Health MadeDaily Terms of Service
Last Updated: January 1, 2021
The Terms of Service is a binding and enforceable legal contract between Health MadeDaily and you, so please read it carefully.
We provide Users with access to certain Licensed Content (as defined below) to help medical practitioners (“Practitioner Users”) build, transmit, and receive patient/client (“Patient Users”) forms, and communicate with Patient Users (“User Content”) by providing general and personalized forms, patient interface hosting services, communication tools, scheduling tools, and mobile applications (collectively, the “Services”) directly and through the Software. This Agreement explains Our obligations to you, and your obligations to Us. This Agreement is the entire Agreement between you and Us.
1.1 PURPOSE The mission of Health MadeDaily is to simplify the collection of online patient data for health providers. Practitioner Users will be able to provide our online forms to their clients, in digital form, to be filled out and subsequently stored in their Health MadeDaily provider account. Patient User data is protected in transit and at rest and all processing, storage and transmission of patient PHI is compliant with applicable laws and regulations including HIPAA, HITECH, PHIPA/PIPEDA, & GDPR. Patient User data is secured such that only authorized health care providers in the provider office can access. Forms can be viewed and printed from your provider account. To achieve our mission, we make services available through our Software to help you simplify and manage client intake forms.
2. ACCOUNT HOLDER OBLIGATION
2.1 APPLICABLE LAWS AND THIS AGREEMENT You must comply with all applicable laws, including the laws from where you access Health MadeDaily, and this Agreement, as may be amended from time to time with or without advance notice, and the policies and processes explained in the remainder of these Terms of Services.
2.2 LICENSE AND WARRANTY FOR YOUR FORMS ON HEALTH MADEDAILY As between you and Health MadeDaily, you own the content and information you provide Health MadeDaily under this Agreement, and may request its deletion at any time, subject to applicable laws and regulations. Additionally, Practitioner Users hereby grant Us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any of their User Content that you post or upload to the Service in order to facilitate the ordinary use of the Service. Any User Content or information you submit to us is at your own risk of loss. By providing content or information to us, you represent and warrant that you are entitled to submit it and that it is not confidential and not in violation of any law, contractual restrictions or other third party rights. In addition, we may use Practitioner User’s name, image, likeness and trademarks or logos to promote the Services and Health MadeDaily. Notwithstanding the foregoing, protected Patient information submitted through the Service shall not be capable of being viewed or accessed by Us, and such information shall not be subject to the license provided in this Section.
2.4 YOUR ACCOUNT The account you create on Health MadeDaily will become part of Health MadeDaily and is owned by Health MadeDaily. However, between you and others, your account belongs to you. You agree to: (1) keep your password secure and confidential; (2) not permit others to use your account; (3) not use others' accounts; (4) not sell, trade, or transfer your Health MadeDaily account to another party; and (5) not charge anyone for access to any portion of Health MadeDaily, or any information therein. Further, you are responsible for anything that happens through your account until you close down your account or prove that your account security was compromised due to no fault of your own.
Each Practitioner User account shall have a unique password and recovery key provided upon opening an account. In the event that a Practitioner User has forgotten their password, We may reset your password upon request. If you reset your password, and do not have access to the recovery key you received when you created your account, you will be unable to access any patient data that was uploaded or contained in your account prior to the password reset. It is important that you maintain a copy of your recovery key to avoid the loss of data.
Notwithstanding the foregoing, we reserve the right to determine and reset passwords to a Practitioner User account, in our sole discretion, based on our reasonable judgment, whether or not an independent investigation has been conducted by us. However, if we cannot make such determination (as we may deem in our sole discretion), we reserve the right to avoid doing so, without liability to you or to any other party.
To close, suspend or pause your Health MadeDaily account, you may do so via the Services, or You can email Health MadeDaily at firstname.lastname@example.org with a request to close your account. Following closing an account, we will retain all “designated record sets”(as defined in HIPAA) for a period of six years.
