Terms of Use/End User Agreement

Last revised: September 6, 2017

USER AGREEMENT

PLEASE READ THE FOLLOWING CAREFULLY.  THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AS AN EMPLOYEE OF A USER ENTITY OF OUR TELEMEDICINE PLATFORM (“USER” OR “YOU”) AND CURATESS, LLC (“SUPPLIER”, “WE” OR “US”).

THESE TERMS OF USE, TOGETHER WITH OUR PRIVACY POLICY AND ALL APPLICABLE AGREEMENTS, RULES AND POLICIES (“ADDITIONAL TERMS”) AND OUR END USER LICENSE AGREEMENT, BELOW, CONSTITUTE THE “AGREEMENT” BETWEEN YOU AND US REGARDING YOUR MOBILE AND ONLINE EXPERIENCE.  BY ACCESSING OR USING THE TELEMEDICINE PLATFORM, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS.

USER ENTITY” IS A COMPANY OR ANOTHER ENTITY THAT IS (I) OUR CUSTOMER PURSUANT TO A MASTER SERVICES AGREEMENT WITH US OR AN END USER OF OUR CUSTOMER PURSUANT TO A SEPARATE ACCESS AGREEMENT BETWEEN THE END USER AND OUR CUSTOMER, OR (II) ANOTHER THIRD-PARTY THAT HAS ENTERED INTO A SEPARATE WRITTEN AGREEMENT WITH US FOR ACCESS TO THE TELEMEDICINE PLATFORM IN ORDER TO PROVIDE A THIRD-PARTY SERVICE TO OUR CUSTOMER.   IN EACH CASE, THE MASTER SERVICES AGREEMENT OR SEPARATE WRITTEN AGREEMENT BETWEEN THE USER ENTITY AND US OR OUR CUSTOMER SHALL BE REFERRED TO AS THE “RIGHT TO ACCESS AGREEMENT”.

YOU ALSO REPRESENT AND WARRANT TO US THAT (I) YOU ARE NOT LOCATED IN A COUNTRY THAT IS OUTSIDE THE UNITED STATES; AND (II) YOU ARE NOT LISTED ON ANY U.S. GOVERNMENT LIST OF PROHIBITED OR RESTRICTED PARTIES.

IF YOU HAVE NOT READ THE AGREEMENT, DO NOT UNDERSTAND OR AGREE TO BE BOUND BY THE AGREEMENT, OR ARE NOT ABLE TO CONSENT TO BE BOUND BY THE AGREEMENT (E.G., IF YOU ARE NOT OLD ENOUGH TO ENTER INTO A BINDING LEGAL CONTRACT), DO NOT USE OUR PLATFORM.

NOTE THAT DISPUTES ABOUT THIS AGREEMENT OR RELATING TO THE PLATFORM GENERALLY MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY.  See Section 25 of this Agreement for more details.

1.              Description of Platform and Service

Curatess, LLC, a  Illinois  Corporation is a developer and provider of telehealth services through the use of our proprietary telehealth platform, certain equipment that can be used with the platform and software, as described below, for accessing the platform (together, the “Telehealth Solution”).  Users access the Telemedicine Platform (“Platform”) via a web-based portal on the User’s PC or Mac Device (“Portal”) or through an iOS / Android mobile application downloaded to the User’s mobile Device via a web portal download of a mobile application (“App”), through which nurses and physicians can connect with remote patients to provide healthcare by utilizing targeted functionalities including but not limited to microphone and video communications and electronic medical record accessibility.

Access and use of the Telehealth Solution, including the Platform, is governed by the terms and conditions of this Agreement, including the End User License Agreement, below, and any separate Right to Access Agreement between your User Entity and us or one of our customers. A customer is able to purchase the Equipment for the Telehealth Solution from us or third-parties and/or provide their own advanced nursing practitioners or purchase certain additional nursing services from third party advanced nursing service providers that, in each case, will compliment a customer’s experience with the overall Telehealth Solution.  A customer is also able to purchase other types of services from third-party service providers that, in each case, will complement a customer’s experience with the overall Telehealth Solution.  Like customer, any end user of Customer and any third-party service provider of Customer may also be a User Entity.

We do not guarantee that any of the information provided through the Platform is accurate or up-to-date.  We do not own, manage, endorse, advocate for, or operate any of the third party service providers which may be used by customer and its end users with the Telehealth Solution.  We act solely as a platform between patients and remote care physicians and remote advanced practice nurses and other third-party service provider offerings to help a User Entity that is a customer or an end user of customer provide for the care of their patients.  The Platform is merely a platform and service that helps connect such parties.

2.              Scope and Acceptance

Anyone affiliated with a User Entity who accesses or uses our Platform is a “User.”  The Agreement sets forth your rights and obligations as a User with respect to your access to and use of our Platform and use of any and all information or data of any kind arising from access to, or use of, our Platform, including, without limitation, any text, graphics, sound recordings, audio, video, and art work.

WE RESERVE THE RIGHT, AT OUR SOLE DISCRETION, TO CHANGE, MODIFY, ADD OR REMOVE PORTIONS OF THIS AGREEMENT (INCLUDING THE PRIVACY POLICY) FROM TIME TO TIME, WITHOUT PRIOR NOTICE (AS FURTHER DESCRIBED IN SECTION 21 BELOW).  WE WILL POST MATERIAL CHANGES ON OUR PLATFORM, HOWEVER, IT IS YOUR RESPONSIBILITY TO CHECK THIS AGREEMENT PERIODICALLY FOR CHANGES. YOUR CONTINUED USE OF THE PLATFORM FOLLOWING THE POSTING OF CHANGES WILL MEAN THAT YOU ACCEPT AND AGREE TO THE CHANGES.

3.              Eligibility and Access

Users are only able to access the Platform after a User Entity has executed a Right to Access Agreement with us or one of our customers.    This User Agreement provides additional terms governing your use of the Platform as a User and, if you are accessing the Platform via a Portal or an App, additional terms governing your use of the Portal or the App.

If you are accessing or using our Platform on behalf of any business, organization, or other entity of any kind that is a User Entity that has executed a Right to Access Agreement with us or one of our customers, you represent and warrant that you are authorized by such User Entity to access the Platform.

The Platform is not intended or authorized for use by persons under the age of eighteen (18).  By using the Platform, you represent and warrant that you are eighteen (18) years of age or older and that you agree to and agree to abide by all of the terms and conditions of the Agreement.  If we believe that you are under the age of eighteen (18) or that you are not old enough to consent to and be legally bound by the Agreement, we may, at any time, in our sole discretion, and with or without notice: (i) terminate your access to or use of the Platform (or any portion, aspect, or feature of it), or (ii) delete any content or information that you have posted through the Platform.

