Last Updated: June 2010
HealthATM, Inc. (“Company”) provides you access to the HealthATM™ website, available at the entry point URL www.healthatm.com (the “Site”), and to the information and other materials available on and through the Site subject to your compliance with the following terms and conditions (the “Terms and Conditions”). This is a legal agreement between you and Company. Please review the Terms and Conditions carefully before proceeding with your use and/or registration with the Site.
1. YOUR ACCEPTANCE
By visiting, using and/or registering with the Site, you signify your agreement to be bound by these Terms and Conditions and the terms and conditions of the HealthATM website Privacy Policy, which is available at https://www.healthatm.com/privacy_out.php, and which is hereby incorporated in these Terms and Conditions by reference. If you do not agree with the Terms and Conditions or any portion thereof, DO NOT USE OR REGISTER WITH THIS SITE. By visiting, using and/or registering with the Site you represent and warrant that you are at least eighteen (18) years of ages and that you have the legal right and authority to enter into the Terms and Conditions.
2. COMPANY PRODUCTS & SERVICES
The Site provides registered users (“User(s)”) with an online Personal Health Record (“PHR”) where a User can electronically (i) store health care and medical information, personal documentation, and other materials, (ii) access such information at any time and anywhere that Internet access is available and (iii) provide access to such information to authorized emergency and critical care providers (“Providers”) who are registered with the Site and who are treating the User (collectively, the “Services”).
3. NOT MEDICAL ADVICE, DIAGNOSIS, AND/OR TREATMENT
Company provides the Site, Services and Content to Users and Providers for informational purposes only. THE SITE AND SERVICES ARE NOT INTENDED TO BE, AND ARE NOT, A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS AND/OR TREATMENT. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY SEEKING SUCH ADVICE BASED UPON ANY CONTENT PROVIDED ON THE SITE OR THROUGH THE SERVICES. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition.
If you think you may have a medical emergency, call your physician or 911 immediately.
4. LICENSE TO SITE AND SERVICES
Company hereby grants you a non-exclusive, non-transferable, non-sublicensable right and license to access and use the Site and Services for your personal, non-commercial use in accordance with these Terms and Conditions. As a condition for your access and use of the Site and Services, you shall not: (i) attempt to access information that is not otherwise made available to you through the Site or Services; (ii) copy, sell, reproduce, publish, modify, create derivative works from, or otherwise exploit for any commercial purposes any portion of the Site or Services other than as expressly permitted under these Terms and Conditions; (iii) use any high-volume, automated, or electronic means to access the Site (including without limitation robots, spiders or scripts); (iv) use Company’s name, the Site URL, Company’s trademarks, server, or other materials in connection with, or to transmit, any mass unsolicited communications or advertisements via e-mail (i.e., “spam”); (v) frame the Site, place pop-up windows over its pages, or otherwise affect the display of its pages; and (vi) use the Site or Services to obtain the identity of or obtain any personal information about other Users without their express permission.
In addition, you agree not to post, upload, or transmit to the Site or to any Company servers any communications, text, graphics or other information (collectively, “Unauthorized Content”) that: (a) is obscene, fraudulent, indecent, or that defames, abuses, harasses, or threatens others; (b) contains any viruses, Trojan horses, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to or that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information; (c) advocates or encourages any illegal activity; (d) infringes on the copyright, patent, trademark, trade secret, right of publicity, or other intellectual property or proprietary right of any third party; (e) violates the privacy of individuals, including, but not limited to, other Users; or (f) violates any applicable local, state, national or international law.
5. REGISTRATION & RELEASE
User Registration. In order to use the Services, you will need to register for a user account with the Site. Under a user account, you may provide, or have third parties provide on your behalf, personally identifiable and other health care information to Company (“User PHR”). Please see the HealthATMSM website Privacy Policy at https://www.healthatm.com/privacy_out.php for additional information regarding your and Company’s obligations regarding your User PHR. By providing information in your User PHR, you grant to Company a perpetual, worldwide, royalty-free license to use, reproduce, display, publish, transmit and distribute such information in connection with the operation of the Services. The foregoing license includes the right for Company to provide access to your User PHR to Providers who are permitted such access pursuant to the terms of the Privacy Policy.