2.5 FEES Practioner User’s use of the Services or Software is subject to your selection of a service contract agreement with Health MadeDaily, and payment of particular fees, as determined by Health MadeDaily in its sole discretion (“Fees”). You may agree to a one (1) month or twelve (12) month contract period which will begin upon your selection of a service contract agreement and payment of all applicable fees (“Term”).
Practitioner Users may choose to upgrade or downgrade their service agreement to any other contract agreement that Health MadeDaily is currently offering for sale at any time during your Term. In the event of a contract downgrade, a credit will be issued to your account for the difference in the cost of the two contracts over the remainder of your original Term. This credit can be applied to future Fees for Services with Health MadeDaily, and does not, in any way, entitle you to a cash refund.
In addition, we may provide Practitioner Users with custom form design services (“Design Services”). Such services shall be at a rate determined by Us and disclosed to you at the time of requesting and agreeing to such Design Services. The payment for any Design Services shall be considered a Fee an may be billed to you prior to, during, or following provision of such Design Services. We may also bill costs for Design Services directly to the payment method listed on your account for the Services.
2.6 RENEWAL At the end of the contract term, Practitioner Users contract will automatically renew for an additional contract Term until explicitly terminated by you. The Term for such automatic renewal shall be the same as the original Term for such Service and shall be automatically charged to the payment method you have on file with Health MadeDaily. Termination must be issued as detailed in this Agreement. Any termination issued must be done at least five (5) days prior to the end of the contract Term to allow for adequate processing time. You are, and shall be, solely responsible to verify and ensure the successful renewal of the Services. You shall be solely responsible with respect to any discontinuation of any Services previously purchased by you, including due to a cancellation, failure to charge the applicable recurring Fees, or due to any Services not being automatically renewed. You acknowledge and agree that you shall not have any claims against Health MadeDaily in relation to the discontinuation of any Services or Third Party Services, for whatever reason.
2.7 STORAGE OF INFORMATION If Practitioner Users purchase any Services that We offer for a Fee, you agree that Health MadeDaily, or our third party service providers, may store your payment card information. You expressly agree that We are authorized to charge you (i) a monthly Fee for any applicable Services billed on a monthly basis, (ii) any other Fees for Services or Design Services you may purchase, and (iii) any applicable taxes in connection with your use of the Services to the payment card you provide and to reimburse us for all collection costs and interest for any overdue amounts. If the payment card you provide expires and you do not provide new payment card information or cancel your account, you authorize Us to continue billing you and you agree to remain responsible for any uncollected Fees.
2.8 TAXES To the extent permitted by law (and unless specified otherwise by Health MadeDaily in writing), all Fees are exclusive of all taxes (including value added tax, sales tax, goods and services tax, etc.), levies or duties imposed by taxing authorities (“Taxes”), and you shall be responsible for payment of all applicable Taxes relating to your use of the Services, or to any payments or purchases made by you. If Health MadeDaily is obligated to collect or pay Taxes for the Fees payable by you, and whether or not such Taxes were added and collected from you for previous transactions, such Taxes may be added to the payment of any outstanding Fees and will be reflected in the receipt for such transaction. You take full responsibility for all taxes and fees of any nature associated with Services.
