 |
|
||||||||||||||||
|
 |
 |
TERMS AND CONDITIONS OF USE |
|
Medical Interactive Community, LLC (sometimes also referred to as “MI Community” or “MI”) is a wholly-owned subsidiary of Louisiana Medical Mutual Insurance Company (“LAMMICO”). The terms “MI Community” as well as “MI” are trade names, trademarks and service marks of LAMMICO. By accessing or using any of MI’s internet properties including, without limitation, www.medicalinteractive.com, and any others released by the MI from time to time (collectively referred to as the "MI Web sites") you agree to comply with and be bound by these Terms and Conditions of Use ("Terms of Use"). Please read these Terms of Use carefully as well as MI's Privacy Policy which is incorporated herein by reference. If you do not agree to these Terms of Use and the Privacy Policy, you must immediately terminate use of the MI Web sites. You may print or save a copy of these Terms of Use for your records. Parental Controls; User Of Age and Discretion. To the extent required by the Communications Decency Act of 1996, MI hereby notifies you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to content that may be harmful to minors. Among the many companies that provide internet blocking and screening software are CyberPatrol, NetNanny, SurfWatch, and GuardOne. MI does not currently sponsor or endorse any of these companies or their services, but may do so in the future; provided that, notwithstanding any such sponsorship, endorsement, promotion or other association with any such companies or other companies that provide the same or similar services, MI is in no case or circumstance whatsoever liable or responsible for the goods, services, or other products of such companies. You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Use, and to abide by and comply with these Terms of Use. In any case, you affirm that you are over the age of 13, as the MI Web sites are not intended for children under 13. If you are under 13 years of age, then please do not use the MI Web sites. 1. License Grant. You are granted a personal, revocable, limited, non-exclusive, non-transferable license to access and use the MI Web sites conditioned on your continued acceptance of, and compliance with, these Terms of Use. You may use the MI Web sites and the MI Content (as defined below) for your noncommercial personal use and for no other purpose. MI reserves the right to, one or more times, bar, restrict, limit or suspend your access to the MI Web sites, and/or to terminate this license, without notice to you, at any time for any reason or for no reason. MI reserves any and all licenses and rights not explicitly granted in these Terms of Use. The term Person, as used in these Terms of Use, means any individual, corporation, limited liability company, trust, partnership (whether general, limited liability or otherwise), association or other entity. 2. License Restrictions. Unless otherwise expressly stated in these Terms of Use or you receive MI's prior written consent, you may not modify, translate, adapt, change, create derivative works of, copy, distribute, broadcast, publish, transmit, market, display, remove or alter any proprietary or other notices, legends or labels from, lease, sell, sublicense, clone, transfer, decompile, reverse engineer, or incorporate into any information retrieval system (electronic, digital, mechanical or otherwise), the MI Web sites, any MI Content (as defined below), or any portion thereof. Further, you may not (i) use the MI Web sites for any unauthorized or illegal purpose or activity including, but not limited to, any activity to obtain or attempt to obtain unauthorized access to the MI Web sites, including, without limitation, MI Content; (ii) interfere with the proper working of the MI Web sites including, but not limited to, the transmission of any virus, worm, trap door, back door, timer, clock, Trojan horse, or other limiting, compromising, disrupting, disabling or saboteur routine, instruction, software, means or design; or (iii) interfere with or otherwise compromise, sabotage, disable, corrupt, or disrupt any other Person's use and enjoyment of the MI Web sites. You shall not circumvent, disable, sabotage, disengage, corrupt, reverse engineer or otherwise interfere with the security-related features of the MI Web sites or features that prevent or restrict use, copying, alteration, editing, adapting or distribution of the MI Content. 