You are solely responsible for (i) maintaining the confidentiality of your LOGIN identification and password, and (ii) the information contained in your User PHR, including BUT NOT LIMITED TO the accuracy AND COMPLETENESS of any such information. You acknowledge and agree that Company, its officers, directors, agents, and employees shall not be liable for losses or damages arising from your failure to maintain the confidentiality of your login identification and password or from your errors or omissions in providing data in your user phr.
FURTHERMORE, you hereby release COMPANY, its agents, OFFICERS, DIRECTORS and employees, and the providers from, and waive your rights to, any and all claims, demands and damages (DIRECT, INDIRECT and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the accuracy or inaccuracy or completeness or incompleteness of your user phr as provided by you to company.
You, having the specific intent to release all claims and potential claims described in the foregoing paragraph, hereby acknowledge and expressly waive the provisions of § 1542 of the California Civil Code, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” Notwithstanding the provisions of § 1542 of the California Civil Code, you intend to release all claims described in the foregoing paragraph, whether now existing or hereafter arising, known or unknown, and asserted or not asserted as of the date hereof.
Provider Registration. If you are a Provider, you will need to register for a Provider account in order to use the Site to access the User PHR of a patient that you are treating. In registering for an Provider account, Company may request that you provide personally identifiable information to Company (“Provider Information”). Please see the HealthATM™ website Privacy Policy at https://www.healthatm.com/privacy_out.php for additional information regarding your and Company’s obligations regarding your Provider Information. You are solely responsible, and company assumes no liability, for maintaining the confidentiality of your LOGIN identification and password.
You warrant and represent that (i) your Provider Information is true and accurate and (ii) you will not access any User PHR without the permission of the individual User or unless you are legally authorized to treat such User (e.g., in the case of an emergency). You understand and acknowledge that individual Users provided and/or approved the information in their User PHR and ARE RESPONSIBLE FOR THE ACCURACY AND COMPLETENESS OF their user phr, and that Company is not responsible or liable for any information contained in the User PHR. you agree that any user phr you access is for informational purposes only and that such information is not intended to, nor does it, replace your responsibility to provide independent medical assessment, diagnosis and treatment of the user.
you hereby release COMPANY, its agents, OFFICERS, DIRECTORS and employees, from, and waive your rights to, any and all claims, demands and damages (DIRECT, INDIRECT and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the accuracy or inaccuracy or completeness or incompleteness of any user phr.
You, having the specific intent to release all claims and potential claims described in the foregoing paragraph, hereby acknowledge and expressly waive the provisions of § 1542 of the California Civil Code, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” Notwithstanding the provisions of § 1542 of the California Civil Code, you intend to release all claims described in the foregoing paragraph, whether now existing or hereafter arising, known or unknown, and asserted or not asserted as of the date hereof.
6. INTELLECTUAL PROPERTY RIGHTS
All content on the Site, including but not limited to code, films, images, text, layouts, arrangements, displays, illustrations, audio and video clips, HTML, files, other mark-up languages, and all scripts within the Site (collectively, the “Content”), and the Software (as defined below) are owned by or licensed to Company and are protected by copyright, trademark, patent and other proprietary intellectual property rights under United States and foreign laws and international conventions. Notwithstanding the foregoing, the personal information contained in any User PHR is the property of the individual User and Company claims no right of ownership to such personal information. Company grants you a non-exclusive, non-transferable, non-sublicensable limited right to access, use and display the Content and Software in connection with your use of the Site and Services and pursuant to these Terms and Conditions. The term “Software” includes all software incorporated into the Services or required to run the Site and/or the Services, and includes all Software licensed to Company by third party licensors.
Except as expressly permitted in these Terms and Conditions, you may not copy, sell, display, reproduce, publish, modify, create derivative works from, transfer, distribute or otherwise commercially exploit in any manner the Content or Software. You may not reverse-engineer, decompile, disassemble or otherwise access the source code for the Software.
Company logos, trademarks and service marks which may appear on the Site (“Marks”), are the property of Company and are protected under United States and foreign laws and international conventions. All other trademarks, service marks and logos used on this Site, with or without attribution, are the trademarks, service marks or logos of their respective owners. In addition, elements of the Site are protected by trade dress and other federal and state intellectual property laws and may not be copied, reproduced, downloaded or distributed in any way in whole or in part without the express written permission of Company.