2.9 CHARGEBACKS If, at any time, you contact your bank or credit card company and decline, chargeback or otherwise reject the charge of any payable Fees (“Chargeback”), you provide any inaccurate payment information, or your bank does not approve any transaction agreed to in this Agreement (“Payment Error”), this act will be considered a breach of your payment obligations hereunder, and your use of the Services may be automatically terminated. In the event a Chargeback is performed or a Payment Error occurs, your User Account may be blocked without the option to re-purchase or re-use it, and any data contained in such User Account may be subject to cancellation and Content Loss (as defined below). Your use of the Services will not resume until you re-subscribe for any such Services, and pay any applicable Fees in full, including any fees and expenses incurred by Health MadeDaily and any Third Party Services for each Chargeback received (including Fees for Services provided prior to the Chargeback, handling and processing charges and fees incurred by the payment processor) or Payment Error incurred. If you have any questions or concerns regarding a payment made to Health MadeDaily, we encourage you to first contact Us before filing a Chargeback or reversal of payment, in order to prevent the Services from being canceled and your account being blocked, and to avoid the filing of an unwarranted or erroneous Chargeback, which may result in your being liable for applicable Fees, in addition to re-payment of all the Fees applicable to the Services purchased (and charged-back) by you. We reserve our right to dispute any Chargeback received, including by providing the relevant credit card company or financial institution with any information and documentation proving that the User responsible for such Chargeback did in fact authorize the transaction and make use of the services rendered thereafter. If a Payment Error occurs, it shall be your sole obligation to remedy the error by updating your payment information, or contacting your financial institution to remedy any errors.
2.10 FREE TRIAL If You register on our website for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Service(s), or (b) the start date of any paid Service subscriptions ordered by You for such Service(s). Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. THEREFORE, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST. NOTWITHSTANDING, SECTION 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
2.11 INDEMNIFICATION You agree to indemnify us and hold us harmless for all damages, losses and costs (including, but not limited to, reasonable attorneys’ fees and costs) related to all third party claims, charges, and investigations, caused by (1) your failure to comply with this Agreement, including, without limitation, your submission of content that violates third party rights or applicable laws, (2) any content you submit to the Services, and (3) any activity in which you engage on or through Health MadeDaily.
2.12 NOTIFY US OF ACTS CONTRARY TO THE AGREEMENT If you believe that you are entitled or obligated to act contrary to this Agreement under any mandatory law, you agree to provide us with a detailed and substantiated explanation of your reasons in writing at least 30 days before you act contrary to this Agreement, to allow us to assess whether we may, at our sole discretion, provide an alternative remedy for the situation, though we are under no obligation to do so.
2.13 NOTIFICATION OF SERVICE MESSAGES For purposes of service messages and notices about the Services, Health MadeDaily may place a banner notice across its pages to alert you to certain changes such as modifications to this Agreement. Alternatively, notice may consist of an email from Health MadeDaily to an email address associated with your account, even if we have other contact information. You also agree that Health MadeDaily may communicate with you through your Health MadeDaily account or through other means including email, mobile number, telephone, or delivery services including the postal service about your Health MadeDaily account or services associated with Health MadeDaily. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the Services.
2.14 HEALTH MADEDAILY MOBILE APPLICATION Health MadeDaily may offer the Services through applications built using Health MadeDaily’s platform, or mobile optimized versions of the Software (“Health MadeDaily Applications”). Examples of Health MadeDaily Applications include smartphone applications (e.g. Health MadeDaily for Android and iOS). If you use a Health MadeDaily Application or interact with a website that has deployed a plugin, you agree that information about you and your use of the Services, including, but not limited to, your device, your mobile carrier, your internet access provider, your physical location, or web pages containing Health MadeDaily plugins that load in your browser may be communicated to us. Further, by importing any of your Health MadeDaily data through the Health MadeDaily Application, you represent that you have authority to share the transferred data with your mobile carrier or other access provider. You acknowledge you are responsible for all charges and necessary permissions related to accessing Health MadeDaily through your mobile access provider. Therefore, you should check with your provider to find out if the Services are available and the terms for these services for your specific mobile devices. Finally, by using any downloadable application to enable your use of the Services, you are explicitly confirming your acceptance of the terms of the End User License Agreement associated with the application provided at download or installation, or as may be updated from time to time.
