This Agreement is a binding legal document between you and the PromptCare. YOUR USE OF THE SITE IS SUBJECT TO AN ARBITRATION PROVISION IN SECTION 10 OF THIS AGREEMENT, REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION. PLEASE CAREFULLY REVIEW SECTION 10 FOR MORE INFORMATION. Do not access or use the Site if you do not agree with all the terms and conditions herein. We may revise and update this Agreement from time to time without prior notice to you and will post the updated Agreement to the Site. ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Your continued use of the Site after the updated Agreement is posted to the Site constitutes your acceptance to be bound by any changes. You and PromptCare are referred to herein individually as a “Party” and jointly as the “Parties.”
- Nature of the Site
1.1 General. On the condition that you comply with all obligations under this Agreement, we hereby grant you a limited, non-exclusive, revocable, non-assignable, and non-transferable right to view and use the Site for your personal use only. We do not guarantee the accuracy of the Site. You agree not to remove, obscure, or modify any trademark legend, copyright notice, or other notice placed on or contained within the Site. We retain the right to revoke, disable, or deny access to the Site to any user for any reason. All rights not otherwise expressly granted by this Agreement are reserved to PromptCare. We reserve the right to modify the Site, in our sole discretion, at any time.
1.2 Restrictions. In addition to complying with terms and conditions herein, you will not (a) delete, modify, or attempt to change or alter any of Our Content or notices on the Site; (b) use the Site in a fraudulent or unlawful manner; (c) reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, or ideas upon which the Site are based; (d) use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on the Site for any reason; (e) use Our Content in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party; (f) transmit or upload any software viruses, malware, spyware or any other code, file or program that is designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment; or (g) use the Site or Our Content in the development, directly or indirectly, of any product, software or service that offers any functionality substantially similar to, or competitive with, the Site or our services.
- Proprietary Rights
2.1 Our Content. We strive to post accurate and up-to-date information on the Site. All written content prepared and posted by us, and the Site design, layout, look, appearance, and graphics, as well as any trademarks, service marks, and logos contained on the Site (“Our Content”) are owned by or licensed to us and are subject to copyright, trademark, and other intellectual property rights under the United States and foreign laws and international conventions. We grant you a limited, revocable, non-transferable right to use Our Content for your personal use only. We do not guarantee the accuracy of Our Content. We retain all ownerships rights, control, or licenses to Our Content. Except as expressly permitted by this Agreement, you and any other individual(s) are expressly prohibited from reproducing, duplicating, copying, publishing, selling or otherwise exploiting Our Content. We may terminate, in our sole discretion, your right to access or use Our Content for any reason we deem appropriate.
2.2 Copyright. The Site and Our Content are copyrighted as a collective work under United States copyright laws, and are protected by other applicable laws. Trademarks, logos, and service marks displayed on the Site are registered and/or unregistered trademarks of PromptCare, its licensors, content providers, or other third parties. You acknowledge that we are the exclusive owner of the Site and Our Content. Any unauthorized use of our intellectual property, including our marks, our copyrighted material, and our trade dress, is strictly prohibited and may be prosecuted to the fullest extent of the law.
2.3 Trademarks. “PromptCare,” “PromptCare Nutrition,” “PromptCare Cardiac Transitions,” “PromptCare Boston Home Infusion,” “PromptCare HomeTown Respiratory,” “PromptCare Specialty Pharmacy,” and any and all other PromptCare service names, product names, or logos are trademarks or service marks of PromptCare or its affiliates (collectively, the “Marks”). No right or license to use the Marks is granted under this Agreement, except that you shall have the limited right to use the Marks solely as they appear in the Site. You shall not use the Marks in advertising or promotional material nor shall you disclose PromptCare as a service provider to any third party, except for such disclosures required by federal, state or local government regulations, or as otherwise may be approved in advance and in writing by PromptCare. You shall not remove, alter or obscure any Marks or proprietary notices contained in the Site or other materials provided by PromptCare.
2.4 Feedback. Any comments, feedback, suggestions, ideas, or other submissions related to the Site (collectively “Feedback”) that you provide to us, you grant us an irrevocable, worldwide, fully-paid-up, and assignable right and license to the Feedback. We will be entitled to use, reproduce, disclose, publish, distribute, and otherwise exploit in any manner, all Feedback, without restriction and without compensating you in any way. We have no obligation to maintain any Feedback in confidence, or to respond to any Feedback.
- Compliance with Laws
You, your affiliates, or your authorized users shall use the Site in compliance with all applicable laws, statutes, ordinances, and regulations. You shall obtain any necessary licenses, certificates, permits, approvals, or other authorizations required by all laws, statutes, or regulations.
To maintain the security and privacy of the Site, we may, in our sole discretion, suspend or terminate, in whole or in part, your access to the Site if you violate this Agreement. We will not be liable to you or any other individual for the suspension or termination of your access to the Site.