3. Your Acceptance; Revisions to Terms of Use. The MI Web sites are available only to individuals who can enter into legally binding contracts under applicable law. These Terms of Use constitute a legally binding agreement between you and the MI regarding your use and access to the MI Web sites. By using the MI Web sites you agree to the Terms of Use. MI reserves the right to revise these Terms of Use at any time, one or more times, in its sole discretion by posting revised Terms of Use to the MI Web sites. Your use of the MI Web sites signifies your acceptance of all the terms and conditions contained within the Terms of Use posted at the time of your use. You are and continue to be responsible for regularly reviewing the Terms of Use posted to the MI Web sites. No revision to these Terms of Use, including, without limitation, to the Arbitration provision set forth in Section 22, shall apply to a controversy or claim of which MI had actual notice on or before the date of any such revision. 4. MI Policies; Additional Terms and Conditions. MI's Privacy Policy, as well as other additional terms and conditions applicable to certain portions of the MI Web sites (collectively "Additional Terms and Conditions") are incorporated herein by reference. To the extent that there is a conflict between these Terms of Use and any Additional Terms and Conditions for the activity in which you choose to participate, the Additional Terms and Conditions shall govern. 5. Click-Through Agreements. Before using certain areas of the MI Web sites you may be asked to indicate your acceptance of additional special terms and conditions by clicking a button marked “Accept” “I Accept” “Agree” “I Agree” “Okay” “Consent” “I Consent” or other words or actions that similarly acknowledge your consent or acceptance of a Click-Through Agreement. To the extent there is a conflict between these Terms of Use and any Click-Through Agreement for the activity in which you choose to participate, the Click-Through Agreement will govern. 6. Personal Login Information; Database Breach Notice. Certain features and areas of the MI Web sites are available only with registration and login (collectively “Registered Areas”). If you are required to register and select a unique login and password ("Personal Login Information"), you must keep your Personal Login Information confidential. Your Personal Login Information is personal to you and you may not allow any third party to use it under any circumstances. MI is not liable for any harm caused by or related to or arising, in any way whatsoever, from the theft, misappropriation, disclosure, or unauthorized use of your Personal Login Information. You must contact MI immediately if you become aware of or believe there is or may have been any unauthorized use of your Personal Login Information, or otherwise wish to deactivate your Personal Login Information due to security concerns. Actual or attempted unauthorized use of or access to Registered Areas may result in criminal and/or civil prosecution. Success in, or attempts to, access Registered Areas without authorization, as well as any information obtained therefrom, may be given to law enforcement organizations or agencies in connection with any investigation or prosecution of possible criminal or other unlawful activity. In the event that MI maintains any personal information (whether Personal Login Information or any other information) about you, you agree that, to the extent that MI is required by law to provide you with notice regarding a breach of security of such personal information, MI may provide you with notice either: (1) through the e-mail address you provided to MI upon your creation of your Personal Login Information (or, at the option of MI, any such e-mail address you subsequently or otherwise provide to MI); or (2) through the MI Web sites. You agree that MI is not required by these Terms of Use to provide you with notice of any breach of security (whether as to MI’s databases, the MI Web Sites or otherwise), and that MI has no obligation whatsoever to notify you of any breach of security (whether as to MI’s databases, the MI Web Sites or otherwise) unless MI is required to do so by law. 7. Privacy Policy. For information