2.16 USER RESPONSIBILITIES You further agree to:
a) fully comply with all applicable laws and any other contractual terms which govern your use of the Services (and any related interaction or transaction), including those specific laws applicable to you or your End Users;
b) be solely responsible and liable with respect to any of the uses of the Services which occur under your account, and for any of your User Content (including for any consequences of using or publishing such User Content on or with respect to the Services);
c) regularly and independently print and save any of your User Content and the information that is being processed by you regarding your account;
d) receive from time to time promotional messages and materials from Health MadeDaily or its partners, by mail, email or any other contact form you may provide us with (including your phone number for calls or text messages);
e) that the means, manner, and method for performing the Services, including those regarding the hosting, transmission, publication or display of any User Content (including the inclusion and presentation of any advertisements or other commercial content with respect thereto) shall be determined at Health MadeDaily’s sole discretion;
f) provide accurate information, including a current email address, to us and update it as necessary;
h) review and comply with notices sent by Health MadeDaily concerning the Services;
i) use the Services in a professional manner; and
j) use your real name on your profile.
2.17 USER RESTRICTIONS You agree not to:
a) copy, modify, create derivative works of, download, adapt, reverse engineer, emulate, migrate to another service, translate, compile, decompile or disassemble the Software, the Services (or any part thereof), in any way, or publicly display, perform, transmit or distribute any of the foregoing without Health MadeDaily’s prior written and specific consent or as expressly permitted under these Terms of Service;
b) use the Services for any unlawful purposes or to conduct any unlawful activity, including, but not limited to, fraud, embezzlement, money laundering or insider trading;
c) use any “robot”, “spider” or other automatic device, program, script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the Software or Services (or its data), or in any way reproduce or circumvent the navigational structure or presentation of any of the Software or Services to obtain or attempt to obtain any materials, documents, services or information through any means not purposely made available through the Services;
d) act in a manner which might be perceived as damaging to Health MadeDaily’s reputation and goodwill or which may bring Health MadeDaily into disrepute or harm;
e) impersonate any person or entity or provide false information on the Services or Software (directly or indirectly), or otherwise perform any manipulation in order to disguise your identity or the origin of any message or transmittal you send to Health MadeDaily or any End Users;
f) falsely state or otherwise misrepresent your affiliation with any person or entity, or falsely express or imply that Health MadeDaily or any third party endorses you, your business, your services, or any statement you make;
g) disable, circumvent, bypass or otherwise avoid any measures used to prevent or restrict access to the Services, Software, or any other systems or networks connected to the Services or Software, by hacking, password mining, or other illegitimate or prohibited means;
h) attempt to or actually override any security component included in or underlying the Services or Software;
i) probe, scan, or test the vulnerability of the Services or any network connected to the Services;
j) upload to the Services or Software, or otherwise use them to design, develop, distribute or otherwise transmit or execute, any virus, worm, Trojan Horse, time bomb, web bug, spyware, malware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component;
k) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services or Health MadeDaily’s systems or networks connected to the Services, or otherwise interfere with or disrupt the operation of any of the Services, the servers or networks that host them or make them available, or disobey any requirements, procedures, policies, or regulations of such servers or networks;
l) use any of the Services or Software in connection with any form of spam, unsolicited mail, fraud, scam, phishing, “chain letters”, “pyramid schemes” or similar conduct, or otherwise engage in unethical marketing or advertising;
m) sell, license, or exploit for any commercial purposes any use of or access to the Services or Software, except as expressly permitted by the Terms of Service;
n) remove or alter any copyright notices, watermarks, restrictions and signs indicating proprietary rights of any of our licensors, including copyright mark [©], Creative Commons [(cc)] indicators, or trademarks [® or ™] contained in or accompanying the Services or Software; or
o) violate, attempt to violate, or otherwise fail to comply with any of the Terms of Service or any laws or requirements applicable to your use of the Services.
p) publish inaccurate information in the designated fields on your account form.
q) create an account for anyone other than a natural person or entity;
r) use or attempt to use another’s account or create a false identity on Health MadeDaily;
3. MEMBER RIGHTS
On the condition that you comply with all your obligations under this Agreement, we grant you a limited, revocable, nonexclusive, nonassignable, nonsublicenseable license and right to access the Services, through a generally available web browser, mobile device or Health MadeDaily authorized application. Any other use of Health MadeDaily contrary to our mission and purpose is strictly prohibited and a violation of this Agreement. We reserve all rights not expressly granted in this Agreement, including, without limitation, title, ownership, intellectual property rights, and all other rights and interest in Health MadeDaily and all related items, including any and all copies made of the Health MadeDaily website.
