended Terms and Conditions.
You acknowledge and understand that (1) the Company is a distributor of the MeMD™ telemedicine service (the “MeMD™ Service”) and does not itself provide healthcare services, (2) the Web Site simply provides a means to enroll into the MeMD™ Service, (3) the MeMD™ Service is a service based plan and is not intended to replace insurance plans or policies already in force, and (4) if you enroll into the MeMD™ Service you may be subject to additional terms and conditions as may be provided therein.
Intellectual Property Rights
The website address, www.moderacare.com, is owned by the Company. All rights are exclusively reserved to the Company. You acknowledge that the Web Site may contain information, communications, software, photos, text, video, graphics, music, sounds, images and other material and services (collectively “Content”), which are provided by the Company or by licensors of the Company. You agree and acknowledge that, notwithstanding that the Company permits you to access the Content, the Content and its use or the use of this Web Site is protected by patents, copyrights, trademarks, and other proprietary rights (including intellectual property rights), that these rights are valid and protected in all media now existing or later developed, and that except as specifically provided in these Terms and Conditions, your use of the Content shall be governed and constrained by applicable patent, copyright, trademark and other intellectual property laws. In addition to the Company’s and its licensors’ rights in individual elements of the Content, the Company owns a copyright in the selection, coordination, arrangement and enhancement of the Content. You agree not to assert any claim of ownership over this Web Site, including without limitation, the Content, based on your use.
Your use of this Web Site constitutes a license, not a transfer in title. You expressly acknowledge and agree that no right is granted to you to copy (other than by printing or downloading portions for your personal use only, but not for other persons’ use or for commercial exploitation), modify, alter, revise, paraphrase, omit, change, display, perform store, timeshare, rent, lease, sublicense, publish, distribute, transmit, transfer, assign, sell, create derivative works from, or commercially exploit in any manner whatsoever any of the Content. You may not post, upload, display or otherwise transmit any materials to another website, including but not limited to, any personal or commercial websites or home pages. You may download one copy of the materials found on this Web Site on a single computer for your personal, non-commercial, internal use only unless specifically licensed to do otherwise in writing by the Company. You agree not to assert any claim of ownership over this Web Site, including without limitation, the Content, based on your use.
Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. All amounts paid are nonrefundable. All pricing terms are confidential, and you agree not to disclose them to any third party.
Billing and Renewal
Should you choose to enroll into the MeMD™ Service, the Company will charge and collect in advance a monthly fee for your use of the MeMD™ Service via expressPay. The Company will automatically renew and bill your credit card or issue an invoice to you for your current subscription amount where applicable, or as otherwise mutually agreed upon. The Company’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on the Company’s income.
You agree to provide expressPay with complete and accurate billing and contact information. This information includes your legal name, street address, e-mail address, and telephone number. You agree to update this information immediately upon any change to it. If the contact information you have provided is false or fraudulent, the Company reserves the right to terminate your access to the MeMD™ Service in addition to any other legal remedies. Invoices will be billed in United States Dollars (USD) unless requested by you in advance of invoicing.
If you believe your bill is incorrect, you must immediately contact us in writing regarding the amount in question to be eligible to receive an adjustment or credit. You irrevocably waive your right to challenge the accuracy of any bill, or otherwise receive an adjustment or credit to any bill, if you fail to notify the Company in writing within fifteen (15) calendar days after your receipt of the bill, that you believe the bill is inaccurate (setting forth an explanation of why).
Non-Payment and Suspension
In addition to any other rights granted to the Company herein, the Company reserves the right to suspend or terminate these Terms and Conditions and your access to the Web Site and the MeMD™ Service if your account becomes delinquent (falls into arrears) where any invoice is unpaid after the invoice due date. Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for your subscription during any period of suspension. If you or the Company initiates termination of these Terms and Conditions, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that the Company may bill you for such unpaid fees. The Company reserves the right to impose a reconnection fee in the event your account is suspended and you thereafter request access to the MeMD™ Service.