- Disclaimer of Warranties
TO THE MAXIMUM EXTENT ALLOWED BY LAW, PROMPTCARE MAKES NO PROMISES ABOUT THE SITE AND OUR CONTENT. THE SITE AND OUR CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE (EVEN IF THAT PURPOSE IS KNOWN TO PROMPTCARE), MERCHANTABILITY, NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROMPTCARE DOES NOT REPRESENT OR WARRANT THAT THE SITE ARE COMPLETE OR FREE FROM ERRORS OR OMISSIONS OR THAT ALL DEFECTS SHALL BE CORRECTED, OR WILL BE AVAILABLE 24 HOURS PER DAY, 7 DAYS PER WEEK, AND DO NOT ASSUME, AND EXPRESSLY DISCLAIM, ANY LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS OR DAMAGE CAUSED BY ERRORS OR OMISSIONS IN, OR THE UNAVAILABILITY OF, THE SITE, WHETHER SUCH ERRORS OR OMISSIONS OR UNAVAILABILITY RESULT FROM NEGLIGENCE, ACCIDENT, OR OTHER CAUSE. PROMPTCARE MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE LEGALITY OR PROPRIETY OF THE USE OF THE SITE FOR ANY SPECIFIC PURPOSES. PROMPTCARE DOES NOT WARRANT THAT THE SITE SHALL MEET YOUR EXPECTATIONS OR REQUIREMENTS. WHILE THE MANUFACTURERS OR LICENSORS OF PRODUCTS MAY PROVIDE CERTAIN WARRANTIES AND OTHER TERMS AND CONDITIONS WITH RESPECT TO PRODUCTS, PROMPTCARE MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING PRODUCTS MANUFACTURED BY THIRD PARTIES.
- Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, PROMPTCARE AND ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ASSIGNEES, AND SUCCESSORS-IN-INTEREST (A) ARE NOT LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), HOWEVER ARISING (INCLUDING NEGLIGENCE), AND (B) WILL IN NO EVENT BE LIABLE TO YOU FOR ANY CLAIMS ARISING FROM OR RELATING TO YOUR USE OF THE SITE OR OUR CONTENT IN ANY AMOUNT. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITE OR OUR CONTENT WILL BE TO STOP USING THE SITE.
You shall indemnify, defend and hold PromptCare harmless from and against all claims, losses, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising from a claim, suit or proceeding brought against PromptCare by a third party arising out of or related to your, your affiliates, or your users’ (i) use or misuse of the Site or Our Content; (ii) provision of or PromptCare’s use of any Feedback or data you provide to PromptCare; (iii) breach of this Agreement; (iv) violation of any law or the rights of any third-party; and (v) negligence or willful misconduct.
- International Users
The Site can be accessed from countries around the world and may contain references to services or products not available in your country. We make no representations that the services or products are appropriate or available for use in locations outside of the United States of America. Those who access or use the Site from other countries do so at their own volition and are responsible for compliance with local law.
- Third-Party Websites
We are not responsible for the practices employed by any non-PromptCare operated website or service linked to or from the Site, including the information or content contained therein. A link to a third-party’s website should not be construed as an endorsement. We encourage you to investigate and ask questions before visiting such third-party websites and/or disclosing sensitive information to third-parties.
- Alternative Dispute Resolution
ANY DISPUTE, CLAIM, OR CAUSE OF ACTION IN ANY WAY RELATED TO THE SITE SHALL BE RESOLVED BY MANDATORY, CONFIDENTIAL, FINAL, AND BINDING ARBITRATION IN NEW PROVIDENCE, NEW JERSEY ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION. YOU AGREE THAT ALL DISPUTES SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A COURT OR JURY TRIAL AND ANY RIGHT TO LITIGATE OR ARBITRATE ANY CLAIM AS A CLASS ACTION, REPRESENTATIVE ACTION, OR CLASS ARBITRATION. ANY ARBITRATION AWARD SHALL BE LIMITED TO ACTUAL DAMAGES AND ATTORNEYS’ FEES. JURISDICTION FOR ANY APPEAL OF AN ARBITRATION AWARD IS APPROPRIATE ONLY IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. YOU AGREE AND ACKNOWLEDGE THAT ANY DISPUTE, INCLUDING THE FACT AND OUTCOME OF ARBITRATION, IS STRICTLY CONFIDENTIAL. YOU UNDERSTAND THAT THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE THAT YOU OR PROMPTCARE MAY ENFORCE. IF YOU DO NOT CONSENT TO THIS CLAUSE, YOU SHALL NOT USE THE SITE. THIS CLAUSE IS GOVERNED BY THE FEDERAL ARBITRATION ACT.
All notices required under this Agreement shall be sent to:
Attn: Van Anderson
41 Spring Street
New Providence, NJ 07974
You will not assign or transfer any rights or obligations under this Agreement without our prior written consent. A change in control constitutes an assignment under this Agreement.
If any provision, or part thereof, of this Agreement becomes or is declared invalid, illegal, or unenforceable in any respect under any law, such provision, or part thereof, shall be null and void, and deemed deleted from this Agreement. The validity, legality, and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired.
11.4. No Waiver
Any waiver is only valid to the extent expressly set forth in writing.
11.5. Governing Law
This Agreement is governed by and construed in accordance with the laws of the State of New Jersey, without giving effect to its conflict of law principles. Any litigation arising out of this Agreement shall be brought by either Party in a court of competent jurisdiction located in the State of New Jersey, and each Party hereby waives any defenses it may have before such courts based on a lack of personal jurisdiction or inconvenient forum. Each Party hereby expressly and irrevocably waives the right to a jury trial.
11.6. No Third-Party Beneficiaries
The Parties agree that this Agreement, including all terms incorporated by reference, are for the benefit of the entities executing such document(s) and are not intended to confer any rights or benefits on any third party, including any employee or client of either entity executing such document(s), and that there are no third-party beneficiaries as to this Agreement or any part or specific provision of this Agreement.
The following Sections shall survive the expiration or termination of this Agreement: §§ 1.2, 2, 4, 5, 6, 7, 10 and 11.