4. HEALTH MADEDAILY RIGHTS & OBLIGATIONS
4.1 SERVICES AVAILABILITY For as long as Health MadeDaily continues to offer its Services, Health MadeDaily shall provide and seek to update, improve and expand the Services. As a result, we allow you to access Health MadeDaily as it may exist and be available on any given day and we have no other obligations, except as expressly stated in this Agreement. We may modify, replace, refuse access to, suspend or discontinue Health MadeDaily, partially or entirely, or change and modify prices prospectively for all or part of the Services for you or for all our Users in our sole discretion. All of these changes shall be effective upon their posting on Health MadeDaily or by direct communication to you unless otherwise noted. Health MadeDaily further reserves the right to withhold, remove or discard any content available as part of your account, with or without notice if deemed by Health MadeDaily to be contrary to this Agreement. Health MadeDaily may be required by local laws to remove certain information or content and so that information or content may not be available on our Service in those countries.
4.3 INTELLECTUAL PROPERTY NOTICES All rights, title and interest in and to the Software, Services, or material available on via the Software and Services provided by or through Health MadeDaily, its affiliates, subsidiaries, employees, agents, licensors or other commercial partners, including any and all materials or any other content thereof which is or may be subject to any intellectual property rights under any applicable law including, but not limited to, any artwork, graphics, images, website templates and widgets, literary work, forms, source and object code, computer code (including html), applications, audio, music, video and other media, designs, animations, interfaces, the “look and feel” of the Services, methods, products, algorithms, data, interactive features and objects, advertising and acquisition tools and methods, inventions, trade secrets, logos, domains, customized URLs, trademarks, service marks, trade names and other proprietary identifiers as well as all derivative works thereof, whether or not registered or capable of being registered (collectively, “Intellectual Property”), and any derivations thereof, are owned by or licensed to Health MadeDaily. All Health MadeDaily trademarks and service marks, logos, slogans and taglines are the property of Health MadeDaily. All other trademarks, service marks, logos, slogans and taglines are the property of their respective owners.
4.4 PROVISION OF PURCHASED SERVICES We will (a) make the Services available to You pursuant to this Agreement, (b) provide Our standard support for the Services to You at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 8 hours electronic notice and which We shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Central time), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, protests, riots, pandemics, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, or denial of service attack.
4.6 COMMENTS AND FEEDBACK Any questions, comments, suggestions, ideas, feedback, or other information provided by you to Us (“Comments”) are not confidential and you hereby grant Us a worldwide, perpetual, irrevocable, royalty-free license to reproduce, display, perform, distribute, publish, modify, edit or otherwise use such Comments as We deem appropriate, for any and all commercial and non-commercial purposes, in Our sole discretion. By providing such Comments to Us, you (1) represent and warrant that such Comments are accurate, complete, and do not infringe on any third party rights; (2) irrevocably assign to Health MadeDaily any right, title and interest you may have in such Comments, (3) explicitly and irrevocably waive any and all claims relating to any past, present or future moral rights, artists’ rights, or any other similar rights worldwide in or to such Comments.
5. CONFIDENTIAL INFORMATION
5.1 GENERALLY Each party agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, the exercise of its legal rights under this Agreement, or as required by law, and will use reasonable care to protect Confidential Information from unauthorized disclosure. Each party agrees not to disclose the other’s Confidential Information to any third party except: (i) to its Representatives, provided that such Representatives agree to confidentiality measures that are at least as stringent as those stated in these Terms of Service; (ii) as required by law; or (iii) in response to a subpoena or court order or other compulsory legal process, provided that the party subject to such process shall give the other written notice of at least seven days prior to disclosing Confidential Information unless the law forbids such notice.