about MI's data protection practices and MI's use and protection of your personal information, please read MI's Privacy Policy which is incorporated into and made a part of these Terms of Use. 8. User Obligations. You represent and warrant that you will abide by all applicable local, state, national and international laws and regulations with respect to your use of the MI Web sites and not interfere with the use and enjoyment of the MI Web sites by other users or with MI's operation and management of the MI Web sites. You will, at all times, provide true, accurate, current, authorized, and complete information when submitting information or materials on the MI Web sites, including, without limitation, information required to be provided through an MI Web site registration form. If any false, inaccurate, untrue, unauthorized or incomplete information is submitted by you, MI, in addition to MI’s other rights and remedies, reserves the right to terminate or suspend your access and use of the MI Web sites. You represent and warrant that you will not impersonate any other Person, whether actual or fictitious, when using the MI Web sites, or defame, libel, slander, threaten, stalk, harass or otherwise harm any Person, including, without limitation, MI, through your use of the MI Web sites. You represent and warrant that you shall neither send, nor assist other Persons in sending, numerous unsolicited commercial or other e-mail messages to MI; and, that you shall neither initiate, cause or support nor assist other Persons in initiating, causing or supporting, a denial of service attack or other like disruptive activity on the MI Web sites or any servers or other computer resources of, or used by, MI. 9. Proprietary Rights. The content of the MI Web sites includes, without limitation, (i) MI's trademarks, service marks, logos, designs, slogans, brands, and brand names, trade dress and trade names and other distinctive identification (collectively "MI Marks"); and (ii) information, data, data feeds, materials, interfaces, computer code, data compilations, databases, products, services, software applications and tools, applets, text, pictures, images, animation, sounds, music, graphics, logos, button icons, tables, drawings, charts, sketches, photographs, audio and video material, interactive works and artwork, and (iii) the design, structure, selection, compilation, assembly, coordination, expression, functionalities, applications, look and feel, and arrangement of any content contained in or available through the MI Web sites (the items identified in subsections (i) (ii) and (iii) shall be collectively referred to herein as "MI Content"). MI Content is the property of, and title thereto remains with and is reserved to, MI, its licensors, sponsors, partners, advertisers, content providers or other third parties and is protected by law including, but not limited to, United States copyright, trade secret, patent, and trademark law, as well as other state, national and international laws, treaties and regulations. The reproduction, transmission, distribution, sale, resale, publication, broadcast, circulation or other dissemination (including, without limitation, posting on public bulletin boards, chatrooms, blogs, social media walls or other like media) of any MI Content by you, or by you through any other Person, is prohibited unless express written consent is separately obtained from the MI or the owner of such content if the MI is not the owner. Any use of the MI Marks without MI's express written consent is strictly prohibited. You may not alter, delete, obscure or conceal any copyright, trademark, proprietary or other notices, credits, labels or legends appearing in the MI Content, including, without limitation, any such notices, credits, labels or legends appearing on any MI Content you are permitted to download, transmit, display, print, reproduce or otherwise use from the MI Web sites. 