Contacting You Regarding Billing and Collections
You expressly authorize and specifically consent to allowing the Company and any of its agents to contact you in connection with any and all matters relating to unpaid past due charges you may owe the Company. You agree that, for attempts to collect unpaid past due charges, the Company and any of its agents may contact you at any mailing address, telephone number, cellular phone number, e-mail address, or any other electronic address that you have provided, or may in the future provide, to the Company. You agree and acknowledge that any e-mail address or any other electronic address that you provide to the Company is your private address and is not accessible to unauthorized third parties. For attempts to collect unpaid charges, you agree that in addition to individual persons attempting to communicate directly with you, any type of contact described above may be made using, among other methods, pre-recorded or artificial voice messages delivered by an automatic telephone dialing system, pre-set e-mail messages delivered by an automatic e-mailing system, or any other pre-set electronic messages delivered by any other automatic electronic messaging system.
Termination for Cause
Any breach of your payment obligations or unauthorized use of the MeMD™ Service will be deemed a material breach of these Terms and Conditions. The Company, in its sole discretion, may immediately terminate your password, account, or use of the MeMD™ Service if you breach or otherwise fail to comply with these Terms and Conditions. In addition, the Company may terminate a free account at any time in its sole discretion.
Representations and Warranties
Each party represents and warrants that it has the legal power and authority to enter into these Terms and Conditions. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Web Site or the MeMD™ Service and that your billing information is correct.
You agree to indemnify, defend and hold harmless the Company, its parents, subsidiaries, affiliates, officers, directors, employees and agents (collectively, the “Indemnified Parties”) from and against all claims, losses, damages, liabilities and judgments, and all fees and expenses related thereto (including, without limitation, reasonable legal fees) incurred by an Indemnified Party as a result of any violation by you of your agreements with us.
Disclaimer of Warranties
The use of the Web Site, the content or information contained on the Web Site is provided solely at your own risk. The Web Site is provided on an “as is” and “as available” basis. The Company expressly disclaims all warranties of any kind with respect to the Web Site and its content, whether express or implied, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. The Company makes no warranty that the Web Site and/or any content therein will meet your requirements, or will be uninterrupted, timely, secure, current, accurate, complete or error-free or that the results that may be obtained by use of the Web Site and/or any content therein will be accurate or reliable. You understand and acknowledge that your sole and exclusive remedy with respect to any defect in or dissatisfaction with the Web Site is to cease using the Web Site.
The Company does not provide any healthcare services but is a distributor of the MeMD™ Service, which, in turn, facilitates communication with independently contracted healthcare providers who will exercise judgment completely independent of the Company. The Company specifically disclaims all liability for the acts or omissions of any such provider providing healthcare services or advice (including but not limited to prescribing medications) through the MeMD™ Service. The Company further disclaims all liability (including any liability for a refund) for any additional services provided by or through this Web Site or the MeMD™ Service. Additionally, the Company is not responsible for any representations or misrepresentations regarding the MeMD™ Service made by MeMD, Inc. or any independent contractors promoting or distributing the MeMD™ Service on its behalf.
The Web Site may contain links to third party web sites. These links are provided solely as a convenience to you and not as an endorsement by the Company of the contents on such third party web sites. The Company is not responsible for the content of linked third party web sites and does not make any representations regarding the content or accuracy of materials on such third party web sites. If you decide to access linked third party web sites, you do so at your own risk.
Limitation of Liability
You expressly understand and agree that the Company shall not be liable for any direct, indirect, incidental, special, consequential, exemplary or punitive damages, including without limitation, damages for loss of profits, goodwill, use, data loss, or other losses (even if the company has been advised of the possibility of such damages) resulting from:
o The use or inability to use the Web Site, including, without limitation, whether caused by a computer virus, software bug, human action or inaction, malfunctions of any hardware, software or other element of a computer system, errors, failure, malfunction or delay in computer transmission or network connections;
o The cost of procurement of any substitute products and/or services resulting from any products, data, information or services obtained or which you were unable to obtain or transactions affected or failed to be affected;
o Any link provided in connection with the Web Site;
o Any matter otherwise related to your use of the Web Site; or
o The use of the MeMD™ Service.