5.2 COMPELLED DISCLOSURE The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
5.3 HIPAA If Health MadeDaily is your “Business Associate” as defined in the Health Insurance Portability and Accountability Act of 1996, as amended, then as of the date that Health MadeDaily becomes your Business Associate the HIPAA Business Associate Agreement located at [URL to BAA] shall become part of the Agreement.
Some countries and jurisdictions do not allow the disclaimer of implied terms in contracts with consumers and as a result the contents of this section may not apply to you. Do not rely on Health MadeDaily or its suppliers, any information therein, or its continuation. We provide the platform for Health MadeDaily and all information and services on an “as is” And “as available” Basis. Health MadeDaily does not control or vet user generated content for accuracy. We do not provide any express warranties or representations. To the fullest extent permissible under applicable law, Health MadeDaily and its suppliers disclaim any and all implied warranties and representations, including, without limitation, any warranties of merchantability, fitness for a particular purpose, title, accuracy of data, and noninfringement. If you are dissatisfied or harmed by Health MadeDaily or anything related to Health MadeDaily, you may close your Health MadeDaily account and terminate this agreement in accordance with the provisions of this Agreement and such termination shall be your sole and exclusive remedy. Health MadeDaily is not responsible, and makes no representations or warranties for the delivery of any messages (such as inmails, posting of answers or transmission of any other user generated content) sent or otherwise accessed through Health MadeDaily to anyone. In addition, we neither warrant nor represent that your use of the services will not infringe the rights of third parties. Any material, service, or technology described or used on our websites may be subject to intellectual property rights owned by third parties who have licensed such material, service, or technology to us. Health MadeDaily does not have any obligation to verify the identity of the persons subscribing to its services, nor does it have any obligation to monitor the use of its services by other users; therefore, Health MadeDaily disclaims all liability for identity theft or any other misuse of your identity or information by others. Health MadeDaily does not guarantee that the services it provides will function without interruption or errors in functioning. In particular, the operation of the services may be interrupted due to maintenance, updates, or system or network failures. Health MadeDaily disclaims all liability for damages caused by any such interruption or errors in functioning. Furthermore, Health MadeDaily disclaims all liability for any malfunctioning, impossibility of access, or poor use conditions of the Health MadeDaily sites due to inappropriate equipment, disturbances related to internet service providers, to the saturation of the internet network, and for any other reason.
7. LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY
7.1 LIMITATION OF LIABILITY Some countries do not allow the limitation or exclusion of liability in contracts with consumers and as a result the contents of this section may not apply to you. We are not liable to you or any other person for damages of any kind, including without limitation any punitive, exemplary, consequential, incidental, indirect or special damages (including, without limitation, any personal injury, lost profits, business interruption, loss of programs or other data on your computer or otherwise) arising from or in connection with use of the Software, the Services, User Content, whether under a theory of breach of contract, negligence, strict liability, malpractice or otherwise, even if Health MadeDaily has been advised of the possibility of such damages. You hereby release Health MadeDaily and hold Health MadeDaily and its parents, subsidiaries, affiliates, licensors, and their officers, directors, trustees, affiliates, subcontractors, agents and employees, harmless from any and all claims, demands, and damages of every kind and nature (including, without limitation, actual, special, incidental and consequential), known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the use of the Services, Software, User Content, or any content available on or through the Software. You hereby waive the provisions of any state or local law limiting or prohibiting a general release. You acknowledge and agree that these limitations of liability are agreed allocations of risk constituting in part the consideration for Health MadeDaily’s services to you, and such limitations will apply even if Health MadeDaily has been advised of the possibility of such liabilities.
7.2 EXCLUSIVE REMEDY In the event of any problem with the Software, the Services, or content contained therein, you agree that your sole and exclusive remedy is to cease using the Software, Services, and the content. Under no circumstances shall Health MadeDaily, its affiliates, or licensors be liable in any way for your use of the Software, the Services, the content, User Content, or content available on or through the Software or Services, including, but not limited to, any errors or omissions, any infringement of the intellectual property rights or other rights of third parties, or for any loss or damage of any kind incurred as a result of, or related to, the use of the website, the services, the content, your content, the commercial products or any third party user generated content available on or through the website.