10. Responsibility for Use of the Internet and MI Web sites. Use of the Internet and the MI Web sites is solely at your risk and is subject to all applicable local, state, national and international laws and regulations. MI does not guarantee the confidentiality or security of any communication or other material transmitted to or from the MI Web sites over the Internet or other communication network. MI is not, and shall not be, obligated to correct or update the MI Web sites or the MI Content and MI is not, and shall not be, liable for omissions, typographical errors, other errors, or out-of-date or otherwise incomplete information which may appear on, or be accessible by or through the use of, the MI Web sites. You agree that you are and shall be solely responsible for any and all liabilities arising from your access or use of the MI Web sites or the MI Content as well as from the disclosure of any information obtained therefrom. 11. Professional Advice Disclaimer. The MI Content is provided for informational purposes only and is not, and is not intended as, legal, risk management, insurance, medical, accounting, tax, or other professional advice or other advice whatsoever, or as a substitute for your consulting with your advisors (whether legal, risk management, insurance, medical, accounting, tax, other professional or otherwise). The MI Content does not establish medical standards of care. Standards of care vary depending on the unique presentation of each patient. For the avoidance of doubt, the MI Content is not a substitute for the reasonable discretion of skilled and informed clinicians. 12. Third Party Information. The MI Web sites may feature materials, information, products, and services provided by third parties. Any such information, including but not limited to, articles, press clippings, opinions, advice, statements, services, offers or other information made available by third parties such as content providers and other users of the MI Web sites are those of the respective third party and not of MI or its affiliates. MI makes no representation or warranty whatsoever with respect to, and MI does not guarantee, sponsor or endorse whatsoever, the quality, non-infringement, accuracy, completeness, timeliness, or reliability of such third party materials, information, services or products. 13. Advertisers. The MI Web sites may contain advertisements of third parties. The inclusion of advertisements on the MI Web sites does not imply endorsement of the advertised products or services by MI. MI shall not be responsible for any loss or damage of any kind incurred as a result of the presence of such advertisements on the MI Web sites. Further, MI shall not be responsible or liable for the statements or conduct of any third party advertisers appearing on the MI Web sites. You shall be solely responsible for any correspondence or transactions you have with any third party advertisers. 14. Links to Third Party Web sites. The MI Web sites may provide links (including, without limitation, any link through an on-line banner advertisement) to other sites on the Internet for your convenience. These other sites are maintained by third parties over which MI exercises no control. The appearance of any such third party links does not serve to, and is not intended to, endorse, sponsor, promote, represent, warrant, guarantee or approve any particular company or product or any other services, causes, campaigns, Web sites, content, or information. MI undertakes no obligation or responsibility whatsoever to you to monitor such other sites on the Internet and is not responsible in any way whatsoever for any information contained on such sites, for the privacy policies of such sites, for the practices or activities of such sites or for any information you may provide to such other sites. If you decide to access any of the third party sites linked to the MI Web sites, you do so entirely at your own risk. 15. Links to MI Web sites and MI Content. Links posted by third parties to the MI Web sites and/or MI Content may not use the MI trademark or logo or other MI Marks and shall not suggest that MI promotes or otherwise endorses, sponsors, represents, warrants, guarantees or approves any third party products, business relationships, services, causes, campaigns, Web sites, content, or information. Any links to any portion of the MI Web sites shall be the responsibility of the linking party. MI reserves the right to require any linking party to disable or remove any link that violates MI's rights or causes interruption or deterioration of MI Content or otherwise, in the sole good faith view of MI, damages or threatens to damage MI, MI Content or the MI Parties (as defined below in Section 16). You