Subject to the terms and conditions of the Master Agreement, we reserve the right to deny access to our Platform at our discretion and for any reason, including any breach of the Agreement.

4.              Additional Terms

Additional terms and conditions may apply to specific portions, options, or features of the Telehealth Solution, all of which are made a part of this Agreement by this reference, including but not limited to those listed below.  You agree to abide by all applicable Additional Terms.  Our obligations, if any, with regard to its products and services are governed solely by the agreements pursuant to which they are provided, and nothing in this Agreement should be construed to alter such agreements.

In addition to this Agreement, the Privacy Policy describes our policies with respect to the collection, use, and disclosure of personal information from you.

If there is a conflict between the Right to Access Agreement, this Agreement and any Additional Terms, the following terms shall control in the following order: (i) the Right to Access Agreement, (ii) this Agreement, and (iii) any Additional Terms, including without limitation, the Privacy Policy.

5.              Account Information and Security

In order to use the Platform, we may ask you to create an account and select a password and/or provide us with certain personal information.  This information will be held and used in accordance with our Privacy Policy.

You agree that you will provide us with accurate, complete, and updated information on your account.  You are responsible for maintaining the security of your account.  We recommend that you do not share your account details or your password with others.  YOU ARE SOLELY RESPONSIBLE FOR ANY ACTIVITY IN YOUR ACCOUNT, WHETHER OR NOT AUTHORIZED BY YOU, INCLUDING CONTENT PUBLISHED OR PURCHASES MADE THROUGH YOUR ACCOUNT.

Please notify us immediately of any actual or suspected loss, theft, fraud, or unauthorized use of your account or account password.

6.              Operation

We reserve complete and sole discretion with respect to the operation of our Platform.  We reserve the right to change terms and warranties without notice.  We also reserve the right to withdraw, suspend, or discontinue any functionality or feature of our Platform at any time.

7.              Inaccuracies on the Platform

A possibility exists that the Platform could include inaccuracies or errors and that additions, deletions, and alterations could be made to the Platform by unauthorized third-parties.  Although we attempt to ensure the integrity of the Platform, we make no guarantees as to the completeness, correctness, or accuracy of the Platform or any of the content on the Platform.  If you believe any portion of our Platform includes an error or inaccuracy, please notify us.

8.              Availability of the Platform

It is not possible to operate our Platform with 100% guaranteed uptime.  We will make reasonable efforts to keep our Platform operational. However, certain technical difficulties, routine site maintenance and upgrades, and other events may, from time to time, result in interruptions to or outages of our Platform.  In addition, we reserve the right at any time, and from time to time, to modify or discontinue (on a temporary or permanent basis) certain functions of our Platform, with or without notice.

You agree that we shall not be liable to you or to any third party for any direct or indirect consequence of any modification, suspension, discontinuance of, or interruption to our Platform.

9.              Technical Requirements

Use of the Platform requires Internet access through your computer or mobile device. You are responsible for all mobile carrier charges resulting from your use of the Platform, including from any notifications provided by the Platform. We do not guarantee that the Platform will be compatible with all devices or will be supported by all mobile carriers. You are required to have JavaScript (or similar technologies) enabled in Google’s Chrome browser to use the Platform, and some features and portions of the Platform (including, but not limited to, making, modifying, or canceling reservations) may not be accessible with JavaScript disabled.

10.           Trademarks

The name “Curatess” and the “Curatess” logo are trademarks of Curatess in the United States and other countries. All other company names, logos, and trademarks mentioned herein are the property of their respective owners.  Nothing herein shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use our names, logos, trademarks or other intellectual property displayed on this Platform except as expressly provided herein or by obtaining the written permission of us or such other third party owner, as applicable.  You acknowledge that we will aggressively enforce its intellectual property rights with respect to its trademarks to the fullest extent of the law, including, without limitation, the seeking of criminal prosecution.

11.           Our Proprietary Rights

The Telehealth Solution is owned and operated by us.  As between you and us, we own and retain all proprietary rights in the Platform and the Telehealth Solution. The hardware, software, content, text, photographs, visual interfaces, interactive features, information, trademarks, logos, graphics, music, design, artwork, compilation, computer code, products, software, services, structure and “look and feel” of this content and all other elements of our Platform (hereinafter, the foregoing, and specifically excluding any protected health information, shall be referred to as “Curatess Materials”), is owned, controlled or licensed by or to us, and is protected by copyright, trade dress, patent, trademark, unfair competition, and other intellectual property laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Curatess Materials, including intellectual property rights therein and thereto, are the property of us or its subsidiaries or affiliated companies and/or third-party licensors. You may not sell, license, distribute, copy, reproduce, republish, upload, modify, publicly perform or display, encode, translate, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Curatess Materials, without our express prior written consent. We reserve all rights not expressly granted in this Agreement. You shall not acquire any right, title or interest to the Curatess Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in this Agreement. You acknowledge that we will aggressively enforce its intellectual property rights with respect to our Curatess Materials to the fullest extent of the law, including, without limitation, the seeking of criminal prosecution.

Notwithstanding the foregoing, you may view, download, print, and copy Curatess Materials for your own personal, informational use, provided that (i) you do not modify the Curatess Materials and (ii) you retain all copyright and propriety notices originally contained in the Curatess Materials on any copies.

12.           User Feedback

Any feedback, comments, ideas, improvements or suggestions (collectively, “Suggestions”) provided by you to us with respect to the Platform or our Telehealth Solution shall remain the sole and exclusive property of us.  We shall be free to use, copy, modify, publish, or redistribute the Suggestions for any purpose and in any way without credit or compensation to you.

13.           Permitted Use

Certain materials on our Platform are protected by health care laws and intellectual property laws, including but not limited to HIPAA and U.S. copyright laws.  You expressly acknowledge and agree that the content accessible within our Platform that is not expressly designated as being provided by a third party is the property of us and its content providers, and we and our content providers retain all right, title, and interest in the content.

Subject to the terms of this Agreement, you are granted a limited, personal, non-exclusive, non-sublicensable, non-assignable, non-transferable, and revocable license to access and use our Platform and related materials solely for your own personal use in accordance with the license scope and use restrictions specified in a Right to Access Agreement with your User Entity that provided you with the right to access the Platform on its behalf.  Except as expressly provided, all rights are reserved.