7.3 INDEMNIFICATION You agree to indemnify, hold harmless, and defend Health MadeDaily and its licensors, suppliers, officers, directors, employees, agents, affiliates, subsidiaries, successors and assigns (collectively "Indemnified Parties") from and against any and all liability, loss, claim, damages, expense, or costs (including but not limited to attorneys' fees), incurred by or made against the Indemnified Parties in connection with any claim arising from or related to (i) your use (or anyone using your account’s) use of the Services, the Software or any content contained therein, or (ii) your User Content. This includes, but is not limited to, any breach or violation of this Terms of Service Agreement by you or anyone utilizing your account. You agree to fully cooperate at your expense as reasonably required by an Indemnified Party. Each Indemnified Party may, at its election, assume the defense and control of any matter for which it is indemnified hereunder. You shall not settle any matter involving an Indemnified Party without the consent of the applicable Indemnified Party.
8.1 MUTUAL RIGHTS OF TERMINATION You may terminate your account for any or no reason, at any time, with notice to Health MadeDaily pursuant to Section 8.3 below. This notice will be effective upon Health MadeDaily processing your notice. Health MadeDaily may terminate this Agreement and your account for any reason or no reason, at any time, with or without notice. This cancellation shall be effective immediately or as may be specified in the notice. Termination of your Health MadeDaily account includes disabling your access to Health MadeDaily and may also bar you from any future use of Health MadeDaily.
8.2 MISUSE OF THE SERVICES Health MadeDaily may restrict, suspend or terminate the account of any User who abuses or misuses the Services. Misuse of the Services includes abusing the Health MadeDaily services; creating multiple or false profiles; using the Services commercially without Health MadeDaily’s authorization, infringing any intellectual property rights, violating any of your obligations or restrictions listed in this Agreement, or any other behavior that Health MadeDaily, in its sole discretion, deems contrary to its purpose.
8.3 EFFECT OF TERMINATION Upon termination of your Health MadeDaily account, you lose access to the Services. The terms of this Agreement shall survive any termination, except Section 3 (“Your Rights”) and Section 4 (“Health MadeDaily Rights and Obligations”).
8.4 LOSS OF DATA If your account or use of the Services are canceled, suspended or terminated (whether at your request or at Health MadeDaily’s discretion), it may cause or result in the loss of certain content, features, or capacity of your account, including, but not limited to, User Content, data, or other information or content retained therein (“Content Loss”). You are solely responsible for saving a backup of your User Content and account data. Health MadeDaily shall not be liable in any way for any such Content Loss.
9. DISPUTE RESOLUTION
9.1 LAW AND FORUM FOR LEGAL DISPUTES The formation, interpretation and performance of this Agreement and any disputes arising out of it shall be governed by the substantive and procedural laws of the state of Minnesota without regard to its rules on conflicts or choice of law and, to the extent applicable, the laws of the United States of America. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in Minneapolis, Minnesota, and you hereby submit to the personal jurisdiction of such courts and irrevocably waive any objection with respect to the same, including any objection based on forum non conveniens. You hereby waive any right to a jury trial in any proceeding arising out of or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
10. GENERAL TERMS
10.1 SEVERABILITY If any provision of this Agreement is found by a court of competent jurisdiction or arbitrator to be illegal, void, or unenforceable, the unenforceable provision will be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of the provision; if a court or arbitrator finds the modified provision invalid, illegal, void or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not be affected in any way.
10.2 NOTICES We may provide you with notices by email, sent to the email address you provided us. Health MadeDaily’s notice to you will be deemed received and effective within twelve (12) hours after it was sent, unless otherwise indicated in the notice.