Dispute Resolution and Arbitration; Waiver of Class Action
In those rare instances where your concern is not resolved to your satisfaction through calls to our customer care, you and the Company each agree to try to resolve those disputes in good faith after you provide written notice of the dispute as set forth below. If the dispute is not resolved, you and the Company agree that the dispute will be resolved through individual binding arbitration, instead of courts of general jurisdiction. You and the Company agree to arbitrate all Disputes (as defined below) on an individual, non-representative, basis. You agree that, by accepting these Terms and Conditions, you and the Company are waiving the right to a trial by jury or to participate in a class action or representative action. This agreement to arbitrate is intended to be broadly interpreted.
In arbitration, there is no judge or jury. Disputes are instead decided by a neutral third-party arbitrator in a more informal process than in court. In arbitration, there is limited discovery and the arbitrator’s decision is subject to limited review by courts. However, just as a court would, the arbitrator must honor the terms and conditions of the Use Agreement and can award damages and relief, including any attorneys’ fees authorized by law.
“Disputes” shall include, but are not limited to, any claims or controversies against each other related in any way to or arising out of in any way the Web Site, the MeMD™ Service or these Terms and Conditions, including, but not limited to, billing services and practices, policies, contract practices (including enforceability), service claims, privacy, or advertising, even if the claim arises after use of or access or subscription to the Web Site or the MeMD™ Service has terminated. Disputes also include, but are not limited to, claims that: (a) you or an authorized or unauthorized user of the Web Site or MeMD™ Service brings against the Company, its subsidiaries, affiliates, parent companies, employees, subcontractors, agents, vendors, suppliers, or licensors; (b) you bring against a third party, such as a healthcare provider providing care through the MeMD™ Service, that are based on, relate to, or arise out of in any way the use of or access or subscription to the Web Site, the MeMD™ Service or these Terms and Conditions; or (c) the Company brings against you. Disputes also include, but are not limited to, (i) claims in any way related to or arising out of any aspect of the relationship between you and the Company, whether based in contract, tort, statute, fraud, misrepresentation, advertising claims, or any other legal theory; (ii) claims that arose before these Terms and Conditions or out of a prior Terms and Conditions with the Company; (iii) claims that are subject to on-going litigation where you are not a party or class member; and/or (iv) claims that arise after the termination of your use of or access or subscription to the Web Site, the MeMD™ Service or these Terms and Conditions.
Dispute Notice and Dispute Resolution Period
Before initiating an arbitration or a small claims matter, you and the Company each agree to first provide to the other a written notice (“Notice of Dispute”), which shall contain: (a) a written description of the problem and relevant documents and supporting information; and (b) a statement of the specific relief sought. A Notice of Dispute to the Company should be sent to the Company’s at the following address: ModeraCare, Inc., PO Box 4354, Tequesta, FL 33469-1020, Attn: Officers. The Company will provide a Notice of Dispute to you at your last known physical address or e-mail address. The Company will assign a representative to work with you and try to resolve your Dispute to your satisfaction. You and the Company agree to make attempts to resolve the Dispute prior to commencing an arbitration. If an agreement cannot be reached within forty-five (45) days of receipt of the Notice of Dispute, you or the Company may commence an arbitration proceeding.
Arbitration Terms, Process, Rules and Procedures
(1) Unless you and the Company agree otherwise, the arbitration will be conducted by a single, neutral arbitrator and will take place in Kanawha County, West Virginia (or such other location to which the Company agrees). The arbitration will be governed by either: (a) rules that the parties mutually agree upon; or (b) the JAMS Comprehensive Arbitration Rules & Procedures (the “JAMS Rules”), as modified by this agreement to arbitrate, including the rules about filing, administration, discovery, and arbitrator’s fees. The JAMS Rules are available on its website at jamsadr.com. Notwithstanding any JAMS Rule to the contrary or any other provision in the arbitration rules chosen, by agreement, to govern the arbitration, the parties agree that all issues regarding the Dispute are delegated to the arbitrator to decide, except that only a court (and not the arbitrator) shall decide any disagreements regarding the scope and enforceability of this agreement to arbitrate.