14.           User Content

We may, at our sole discretion, permit Users to post, upload, publish, submit, or transmit photos, diagrams, text, testimonials, reviews, videos, sounds, images, or information (collectively, the foregoing, and specifically excluding protected health information, shall be referred to as “User Content”) on the Platform.  By making available any User Content on the Platform, you hereby grant Curatess a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such User Content on, through, or by means of the Platform.  We do not claim any ownerships rights in any such User Content and nothing in this User Agreement will be deemed to restrict any rights that you may have to use and exploit such User Content.  You acknowledge and agree that you are solely responsible for all User Content that you make available through the Platform.  Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the Platform or you have all rights, licenses, consents, and releases that are necessary to grant to us the rights in such User Content, as contemplated under these Terms; (ii) neither the User Content nor your posting, uploading, publication, submission, or transmittal of the User Content or our use of the User Content (or any portion thereof) on, through, or by means of the Platform will infringe, misappropriate, or violate a third-party’s patent, copyright, trademark, trade secret, moral rights, or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation, and (iii) your User Content does not: (a) include any profane, obscene, defamatory, discriminatory, threatening, menacing, harassing, or violent content; (b) depict or suggest nudity or sexual acts; (c) promote hatred, including against members of a protected group under federal, state, or local law (such as, for example, a group defined by race, gender, or national origin); (d) objectively shock or disgust; (e) depict or suggest presently occurring illegal activity; (f) include unlicensed proprietary content of a third party, including, e.g., third-party content protected by copyright or trademark for which you do not have a license; (g) breach any duty of confidentiality you may have to a third party (e.g., discloses private information about a third party without consent); (h) present a message that is contrary to Curatess’ mission; or (i) violate any federal, state or local laws, rules or regulations.  In addition, you agree to indemnify us for any violation of the Agreement in accordance with the Indemnity provisions below. You also agree that we may, but has no obligation to, review or monitor this User Content and may remove or alter any materials that you submit in its sole discretion at any time for any reason.

 

15.           Protected Health Information

Under the terms of a Right to Access Agreement, Curatess and each User Entity and their respective staff agree to comply with all federal and state laws and regulations, and all rules, regulations, and policies of the other party, regarding the confidentiality of protected health information, to include, without limitation, HIPAA and HITECH, and otherwise agree to enter into a business associate contract. In this respect, the terms of the Right to Access Agreement and any corresponding business associate contract by and between us and the User Entity that has given you the authority to access the Platform governs how protected health information inputted into the Platform by you is treated.

16.           Third Party Content

16.1    General. The Platform may contain or display various materials and content from third parties associated with the Telehealth Solution (“Third Party Materials”). The display on or through the Platform of such Third Party Materials does not in any way imply, suggest, or constitute any sponsorship, endorsement, or approval by us of any third party or any affiliation between any such third party and us. Furthermore, in using and accessing the Platform, you agree that we are in no way responsible for the accuracy, timeliness, or completeness of Third Party Materials. Our display of specific Third Party Materials does not suggest a recommendation by us of the third party or any products, services, websites or plans offered. Your interaction with any third party accessed through the Platform (whether online or offline) is at your own risk, and we will have no liability with respect to the acts, omissions, errors, representations, warranties, breaches or negligence of any such third party or for any personal injuries, death, property damage, or other damages or expenses resulting from your interactions with the third party.

16.2   Third Party Links and References. The Platform may also contain references or links to Third Party Materials and websites not controlled by us. We provide such information and links solely as a convenience to you and such links and references should not be considered endorsements or recommendations of such sites or any content, products or information offered on such sites. You acknowledge and agree that we are not responsible for any aspect of the information or content contained in any third party materials or on any third party sites accessible or linked from the Platform. You agree that we are not responsible for any injury, harm, damages, or negative experience you may encounter by accessing, visiting, or using such Third Party Materials. If you access, visit, or use any Third Party Materials referred to on the Platform, you do so at your own risk.

17.           Disclaimers

1.1              ELECTRONIC MEDICAL RECORDS Disclaimer.  ALL INFORMATION REGARDING THE ELECTRONIC MEDICAL RECORDS OF PATIENTS IS BASED ON INFORMATION PROVIDED TO USERs BY THIRD-PARTY HEALTHCARE PROVIDERS AND SERVICE ENTITIES THROUGH THE PLATFORM.  WE CANNOT GUARANTEE THAT THE INFORMATION IS ACCURATE, AND WE ARE NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS.

1.2               “AS IS” DISCLAIMER.  You expressly agree that access to and use of OUR Platform IS at your sole risk.  OUR Platform is provided on an “as is” and an “as available” basis.  WE do not make, and hereby disclaim, any representations or warranties, express, implied, or statutory, regarding (a) OUR TELEHEAlTH SOLUTION, INcluding our Platform; and (b) any products and services offered through OUR Platform or as part of the telehealth solution, or any portion thereof, including (without limitation) implied warranties of merchantability, fitness for a particular purpose, title, non-infringement of third party rights, and any warranties arising by course of dealing or custom of trade.  WE make no representation or warranty that any material, content, products, or services displayed on or offered THROUGH OUR Platform are accurate, complete, appropriate, reliable, or timely.  WE also make no representations or warranties that OUR Platform will meet your requirements, or that your access to and use of OUR Platform will be uninterrupted or error-free, free of viruses, malicious code, or other harmful components, or otherwise will be secure.  YOU EXPRESSLY ACKNOWLEDGE THAT THE TELEMEDICINE SOLUTION, OR ANY PART THEREOF, IS BEING PROVIDED BY SUPPLIER SIMPLY AS A TOOL FOR COMMUNICATION AND IT IS NOT BEING PROVIDED BY SUPPLIER TO CUSTOMER OR AN END USER FOR THE MEDICAL ADVICE THAT CUSTOMER OR AN END USER MAY PROVIDE TO PATIENTS, OR A THIRD-PARTY MAY PROVIDE TO CUSTOMER AND/OR AN END USER AND/OR THEIR PATIENTS, THROUGH USE OF IT. IN THIS RESPECT, SUPPLIER DISCLAIMS ANY RESPONSIBILITY WHATSOEVER FOR ANY MEDICAL ADVICE THAT MAY BE PROVIDED BY CUSTOMER OR AN END USER OR A THIRD-PARTY THROUGH USE OF THE TELEMEDICINE SOLUTION BY CUSTOMER OR END USER. 