Company and its licensors reserve all rights not expressly granted in and to the Site, Services, Content, Marks, and Software.
7. LINKS TO THIRD PARTY SITES
This Site may contain links to pages on other web sites (“Linked Site”), and those Linked Sites may offer products and/or services for sale or provide medical or other advice. Company’s provision of any Linked Site is for your convenience only. The fact that we have linked to any Linked Site does not create or imply any relationship or partnership with the operator of such Linked Site. Company does not author, edit, control, or monitor any Linked Site. You acknowledge and agree that Company has no responsibility for the accuracy or availability of information provided by Linked Site and that Company does not control or endorse the sponsors of such Linked Site or the content, products, advertising, advice or other materials presented on such Linked Site. Company may remove any links to Linked Sites at any time for any reason or for no reason.
YOUR USE OF LINKED SITES IS AT YOUR OWN RISK AND SUBJECT TO TERMS AND CONDITIONS OF USE FOR SUCH LINKED SITES. YOU AGREE THAT THE COMPANY WILL NOT BE LIABLE FOR ANY TRANSACTIONS conducted BY YOU WITH THIRD PARTIES OR ANY LIABILITY ARISING FROM the representations OR INFORMATION PROVIDED on such Linked Sites. COMPANY is not and shall not be responsible for (I) the terms and conditions of any transaction between you and any third party, (II) any insufficiency of or problems with any such third party’s background, insurance, credit or licensing, (III) the quality of services performed by any such third party or any other legal liability arising out of or related to the performance of such services, OR (IV) any content on the third party sites, the quality of any product sold by any such third party, THE ACCURACY OF ANY ADVICE GIVEN BY SUCH THIRD PARTY, or any other legal liability arising out of or related to products sold OR ADVICE GIVEN by such third party, including, BUT NOT LIMITED TO, any product liability.
8. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE, SERVICES AND CONTENT IS AT YOUR SOLE RISK AND RESPONSIBILITY. THE SITE, SERVICES AND CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING (BUT NOT LIMITED TO) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS AND CONDITIONS AND WITHOUT LIMITING THE FOREGOING PARAGRAPH, COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, MAKE NO REPRESENTATIONS OR WARRANTIES (I) THAT THE SITE, SERVICES OR CONTENT WILL BE AVAILABLE AT ALL TIMES; (II) THAT THE SITE, SERVICES OR CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE, (III) THAT DEFECTS IN OR TO THE SITE, SERVICES, OR CONTENT WILL BE CORRECTED, (IV) THAT THE SITE, THE SERVER THAT MAKES THE SITE AVAILABLE, OR THE SOFTWARE ARE FREE OF VIRUSES, BUGS OR OTHER HARMFUL COMPONENTS, (V) AS TO THE ACCURACY, RELIABILITY, AVAILABILITY, COMPLETENESS, CURRENCY OR TIMELINESS OF THE SITE, SERVICES, OR CONTENT, OR (VI) REGARDING SATISFACTION OF GOVERNMENT REGULATIONS REQUIRING DISCLOSURE OF INFORMATION ON PRESCRIPTION DRUG PRODUCTS WITH REGARD TO CONTENT ON THE SITE, INCLUDING, BUT NOT LIMITED TO, CONTENT ON ANY HEALTH FORUMS OR BLOG SPACE. YOU (AND NOT COMPANY) ARE SOLELY RESPONSIBLE FOR ALL USER PHR AND/OR PROVIDER INFORMATION, AS APPLICABLE, AND YOU ASSUME THE ENTIRE RISK OF ANY RELIANCE BY ANOTHER PARTY ON YOUR USER PHR, THE SITE, SERVICES OR CONTENT.
Although Company attempts to ensure the integrity of the Site, it makes no guarantees whatsoever as to the correctness or accuracy of the Site and it is possible that the Site could include typographical errors or inaccuracies. In the event that an inaccuracy arises, however, please inform Company so that we can attempt to correct the information available on the Site.
9. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL COMPANY, ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, LICENSORS, SUPPLIERS OR AFFILIATES BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR PERSONAL INJURY, INCLUDING DEATH, DAMAGE TO PROPERTY, LOSS OF REVENUES, LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE, SERVICES, OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY, ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, LICENSORS, SUPPLIERS OR AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In NO EVENT SHALL the aggregate liability of Company for any and all claims arising from your use of the Site, SERVICES OR CONTENT exceed the lesser of (i) fees paid by you to Company during the twelve (12) months immediately prior to the event giving rise to such claim or (ii) fifty U.S. dollars ($50).
10. EXCLUSIONS AND LIMITATIONS
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that Company may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Company’s liability shall be the minimum permitted under such applicable law.
11. INDEMNITY
You agree to indemnify, defend and hold Company, its affiliates, officers, directors, agents, licensors, suppliers and employees harmless from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys' fees and court costs) made by a third party due to or arising from (1) information in your User PHR and any information you (or anyone accessing the Site using your password) submit, post or transmit through the Site, (2) your (or anyone accessing the Site using your password) use of the Site or Services, or (3) your (or anyone accessing the Site using your password) violation of the Terms and Conditions.
12. MODIFICATIONS
Company reserves the right, at its sole discretion, to change, update or modify the Terms and Conditions at any time. The Terms and Conditions shall not be modified except in writing, as posted on this Site by Company. We encourage you to review this Privacy Policy from time to time. Any change, update or modification made by Company will be effective immediately upon posting on the Site. When we make any such material change, update or modification, we will notify you in this space, by placing a notice on the home page of the Site, and/or by placing a notice within your User PHR. Your continued use of the Site and Services after any changes, updates or modifications to the Terms and Conditions are posted will constitute your acceptance of the same. If you object to any changes or modification made by Company, your sole recourse shall be to cease using the Site and Services. You agree that COMPANY shall not be liable to you or to any third party for any change, UPDATE or modification to the Terms and Conditions.
13. TERMINATION
You agree that Company, at its sole discretion, may terminate your use of the Site, and remove and discard your account and User PHR from the Site, for any reason and without prior notice, including, without limitation, if Company believes that you have (i) breached the Terms and Conditions, (ii) infringed the intellectual property or other proprietary rights of a third party, (iii) uploaded and transmitted any Unauthorized Content to the Site, or (iv) violated or acted inconsistently with the letter or spirit of the Terms and Conditions. FURTHER, YOU AGREE THAT COMPANY SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SITE. You may discontinue your participation in and access to the Services at any time by written notice to Company.
YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE TERMS AND CONDITIONS, THE SITE, SERVICES AND/OR CONTENT IS TO DISCONTINUE USING THE SITE AND/OR THE SERVICES.
14. GOVERNING LAW AND JURISDICTION
The Terms and Conditions shall be governed by and construed and enforced in accordance with the laws of the State of California, as they are applied to agreements entered into and performed entirely within California and without giving effect to any principles of conflict of laws. All lawsuits arising out of the Terms and Conditions or out of your use of the Site or Software shall be brought in the federal or state courts located in Orange County, California. You hereby irrevocable submit to the exclusive personal jurisdiction of such courts for such purpose.
15. GENERAL PROVISIONS
Entire Agreement. The Terms and Conditions, together with the Privacy Policy at https://www.healthatm.com/privacy_out.php and any other legal notices posted by Company on the Site, shall constitute the entire, exclusive and final statement of the agreement between you and Company with respect to the subject matter hereof, and supersede any prior agreements or negotiations between you and Company with respect to the subject matter hereof.
Severability. If any provision of the Terms and Conditions are found by a court of competent jurisdiction to be unlawful, void, or unenforceable, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and that the other provisions of the Terms and Conditions shall remain in full force and effect.
Waiver. Any delay or failure on the part of Company to exercise or enforce any right or provision of the Terms and Conditions shall not constitute a waiver of such right or provision or any other right or provision of the Terms and Conditions, whether at law or equity.
Remedy Limitations. 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 Terms and Conditions or use of the Site, Software, Content and/or Services must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Assignment. Company may assign the Terms and Conditions, or any part hereof, without restriction. You shall not assign these Terms and Conditions, or any of your rights or obligations hereunder. Any assignment in violation of the foregoing shall be null and void.