(2) The Federal Arbitration Act (“FAA”) applies to your use of or access or subscription to the Web Site, the MeMD™ Service and these Terms and Conditions and arbitration provision. We each agree that the FAA’s provisions – not state law – govern all questions of whether a Dispute is subject to arbitration. To the extent that this agreement to arbitrate conflicts with the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards for Procedural Fairness (the “Minimum Standards”), the Minimum Standards in that regard will apply. However, nothing in this paragraph will require or allow you or the Company to arbitrate on a class-wide, representative, or consolidated basis.
(3) The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND THE COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A CLASS MEMBER IN ANY PUTATIVE CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and the Company expressly agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If any portion of this provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
(4) Each party is responsible for its respective costs, including its respective attorneys, experts, and witnesses, unless these Terms and Conditions or applicable law otherwise permit the award of such to the Company. The parties will pay equally for any filing or case management fees associated with the arbitration and professional fees for the arbitrator’s services.
(5) An arbitrator’s award will be a written statement of the disposition of each claim and will also provide a concise written statement of the essential findings and conclusions which form the basis of the award. The arbitrator’s decision and award is final and binding, with some limited court review under the FAA, and judgment on the award may be entered in any court with jurisdiction.
No Trial by Jury and No Class Action
If for any reason a claim arising out of or relating to your use of or access or subscription to the Web Site, the MeMD™ Service or these Terms and Conditions in any way proceeds in court rather than in arbitration, regardless of whether the claim is an action, counterclaim or any other court proceeding, the parties each agree that to the extent allowed by law, there will not be a jury trial or class action, and the parties each unconditionally (1) waive any right to trial by jury and (2) waive any right to pursue disputes in a class-wide basis, including joining a claim with the claim of any other person or entity or asserting a claim in a representative capacity on behalf of anyone else in any other proceeding.
Assignment; Change in Control
These Terms and Conditions may not be assigned by you without the prior written approval of the Company but may be assigned without your consent by the Company to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
Jurisdictional and Other Matters
You are responsible for compliance with all local laws, if and to the extent your local laws are applicable. In addition, you and the Company and any of its parents, subsidiaries, affiliates, employees, contractors, agents, officers, or directors (collectively, the “Company Parties”) agree that these Terms and Conditions and any actions arising from these Terms and Conditions or your use of the Web Site will be governed by the laws of the State of West Virginia, without respect to its conflict of laws provisions, and applicable federal laws and regulations, and that venue with respect to any dispute between you and the Company or Company Parties will rest exclusively in the state and federal courts located in the State of West Virginia.
You understand and agree that the Company may from time to time establish and revise practices and limitations concerning its Web Site and your use of it. You agree that the Company shall have no liability for the deletion or failure to store any messages and other communications or other content maintained on the Web Site or transmitted using the Web Site. These Terms and Conditions constitute the entire agreement between you and the Company with respect to the Web Site and govern your use of the Web Site. You also may be subject to additional terms and conditions that may apply when you use third party content or websites available through the Web Site. If any provision of these Terms and Conditions is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms and Conditions, which shall remain in full force and effect. The failure of the Company to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Web Site or these Terms and Conditions must be filed within one year after such claim or cause of action arose. The Company may provide notice to you by e-mail or regular mail. The Company may also provide notice of changes to these Terms and Conditions at any time and from time to time by displaying notices to you on pages of the Web Site. The section titles of these Terms and Conditions are merely for convenience.
Agreement to Marketing Terms and Conditions
By agreeing to these terms and conditions, you agree to authorize ModeraCare, Inc., its agents and/or subsidiaries of ModeraCare, Inc. to contact you in the future regarding other products and services offered by ModeraCare or its affiliates. ModerCare will not sell or solicit your information to third parties.
Electronic Signatures and System Requirements
By logging onto and using the Web Site you have signified your agreement to all of the terms and conditions to use the Web Site, and shall have the same binding effect as it would had you signed the same agreement on paper. If you would like a paper copy of this agreement, you may obtain one by submitting a written request to: ModeraCare, Inc., PO Box 4354, Tequesta, FL 33469-1020. For optimum use of the Web Site, you may need to utilize specific web browsers.