1.3              Some jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above exclusions may not apply to you.

1.4              USER ACKNOWLEDGEMENT REGARDING NO USE OF THE PLATFORM OR CURATESS TECHNOLOGY FOR CRITICAL CONTROL APPLICATIONS.  USER ACKNOWLEDGES AND AGREES THAT THE TELEMEDICINE SOLUTION, OR ANY PART THEREOF, IS NOT FAULT TOLERANT AND IS NOT DESIGNED OR INTENDED FOR USE OR LICENSING AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS OR “LIFE AND DEATH” ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE TELEMEDICINE SOLUTION, OR ANY PART THEREOF, COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, I.E. “CRITICAL CONTROL APPLICATIONS”.  USER SHALL BE SOLELY RESPONSIBLE FOR, AND SHALL INDEMNIFY AND HOLD CURATESS HARMLESS FOR ANY USE OR INCORPORATION OF THE TELEMEDICINE SOLUTION, OR ANY PART THEREOF, INTO USER’S PRODUCTS PERFORMING ANY CRITICAL CONTROL APPLICATIONS.

18.           Limitation of Liability

To the maximum extent permitted by applicable law and notwithstanding any other provision of this Agreement, in no event shall CURATESS or any of its affiliates, partners, officers, employees, agents, contractors, successors, or assignees be liable to you (including any of your partners, officers, employees, agents, contractors, successors, or assignees) for any indirect, special, incidental, exemplary, punitive, or consequential damages, whether arising in contract, equity, tort, or otherwise (including breach of warranty, negligence, and strict liability in tort), including, without limitation, damages arising from delay, loss of goodwill, loss of or damage to data, interruption in use or availability of data, loss of use of money or use of products, lost profits, revenue or savings (actual or anticipated), or other economic loss ensuing from or in connectiON with (a) THE TELEHEALTH SOLUTION, including the Platform; or (b) any products and services offered through the TELEHEALTH SOLUTION, INCLUDING THE PLATFORM, or any portion thereof, even if WE or any of OUR affiliates haVE been advised of the possibility of such damages.  These limitations shall apply notwithstanding the failure of the essential purpose of any limited remedy.

if, Despite the foregoing limitation of liability for damages, a court or other tribunal of competent jurisdiction decides to award monetary damages to you for any claim or cause of action arising from the same, the amount of monetary damages for such claim or cause of action shall be no greater than one hundred U.S. dollars ($100).

19.           Indemnity

You understand and agree that you are personally responsible for your behavior in connection with the TELEHEALTH SOLUTION AND USE OF the PLATFORM.  You agree to indemnify, defend, and hold US harmless, OUR parents, subsidiaries, and affiliates, and OUR and their respective directors, officers, partners, employees, agents, contractors, successors, and assigns from and against all claims, demands, lawsuits, damages, liabilities, losses, costs, or expenses (including, but not limited to, reasonable fees and disbursements of counsel and court costs), judgments, settlements, and penalties of every kind arising from or relating to any violation of this agreement and any activity related to your use of the TELEHEALTH SOLUTION, INCLUDING THE PLATFORM.

 

20.           Copyright Infringement

We take copyright violation very seriously and will vigorously protect the rights of legal copyright owners.  We may remove material from the Platform that appears in our sole discretion to infringe upon the intellectual property rights of others and we will terminate the access rights of any repeat infringer.  If you believe a work protected by a U.S. copyright you own has been posted on this Platform without authorization, you may notify our copyright agent, and provide the following information:

(a)   a physical or electronic signature of the person authorized to act on behalf of the copyright owner;

(b)   identification of the copyrighted work or works claimed to have been infringed;

(c)   a detailed description of the material you claim is infringing, together with information sufficient to enable us to locate it, including the URL where the infringing material appears;

(d)   your name, mailing address, telephone number, and e-mail address;

(e)   a statement by you that you believe in good faith belief that the copyrighted material identified is being used in a manner that is not authorized by the copyright owner, its agent or the law; and

(f)    a statement by you that the above information is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of the copyright allegedly infringed.

To notify Curatess of claimed copyright infringement, please contact us at:

665 West North Ave, Suite 500 Lombard, IL 60148

info@curatess.com

21.           Modifications and Updates

At any time and at our sole discretion, we may add, delete, or modify the Agreement or the Platform or any functionality provided through the Platform or the App or the Portal without liability to you.  If we materially modify these terms, we will make reasonable efforts to notify you of the change. For example, we may send a message to your email address, if we have one on file, or generate a pop-up or similar notification when you access our Platform via the App or the Portal for the first time after such material changes are made. No modifications to this Agreement will apply to any dispute between you and us that arose prior to the date of such modification. Your use of our Platform after modifications to this Agreement become effective constitutes your binding acceptance of such changes. If you are dissatisfied with the terms of this Agreement, then you agree that your sole and exclusive remedy is to discontinue any use of the Platform.

We may also from time to time provide enhancements or improvements to the features and/or functionality of the Platform or the App or the Portal, which may include patches, bug fixes, updates, upgrades, and other modifications (“Updates”). All Updates are subject to the terms and conditions of this Agreement, including the Master Agreement.  Updates may modify or delete certain features and/or functionalities of the Platform.  You acknowledge and agree that we have no obligation to (i) provide any Updates; or (ii) continue to provide or enable any particular features and/or functionalities, except as expressly provided in the Master Agreement.

22.           Warranty

Equipment purchased as part of the Telehealth Solution is covered by a limited warranty on defects in materials and workmanship under normal use as provided in the Right to Access Agreement.

23.           Access and Use Where Prohibited

Access to and use of the Platform are unauthorized in any jurisdiction that does not give effect to all provisions of the Agreement, including this Section.

24.           International Use

This Platform is hosted from the United States, and our corporate office and activities are located in and directed from the United States.  Accordingly, if you access this Platform from outside the United States, your information may be transferred to and maintained on computers and servers located outside of your state, province, country, or other governmental jurisdiction where the privacy laws may not be as protective as those in your jurisdiction.  Your consent to the Agreement followed by your submission of such information represents your agreement to the transfer of such information to the United States and the collection, use, and disclosure of your information in accordance with United States law and our Privacy Policy.

We make no representation that the Platform or any aspect thereof will be available or appropriate for use in locations outside of the United States.  Those who choose to access the Platform from locations outside the United States do so at their own risk and are responsible for compliance with local laws and regulations.  Users are responsible for compliance with all United States export laws and regulations when exporting any products, services, content, or materials provided through the Platform.

25.           Dispute Resolution and Binding Arbitration

25.1              Initial Dispute Resolution Process.  We intend to resolve any and all disputes that may arise between us and our Users in a cost-effective and non-disruptive manner, preferably without the time and expense of litigation.  Toward this end, you agree to the following dispute resolution procedure.  If you are unable to resolve any dispute in the ordinary course of business, you shall send a written notice to us in which you outline the issues in dispute, enclose any relevant documents, and state the requested relief.  We shall respond within ten (10) business days with identical information from its perspective.  You and one of our representatives shall meet or communicate electronically within ten (10) business days of the delivery of the response, and as often as you and we mutually deem necessary or desirable thereafter, in an attempt to resolve the matter.  If, within sixty (60) days of the first communication, we fail to resolve the matter, you may then proceed to arbitration as described in Section 25.2 below.