may not frame or utilize framing techniques to enclose any MI Marks and you may not use any meta tags or any other hidden text utilizing the MI Marks without MI’s express written authorization. You may not forge headers or otherwise manipulate identifiers in order to disguise the origin of the MI Web sites or any MI Content or anything published, distributed, submitted or otherwise transmitted through or to the MI Web sites. Subject to your compliance with all of the terms and conditions of these Terms of Use, you are granted a limited, revocable, personal, non-exclusive, non-transferable license to create a hyperlink to the MI home page provided: (1) the link does not portray any of the MI Parties (as defined below in Section 16), or their goods, services, licenses or other products in a false, misleading, derogatory or otherwise offensive matter; and, (2) the link does not use any of the MI Marks without MI’s express written authorization. 16. Warranties and Other Matters. Exclusive Remedy. As your sole and exclusive remedy for any defect, error or other problem with any Website Products (as defined below in this Section 16) for which you have paid money to MI and for which MI is responsible, MI shall take reasonable commercial steps to repair said Website Product or, in MI’s discretion, provide you with a reasonably equivalent substitute thereof (the “Repair Remedy”); provided, that MI reserves the right at any time to elect not to provide, or to abort, the Repair Remedy and, in conjunction therewith, to terminate your use of said Website Products or any said substitute thereof and refund the amount of money you actually paid MI for said Website Product; and, by such termination and payment, you shall have no, and you shall never assert any, other right, remedy, recourse or claim whatsoever (for damages or otherwise) against MI Parties (as defined below). However, in addition to MI’s rights and defenses under other provisions of these Terms of Use, MI shall not be obligated or otherwise responsible to provide said Repair Remedy if (1) you have modified, configured or otherwise changed said Website Product without MI’s written authorization; (2) said Website Product has been misused, abused or damaged in any respect; (3) MI has not been promptly notified of the existence and nature of such defect, error or other problem upon its discovery; or, (4) you, or those affiliated with you, have used said Website Product beyond the scope of the license, or in violation of other restrictions, in these Terms of Use. Warranties and Other Matters Disclaimed. THE MI WEB SITES AND MI CONTENT ARE PROVIDED "AS IS" AND "AS AVAILABLE." IF YOU BROWSE, DOWNLOAD, COPY, DISTRIBUTE, DISPLAY, PREPARE DERIVATE WORKS OF, ADAPT OR OTHERWISE USE THE MI WEBSITE AND MI CONTENT, YOU DO SO AT YOUR OWN DISCRETION AND RISK. THE TERM “WEBSITE PRODUCTS” MEANS ANY PRODUCTS, GOODS, CONTENT, SERVICES, LICENSES, INFORMATION, MATERIAL OR OTHER RIGHTS, THINGS OR ITEMS PURCHASED, LICENSED OR OTHERWISE OBTAINED OR USED BY YOU THROUGH OR FROM THE MI WEB SITES. NEITHER MI, ITS AFFILIATES, SUBSIDIARIES, DIRECTORS, MANAGERS, OWNERS, INSUREDS, EMPLOYEES, OFFICERS, OR TRUSTEES NOR ANY OF MI’S AGENTS, REPRESENTATIVES, SUPPLIERS, CONSULTANTS, CONTRACTORS, ADVERTISERS, PROMOTIONAL PARTNERS, OR LICENSORS (COLLECTIVELY "MI PARTIES") GIVE, MAKE OR PROVIDE ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION, HEREBY EXPRESSLY DISCLAIMING ANY REPRESENTATION OR WARRANTY WHATSOEVER THAT (i) THE MI WEB SITES (OR THE USE THEREOF), OR MI CONTENT (OR THE USE THEREOF), OR ANY RESULTS THAT MAY BE OBTAINED OR USED BY YOU FROM THE MI WEB SITES OR THE MI CONTENT, ARE COMPLETE, TRUE, ACCURATE, CORRECT, SUITABLE, APPROPRIATE, RELIABLE OR NON-INFRINGING OR OTHERWISE FREE OF ERRORS, DEFECTS, OMISSIONS, MISTAKES OR OTHER PROBLEMS; (ii) THE MI WEB SITES (OR THE USE THEREOF), OR MI CONTENT (OR THE USE THEREOF), OR ANY RESULTS THAT MAY BE OBTAINED OR USED BY YOU FROM THE MI WEB SITES OR THE MI CONTENT IS ORIGINAL, FREE OF LIBELOUS OR OTHERWISE DEFAMATORY STATEMENTS OR CONTENT, OR OTHERWISE IN COMPLIANCE WITH LAW; (iii) ACCESS TO THE MI WEB SITES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; (iv) THE QUALITY, ACCURACY, CORRECTNESS, APPROPRIATENESS, TRUTHFULNESS, SUITABILITY, RELIABILITY, PERFORMANCE, CONDITION, CAPACITY, SECURITY, PRIVACY, TIMELINESS, USEFULNESS, SAFETY, FUNCTION