10.4 AMENDMENTS TO THIS AGREEMENT We reserve the right, in our sole discretion, to modify or replace any part of this Agreement at any time, effective upon the date of the change. In the event of any such change, we will post a notice on the Software that we have changed this Agreement. If you have a Health MadeDaily account, we may, but are not required to, provide you with notice via the email address that we have on file for you that we have changed this Agreement.
Health MadeDaily may change, suspend or terminate any of the Services, or any features thereof, or prices applicable thereto, at any time and in any manner. Such changes may become effective upon notice to you, via the email address that we have on file for you, and in any event, not in a retroactive manner, except as required otherwise by law. If any such changes involve the payment of additional Fees, we will provide you with a notice, via the email address that we have on file for you, of such Fees prior to enabling such specific changes. If you fail or refuse to pay such Fees, we may, at our sole discretion, cancel your account, continue to support your then-current Services without enabling such changes, or provide you with alternative Services.
You and Health MadeDaily both understand that sometimes there are issues with email communication. We are not responsible if any email notice gets caught by your SPAM filter and you do not see it, if you have given us the wrong email address (or failed to update your address) or if there are other communications issues that prevent email from reaching you. Therefore, we encourage you to frequently visit this page periodically to monitor any changes. Your continued use of or access to the Services following the posting of any changes to this Agreement constitutes acceptance of those changes.
We may also, in the future, offer new services and/or features through the Software (including the release of new tools and resources). For the avoidance of doubt, such new features or services shall be subject to the terms and conditions of this Agreement.
10.5 AGREEMENTS NO INFORMAL WAIVERS, AGREEMENTS OR REPRESENTATIONS Our failure to act with respect to a breach of this Agreement by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches. Except as expressly and specifically contemplated by the Agreement, no representations, statements, consents, waivers or other acts or omissions by any Health MadeDaily Affiliate shall be deemed legally binding on any Health MadeDaily Affiliate, unless documented in a physical writing hand signed by a duly appointed officer of Health MadeDaily.
10.6 NO INJUNCTIVE RELIEF In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Services, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Services or any content or other material used or displayed through the Services.
10.7 ASSIGNMENT AND DELEGATION Health MadeDaily may freely assign its rights or interests hereunder, delegate the performance of its duties hereunder, or transfer ownership rights and title in the Services and Licensed Content to a third party without your consent or prior notice to you. You may not assign or transfer any of your rights, interests, duties or obligations hereunder without the prior written consent of Health MadeDaily. Any attempted or actual assignment thereof without Health MadeDaily’s prior explicit and written consent will be null and void. In any event, an assignment or transfer pursuant to this Section shall not in itself grant either Health MadeDaily or you the right to cancel any Services then in effect.
10.8 POTENTIAL OTHER RIGHTS AND OBLIGATIONS You may have rights or obligations under local law other than those enumerated here if you are located outside the United States.
10.10 USE IN LEGAL PROCEEDINGS A printed version of this Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
10.11 HEADINGS, CAPTIONS, AND EXPLANATIONS All headings, captions or section titles contained herein, are provided only for convenience and ease of reference and are not to be considered in the construction or interpretation of any provisions of this Agreement and do not legally bind you or Us in any way.
11. ADDITIONAL REMEDIES You acknowledge that a violation or attempted violation of any of this Agreement will cause irreparable damage to Health MadeDaily, the exact amount of which would be impossible to ascertain and for which there will be no adequate remedy at law. Accordingly, you agree that Health MadeDaily shall be entitled as a matter of right to an injunction issued by any court of competent jurisdiction, restraining such violation or attempted violation of these Terms of Service by you, or your affiliates, partners, or agents, as well as to recover from you any and all costs and expenses sustained or incurred by Health MadeDaily in obtaining such an injunction, including, without limitation, reasonable attorney's fees. You agree that no bond or other security shall be required in connection with such injunction.
In no event shall you be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of Health MadeDaily, the exploitation of any advertising or other materials issued in connection therewith, or the exploitation of the Software or any content used or displayed through the Software.
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