25.2              Arbitration.  After failing to mutually settle any disputes as required in Section 24.1, and except for equitable claims, small claims court, and claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret, any controversy or claim arising out of or relating to this Agreement or the Service provided hereunder shall be submitted to and settled through binding arbitration.

a. The arbitration will be conducted in accordance with this Agreement, the Federal Arbitration Act and the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA Rules”). In the event of a conflict, the provisions of the AAA Rules will control, except where those Rules conflict with this Agreement, in which case this Agreement will control.

b. The arbitration shall be conducted before a single arbitrator selected as provided in the AAA Rules and who shall have at least five (5) years of relevant experience. The arbitration shall be commenced and held in the State of _Illinois. No potential arbitrator may be appointed unless he or she has agreed in writing to be bound by these procedures.

c. To the extent state law is applicable, the arbitrator shall apply the substantive law of the State of Illinois. The U.N. Convention on Contracts for the International Sale of Goods shall not apply.  Any issue concerning the location of the arbitration, the extent to which any dispute is subject to arbitration, the applicability, interpretation, or enforceability of these procedures, including any contention that all or part of these procedures are invalid or unenforceable, and any discovery disputes, shall be resolved by the arbitrator.

d. Each party will be entitled to reasonable discovery in preparation for the arbitration, including the production of relevant documents and the deposition of witnesses. Any disputes involving discovery shall be heard and resolved by the arbitrator.  All objections are reserved for the arbitration hearing, except for objections based on privilege and proprietary or confidential information.

e. All aspects of the arbitration shall be treated as confidential and neither the parties nor the arbitrator may disclose the existence, content or results of the arbitration, except as necessary to comply with legal or regulatory requirements. Before making any such disclosure, a party shall give written notice to all other parties and shall afford such parties a reasonable opportunity to protect their interests.

f. The decision of the arbitrator shall be reduced to writing, shall be final and binding on the parties except for fraud, misconduct, or errors of law, and judgment upon the decision rendered may be entered in any court having jurisdiction thereof. The arbitrator may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of this Agreement.

g. The arbitrator shall award all costs of the arbitration, including arbitrator’s fees, arbitration filing fees, travel costs of witnesses, costs of depositions and reasonable attorney fees to the substantially prevailing party; provided, however, that if the User is the substantially prevailing party, the User shall bear the costs of its own attorney fees.

25.3              Class Action Waiver.  We each agree that any proceedings to resolve or litigate any dispute, whether through a court of law or arbitration, shall be solely conducted on an individual basis. You agree that you will not seek to have any dispute heard as a class action, representative action, collective action, private attorney general action, or similar action.

25.4              Wavier of Jury Trial.  THE PARTIES UNDERSTAND THAT BY ENTERING INTO THIS AGREEMENT, BOTH PARTIES ARE GIVING UP THEIR CONSTITUTIONAL RIGHT TO A JURY TRIAL AND, IF APPLICABLE, ANY RIGHTS THEY MAY HAVE TO BRING ANY CLAIMS ON A CLASS, REPRESENTATIVE, CONSOLIDATED OR MASS ACTION BASIS.

25.5              Injunctive Relief.  Nothing herein shall prevent either party from seeking immediate injunctive relief pursuant to the Emergency Measures of Protection procedures in the AAA Commercial Rules if, in its judgment, such relief is necessary to protect its interests prior to utilizing or completing this dispute resolution process.  Such remedy shall be in addition to all other remedies, including money damages, available to such party at law or in equity.  You also agree that any violation by you of this Agreement will constitute an unlawful and unfair business practice that will cause irreparable harm to us for which monetary damages would be inadequate.  You consent to our obtaining any injunctive or equitable relief that we deem necessary or appropriate in such circumstances, without the need for a bond.  These remedies are in addition to any other remedies we may have at law or in equity.

25.6              Limitations.  No action arising out of this Agreement or your access to or use of our Platform, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose) and you hereby waive any longer statute of limitations that may be permitted by law.

26.                  Miscellaneous.

26.1              Applicable Law and Venue.  Any action related to the Agreement will be governed by the laws of the State of Illinois, without regard to the choice or conflicts of law provisions of any jurisdiction. We each agree and consent that jurisdiction, proper venue, and the most convenient forums for all claims, actions, and proceedings of any kind relating to the Platform or the Agreement that are not submitted to arbitration will be exclusively in the federal or local courts with jurisdiction over Illinois.   If we do take any legal action against you as a result of your violation of the Agreement, we will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to us.  You agree that we will not be liable to you or to any third party for termination of your access to, or use of, the Platform as a result of any violation of the Agreement or for any reason at all.

26.2              Entire Agreement.  This Agreement (including the various Additional Terms incorporated herein by reference) constitute the entire agreement between you and Curatess, and supersedes any and all prior agreements, negotiations, or other communications between you and us, whether oral or written, with respect to the subject matter hereof, and, except as expressly provided herein, cannot be modified except in writing signed by both parties.

26.3              Severability.  In the event that any provision of this Agreement is held to be invalid or unenforceable, then: (a) such provision shall be deemed reformed to the extent strictly necessary to render such provision valid and enforceable, or if not capable of such reformation shall be deemed severed from this Agreement; and (b) the validity and enforceability of all of the other provisions hereof, shall in no way be affected or impaired thereby.

26.4              Waiver.  No failure or delay in enforcing any provision, exercising any option, or requiring performance, shall be construed to be a waiver of that or any other right in connection with the Agreement.

26.5              Assignment.  You may not assign, by operation of law or otherwise, any rights or delegate any duties under the Agreement to any third party, including in connection with a merger or change of control, without prior written consent by us.  Any purported assignment lacking such consent will be void at its inception.  We may assign all or part of its rights and/or delegate all or part of its duties under the Agreement to any party, at any time, and in its sole discretion, upon notice of assignment by posting such notice on the Platform.

27.                  Contacting Curatess

If you have any comments, questions, complaints or claims about our Platform or our Telehealth Solution, please contact us at 665 West North Ave, Suite 500 Lombard, IL 60148 or info@curatess.com or 844-873-8246

28.                  Other

This Agreement is accepted upon your use of the Platform and is further affirmed by you becoming a User of the Telehealth Solution.  The section titles in this Agreement are for convenience only and have no legal or contractual effect.

 

 

END USER LICENSE AGREEMENT:

USERS ACCESS THE TELEMEDICINE PLATFORM (“PLATFORM”) VIA A WEB-BASED PORTAL ON THE USER’S PC OR MAC DEVICE (“PORTAL”) OR THROUGH AN IOS/ ANDROID MOBILE APPLICATION DOWNLOADED TO THE USER’S MOBILE DEVICE VIA A WEB PORTAL DOWNLOAD OF A MOBILE APPLICATION (“APP”), THROUGH WHICH NURSES AND PHYSICIANS CAN CONNECT WITH REMOTE PATIENTS TO PROVIDE HEALTHCARE BY UTILIZING TARGETED FUNCTIONALITIES INCLUDING BUT NOT LIMITED TO MICROPHONE AND VIDEO COMMUNICATIONS AND ELECTRONIC MEDICAL RECORD ACCESSIBILITY.

PLEASE READ THE FOLLOWING CAREFULLY.  THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AS AN EMPLOYEE OF A USER ENTITY OF OUR TELEMEDICINE PLATFORM (“USER” OR “YOU”) AND CURATESS, LLC (“SUPPLIER”, “WE” OR “US”).

THE TERMS OF USE, TOGETHER WITH OUR PRIVACY POLICY AND ALL APPLICABLE AGREEMENTS, RULES AND POLICIES (“ADDITIONAL TERMS”) AND THIS END USER LICENSE AGREEMENT CONSTITUTE THE “AGREEMENT” BETWEEN YOU AND US REGARDING YOUR MOBILE AND ONLINE EXPERIENCE.  BY ACCESSING OR USING THE TELEMEDICINE PLATFORM VIA THIS PORTAL OR APP, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS.

USER ENTITY” IS A COMPANY OR ANOTHER ENTITY THAT IS (I) OUR CUSTOMER PURSUANT TO A MASTER SERVICES AGREEMENT WITH US OR AN END USER OF OUR CUSTOMER PURSUANT TO A SEPARATE ACCESS AGREEMENT BETWEEN THE END USER AND CUSTOMER, OR (II) ANOTHER THIRD-PARTY THAT HAS ENTERED INTO A SEPARATE WRITTEN AGREEMENT WITH US FOR ACCESS TO THE TELEMEDICINE PLATFORM IN ORDER TO PROVIDE A THIRD-PARTY SERVICE TO OUR CUSTOMER.   IN EACH CASE, THE MASTER SERVICES AGREEMENT OR SEPARATE WRITTEN AGREEMENT BETWEEN THE USER ENTITY AND US OR OUR CUSTOMER SHALL BE REFERRED TO AS THE “RIGHT TO ACCESS AGREEMENT”.

YOU ALSO REPRESENT AND WARRANT TO US THAT (I) YOU ARE NOT LOCATED IN A COUNTRY THAT IS SUBJECT TO A U.S. GOVERNMENT EMBARGO, OR THAT HAS BEEN DESIGNATED BY THE U.S. GOVERNMENT AS A “TERRORIST SUPPORTING” COUNTRY; AND II) YOU ARE NOT LISTED ON ANY U.S. GOVERNMENT LIST OF PROHIBITED OR RESTRICTED PARTIES.

IF YOU HAVE NOT READ THE AGREEMENT, DO NOT UNDERSTAND OR AGREE TO BE BOUND BY THE AGREEMENT, OR ARE NOT ABLE TO CONSENT TO BE BOUND BY THE AGREEMENT (E.G., IF YOU ARE NOT OLD ENOUGH TO ENTER INTO A BINDING LEGAL CONTRACT), DO NOT ACCESS THE PLATFORM VIA THIS PORTAL OR APP, AS APPLICABLE, OR USE OUR PLATFORM.

NOTE THAT DISPUTES ABOUT THIS AGREEMENT OR RELATING TO THE PLATFORM GENERALLY MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY.  See Section 5 of this End User License Agreement for more details.

1. License:

If you are accessing the Platform via a Portal or an App, subject to the terms of this Agreement, you are granted a limited, personal, non-exclusive, non-sublicensable, non-assignable, non-transferable, and revocable license to use the App and the Portal solely for your own personal use in accessing and using the Platform via a device in accordance with the license scope and use restrictions specified in the Right to Access Agreement, or this Agreement, including those set forth below, or any additional terms as may be specified at the time of the download of the App by the party that is operating the web portal through which the App is downloaded (i.e. Apple or Google).  Except as expressly provided, all rights are reserved.

The following shall apply with respect to Apple:

A. Acknowledgement: Each party acknowledges that this Agreement, including this end user license, is concluded between the two of us only, and not with Apple, and we, not Apple, are solely responsible for the Platform, and the content thereof, and/or any Access Software.

B. Maintenance and Support: We are solely responsible for providing any maintenance and support services with respect to the Platform and/or any Access Software. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Platform and/or any Access Software.

C. Warranty: In the event of any failure of the Platform or the Access Software to conform to any applicable warranties in this Agreement, you may notify Apple, and Apple will refund the purchase price for the Platform or the Access Software to you; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Platform and/or the Access Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be your sole responsibility.

D. Product Claims: We, not Apple, are responsible for addressing any your claims or any third party claims relating to the Platform or the Access Software or your possession and/or use of the Platform and/or the Access Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Platform and/or the Access Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

E. Intellectual Property Rights: In the event of any third party claim that the Platform and/or any Access Software or your possession and use of the same infringes a third party’s intellectual property rights, we, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

F. Third Party Beneficiary: You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this end user license, and that, upon your acceptance of the terms and conditions of this end user license, Apple will have the right (and will be deemed to have accepted the right) to enforce it against you as a third party beneficiary thereof.

2. Permitted Use:

You agree not to use the Platform or the App or Portal or any aspect or feature thereof for any unlawful purpose or in any way that might harm, damage, or disparage any other party. Without limiting the proceeding sentence, you agree that you will not do, or attempt to do, any of the following, unless expressly authorized by us to do so:

g.   alter or modify our Platform or the App or Portal, or make any electronic reproduction, adaptation, distribution, performance, or display of our Platform or the App or Portal, or any portion thereof, except to the extent required for the limited purpose of reviewing material on our Platform or through the App or the Portal;

h.   sell, rent, lease, transfer, distribute, broadcast, display, provide, or otherwise assign to any third party any rights to our Platform or the App or the Portal, or related materials, other than your authorized use of the features of the Telehealth Solution that you have fully paid for, in accordance with all applicable terms and conditions;

i.   remove or modify any proprietary notice or labels on our Platform or the App or the Portal, or related materials, including author attribution and copyright notices, or use any of our trademarks as meta-tags on any other website or application;

j.   use our Platform or the App or the Portal for any non-authorized commercial purpose or any illegal purpose, including any comparative or competitive research purposes;

k.   copy, modify, erase, or damage any information contained on computer servers used or controlled by us or any third party;

l.   use our Platform or the App or the Portal to violate any legal right of any third party, including any publicity or privacy right, copyright, or other intellectual property right, or to take any action that is harassing, libelous, defamatory, abusive, tortious, threatening, harmful, or otherwise objectionable;

m.   access or use any password-protected, secure, or non-public areas of our Platform, or access data on our Platform not intended for you, except as specifically authorized in writing by us;

n.   impersonate or misrepresent your affiliation with any person or entity;

o.   use any automated means to access or use our Platform or the App or the Portal, including scripts, bots, scrapers, data miners, or similar software, or display our Platform or the App or the Portal, or portions thereof, in things (e.g., framing, scraping, etc.), without our express written permission;

p.   attempt to or actually disrupt, impair, interfere with, alter, or modify our Platform or the App or the Portal, or any information, data, or materials posted and/or displayed by us;

q.   attempt to probe, scan, or test the vulnerability of our Platform or the App or the Portal or breach any implemented security or authentication measures, regardless of your motives or intent; or

r.   undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of all or part of our Platform or the App or the Portal or any other part thereof, except and solely to the extent permitted by law, or otherwise attempt to use or access any of our Platform or the App or the Portal other than as intended; or

s.   attempt to interfere with or disrupt access to or use of our Platform or the App or the Portal by any User, processor, host, or network, including, without limitation, by submitting a virus, worm, Trojan horse, or other malicious code; or

 

t.   post any content to the Platform or the App or the Portal that: (i) includes any profane, obscene, defamatory, discriminatory, threatening, menacing, harassing, or violent content; (ii) depicts or suggests nudity or sexual acts; (iii) promotes hatred, including against members of a protected group under federal, state, or local law (such as, for example, a group defined by race, gender, or national origin); (iv) is objectively shocking or disgusting; (v) depicts or suggests presently occurring illegal activity; (vi) includes unlicensed proprietary content of a third party, including, e.g., third-party content protected by copyright or trademark for which you do not have a license; (vii) breaches any duty of confidentiality you may have to a third party (e.g., discloses private information about a third party without consent); or (viii) is contrary to Curatess’ mission; or

u.   use the Telehealth Solution in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations.

3.         Warranty Disclaimer:

YOU EXPRESSLY AGREE THAT ACCESS TO AND USE OF THE APP OR THE PORTAL IS AT YOUR SOLE RISK. THE APP AND THE PORTAL, AS APPLICABLE, IS PROVIDED ON AN “AS IS” AND AN “AS AVAILABLE” BASIS. WE DO NOT MAKE, AND HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE APP OR THE PORTAL, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE. WE MAKE NO REPRESENTATION OR WARRANTY THAT THE APP OR THE PORTAL WILL MEET YOUR REQUIREMENTS, OR THAT YOUR ACCESS TO AND USE OF THE APP OR THE PORTAL WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF VIRUSES, MALICIOUS CODE, OR OTHER HARMFUL COMPONENTS, OR OTHERWISE WILL BE SECURE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

YOU ACKNOWLEDGE AND AGREE THAT THE APP AND THE PORTAL, OR ANY PART THEREOF, IS NOT FAULT TOLERANT AND IS NOT DESIGNED OR INTENDED FOR USE OR LICENSING AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS OR “LIFE AND DEATH” ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE TELEMEDICINE SOLUTION, OR ANY PART THEREOF, COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, I.E. “CRITICAL CONTROL APPLICATIONS”. YOU SHALL BE SOLELY RESPONSIBLE FOR, AND SHALL INDEMNIFY AND HOLD US HARMLESS FOR ANY USE OR INCORPORATION OF THE APP OR THE PORTAL, OR ANY PART THEREOF, INTO YOUR PRODUCTS PERFORMING ANY CRITICAL CONTROL APPLICATIONS.

4.         Limitation on Liability: 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL WE OR ANY OF ITS AFFILIATES, PARTNERS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS, OR ASSIGNEES BE LIABLE TO YOU (INCLUDING ANY OF YOUR PARTNERS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS, OR ASSIGNEES) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN CONTRACT, EQUITY, TORT, OR OTHERWISE (INCLUDING BREACH OF WARRANTY, NEGLIGENCE, AND STRICT LIABILITY IN TORT), INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM DELAY, LOSS OF GOODWILL, LOSS OF OR DAMAGE TO DATA, INTERRUPTION IN USE OR AVAILABILITY OF DATA, LOSS OF USE OF MONEY OR USE OF PRODUCTS, LOST PROFITS, REVENUE OR SAVINGS (ACTUAL OR ANTICIPATED), OR OTHER ECONOMIC LOSS ENSUING FROM OR IN CONNECTION WITH THE APP OR THE PORTAL, EVEN IF WE OR ANY OF OUR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

IF, DESPITE THE FOREGOING LIMITATION OF LIABILITY FOR DAMAGES, A COURT OR OTHER TRIBUNAL OF COMPETENT JURISDICTION DECIDES TO AWARD MONETARY DAMAGES TO YOU FOR ANY CLAIM OR CAUSE OF ACTION ARISING FROM THE SAME, THE AMOUNT OF MONETARY DAMAGES FOR SUCH CLAIM OR CAUSE OF ACTION SHALL BE NO GREATER THAN ONE HUNDRED U.S. DOLLARS ($100).

YOU UNDERSTAND AND AGREE THAT YOU ARE PERSONALLY RESPONSIBLE FOR YOUR BEHAVIOR IN CONNECTION WITH THE APP OR THE PORTAL. YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD US HARMLESS, OUR PARENTS, SUBSIDIARIES, AND AFFILIATES, AND OUR AND THEIR RESPECTIVE DIRECTORS, OFFICERS, PARTNERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS, AND ASSIGNS FROM AND AGAINST ALL CLAIMS, DEMANDS, LAWSUITS, DAMAGES, LIABILITIES, LOSSES, COSTS, OR EXPENSES (INCLUDING, BUT NOT LIMITED TO, REASONABLE FEES AND DISBURSEMENTS OF COUNSEL AND COURT COSTS), JUDGMENTS, SETTLEMENTS, AND PENALTIES OF EVERY KIND ARISING FROM OR RELATING TO ANY VIOLATION OF THIS AGREEMENT AND ANY ACTIVITY RELATED TO YOUR USE OF THE APP OR THE PORTAL.

5.         Dispute Resolution and Binding Arbitration

5.1       Initial Dispute Resolution Process.  We intend to resolve any and all disputes that may arise between us and our Users in a cost-effective and non-disruptive manner, preferably without the time and expense of litigation.  Toward this end, you agree to the following dispute resolution procedure.  If you are unable to resolve any dispute in the ordinary course of business, you shall send a written notice to us in which you outline the issues in dispute, enclose any relevant documents, and state the requested relief.  We shall respond within ten (10) business days with identical information from its perspective.  You and one of our representatives shall meet or communicate electronically within ten (10) business days of the delivery of the response, and as often as you and we mutually deem necessary or desirable thereafter, in an attempt to resolve the matter.  If, within sixty (60) days of the first communication, we fail to resolve the matter, you may then proceed to arbitration as described in Section 5.2 below.

5.2       Arbitration.  After failing to mutually settle any disputes as required in Section 5.1, and except for equitable claims, small claims court, and claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret, any controversy or claim arising out of or relating to this agreement or the Service provided hereunder shall be submitted to and settled through binding arbitration.

The arbitration will be conducted in accordance with this agreement, the Federal Arbitration Act and the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA Rules”).  In the event of a conflict, the provisions of the AAA Rules will control, except where those Rules conflict with this agreement, in which case this agreement will control.

The arbitration shall be conducted before a single arbitrator selected as provided in the AAA Rules and who shall have at least five (5) years of relevant experience. The arbitration shall be commenced and held in the State of Illinois.  No potential arbitrator may be appointed unless he or she has agreed in writing to be bound by these procedures.

To the extent state law is applicable, the arbitrator shall apply the substantive law of the State of Illinois.  The U.N. Convention on Contracts for the International Sale of Goods shall not apply.  Any issue concerning the location of the arbitration, the extent to which any dispute is subject to arbitration, the applicability, interpretation, or enforceability of these procedures, including any contention that all or part of these procedures are invalid or unenforceable, and any discovery disputes, shall be resolved by the arbitrator.

Each party will be entitled to reasonable discovery in preparation for the arbitration, including the production of relevant documents and the deposition of witnesses.  Any disputes involving discovery shall be heard and resolved by the arbitrator.  All objections are reserved for the arbitration hearing, except for objections based on privilege and proprietary or confidential information.

All aspects of the arbitration shall be treated as confidential and neither the parties nor the arbitrator may disclose the existence, content or results of the arbitration, except as necessary to comply with legal or regulatory requirements.  Before making any such disclosure, a party shall give written notice to all other parties and shall afford such parties a reasonable opportunity to protect their interests.

The decision of the arbitrator shall be reduced to writing, shall be final and binding on the parties except for fraud, misconduct, or errors of law, and judgment upon the decision rendered may be entered in any court having jurisdiction thereof. The arbitrator may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of this agreement.

The arbitrator shall award all costs of the arbitration, including arbitrator’s fees, arbitration filing fees, travel costs of witnesses, costs of depositions and reasonable attorney fees to the substantially prevailing party; provided, however, that if the User is the substantially prevailing party, the User shall bear the costs of its own attorney fees.

5.3       Class Action Waiver.  We each agree that any proceedings to resolve or litigate any dispute, whether through a court of law or arbitration, shall be solely conducted on an individual basis. You agree that you will not seek to have any dispute heard as a class action, representative action, collective action, private attorney general action, or similar action.

5.4       Wavier of Jury Trial.  THE PARTIES UNDERSTAND THAT BY ENTERING INTO THIS AGREEMENT, BOTH PARTIES ARE GIVING UP THEIR CONSTITUTIONAL RIGHT TO A JURY TRIAL AND, IF APPLICABLE, ANY RIGHTS THEY MAY HAVE TO BRING ANY CLAIMS ON A CLASS, REPRESENTATIVE, CONSOLIDATED OR MASS ACTION BASIS.

5.5       Injunctive Relief.  Nothing herein shall prevent either party from seeking immediate injunctive relief pursuant to the Emergency Measures of Protection procedures in the AAA Commercial Rules if, in its judgment, such relief is necessary to protect its interests prior to utilizing or completing this dispute resolution process.  Such remedy shall be in addition to all other remedies, including money damages, available to such party at law or in equity.  You also agree that any violation by you of this agreement will constitute an unlawful and unfair business practice that will cause irreparable harm to us for which monetary damages would be inadequate.  You consent to our obtaining any injunctive or equitable relief that we deem necessary or appropriate in such circumstances, without the need for a bond.  These remedies are in addition to any other remedies we may have at law or in equity.

5.6       Limitations.  No action arising out of this agreement or your access to or use of our Platform, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose) and you hereby waive any longer statute of limitations that may be permitted by law.

6.         Miscellaneous:

6.1       Applicable Law and Venue.  Any action related to this agreement will be governed by the laws of the State of Illinois, without regard to the choice or conflicts of law provisions of any jurisdiction. We each agree and consent that jurisdiction, proper venue, and the most convenient forums for all claims, actions, and proceedings of any kind relating to the App or the Portal or the agreement that are not submitted to arbitration will be exclusively in the federal or local courts with jurisdiction over Illinois.   If we do take any legal action against you as a result of your violation of this agreement, we will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to us.  You agree that we will not be liable to you or to any third party for termination of your access to, or use of, the App or the Portal as a result of any violation of the agreement or for any reason at all.

6.2       Entire Agreement.  This agreement constitutes the entire agreement between you and us, and supersedes any and all prior agreements, negotiations, or other communications between you and us, whether oral or written, with respect to the subject matter hereof, and, except as expressly provided herein, cannot be modified except in writing signed by both parties.

6.3       Severability.  In the event that any provision of this agreement is held to be invalid or unenforceable, then: (a) such provision shall be deemed reformed to the extent strictly necessary to render such provision valid and enforceable, or if not capable of such reformation shall be deemed severed from this agreement; and (b) the validity and enforceability of all of the other provisions hereof, shall in no way be affected or impaired thereby.

6.4       Waiver.  No failure or delay in enforcing any provision, exercising any option, or requiring performance, shall be construed to be a waiver of that or any other right in connection with the agreement.

6.5       Assignment.  You may not assign, by operation of law or otherwise, any rights or delegate any duties under the agreement to any third party, including in connection with a merger or change of control, without prior written consent by us.  Any purported assignment lacking such consent will be void at its inception.  We may assign all or part of our rights and/or delegate all or part of our duties under the agreement to any party, at any time, and in our sole discretion.

 

 

 

Terms of Use/End User Agreement July 13, 2017




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665 West North Avenue
Suite 100
Lombard, IL 60148
Phone: 844-873-8246
Website: www.curatess.com
Email: info@curatess.com