OR FEATURES OF WEBSITE PRODUCTS; (v) WEBSITE PRODUCTS WILL MEET YOUR EXPECTATIONS, REQUIREMENTS, CERTIFICATIONS, NEEDS OR OTHER CRITERIA; OR (vi) MI CONTENT WILL REMAIN UNCHANGED OR ACCESSIBLE ON THE MI WEB SITES. ALL WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, ARE DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF: MERCHANTABILITY; FITNESS FOR A PARTICULAR PURPOSE; LACK OF, OR FREE FROM, LATENT, HIDDEN, REDHIBITORY, PATENT OR OTHER DEFECTS; ARISING BY STATUTE OR OTHERWISE IN LAW; ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USE OF OR IN TRADE; AND/OR NON-INFRINGEMENT, NON-MISAPPROPRIATION OR NON-VIOLATION OF INTELLECTUAL PROPERTY. THE TERM “INTELLECTUAL PROPERTY”, IN ADDITION TO ITS ORDINARY MEANING, MEANS, FOR THE AVOIDANCE OF DOUBT, PATENTS, TRADE SECRETS, TRADEMARKS, SERVICE MARKS, COPYRIGHTS, LITERARY RIGHTS, AUTHOR RIGHTS OR OTHER PROPRIETARY RIGHTS OR RIGHTS RELATED TO UNFAIR COMPETITION OR THE LIKE. NOTHING IN THIS SECTION 16 IS, OR IS INTENDED AS, A GRANT OF ANY LICENSE OR RIGHT WHATSOEVER TO BROWSE, DOWNLOAD, COPY, DISTRIBUTE, DISPLAY, PREPARE DERIVATE WORKS OF, ADAPT OR OTHERWISE USE THE MI WEBSITE AND MI CONTENT. 17. Limitations of Liability. CAP ON DAMAGES. IN ADDITION TO MI’S OTHER RIGHTS AND DEFENSES IN THESE TERMS OF USE, THE CUMULATIVE LIABILITY OF MI FOR ALL CLAIMS WHATSOEVER RELATED TO WEBSITE PRODUCTS (AS DEFINED IN SECTION 16) PURCHASED FROM, OR LICENSED TO YOU BY, MI, INCLUDING ANY CAUSE OF ACTION SOUNDING IN, OR IN THE NATURE OF, CONTRACT, TORT, QUASI-CONTRACT, STATUTORY OR STRICT LIABILITY, SHALL NOT EXCEED THE LIABILITY CAP. THE TERM “LIABILITY CAP” MEANS THE AMOUNT OF MONIES THAT YOU ACTUALLY PAID TO MI FOR SAID PURCHASED OR LICENSED PRODUCT. WAIVER OF DAMAGES. THE MI PARTIES SHALL NOT BE LIABLE, AND DISCLAIM ANY AND ALL LIABILITY, FOR ANY CLAIM, LOSS, FINE OR DAMAGE, DIRECT OR INDIRECT, INCLUDING, WITHOUT LIMITATION, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, STATUTORY, WILLFUL, RELIANCE, SPECIAL, ENHANCED, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ANY OF THE FOLLOWING: LOSS OF PROFITS, REVENUE, PATRONAGE OR BUSINESS; DELAY DAMAGES; DAMAGE TO REPUTATION; LOSS OF GOODWILL; LOSS OR CORRUPTION TO DATA), EVEN IF YOU OR OTHER PERSONS HAVE ADVISED MI OR ANY OTHER OF THE MI PARTIES OF THE POSSIBILITY OR CERTAINTY OF SUCH DAMAGES. FOR THE AVOIDANCE OF DOUBT, AND WITHOUT LIMITING IN ANY WAY WHATSOEVER THE FORGOING, THE MI PARTIES SHALL NOT BE LIABLE, AND DISCLAIM ANY AND ALL LIABILITY, FOR ANY CLAIM, LOSS, FINE OR DAMAGE, DIRECT OR INDIRECT, INCLUDING, WITHOUT LIMITATION, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, STATUTORY, WILLFUL, RELIANCE, SPECIAL, ENHANCED, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER IN CONNECTION WITH, AS A RESULT OF, OR ARISING FROM OR OUT OF ANY ONE OR MORE OF THE FOLLOWING: (i) THE USE OF OR INABILITY TO USE, OR THE INTERRUPTION, CESSATION OR SUSPENSION IN USE OF, THE MI WEB SITES AND/OR ANY MI CONTENT; (ii) ANY INTERRUPTION IN THE AVAILABILITY OF THE MI WEB SITES AND/OR MI CONTENT; (iii) ANY LOSS OF, OR CORRUPTION TO, DATA AND/OR FROM ANY EQUIPMENT FAILURE; (iv) THE PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, CONTENT, PRODUCTS, LICENSES OR OTHER RIGHTS, THINGS OR ITEMS RESULTING FROM ANY PROBLEMS WITH THE WEBSITE PRODUCTS (AS DEFINED IN SECTION 16), OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE MI WEB SITES; (v) UNAUTHORIZED ACCESS TO, DISCLOSURE OF, ALTERATION, CORRUPTION OF OR DAMAGE TO YOUR TRANSMISSIONS OR DATA; (vi) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE MI WEB SITES; (vii) ANY DELAY OR FAILURE OF THE MI WEB SITES ARISING OUT OF CAUSES BEYOND MI'S CONTROL; (viii) THE USE OF, REFERENCE TO, OR RELIANCE ON, THE MI CONTENT; (ix) ANY THIRD PARTY MATERIALS, INFORMATION, PRODUCTS, CONTENT AND SERVICES CONTAINED ON, OR ACCESSED THROUGH, THE MI WEB SITES (x) ANY BUG, VIRUS, TROJAN HORSE, WORM, TRAP DOOR, BACK DOOR, TIMER, CLOCK, OR OTHER LIMITING, COMPROMISING, DISRUPTING, DISABLING OR SABOTEUR ROUTINE, INSTRUCTION, SOFTWARE, MEANS OR DESIGN OR THE LIKE, WHICH MAY BE TRANSMITTED, PROPAGATED OR OTHERWISE DELIVERED TO OR THROUGH THE MI WEB SITES; (xi),ANY CONTENT, MATERIALS, ACCURACY OF INFORMATION, QUALITY, APPROPRIATENESS, TRUTHFULNESS, SUITABILITY, RELIABILITY, PERFORMANCE, CONDITION, CAPACITY, SECURITY, PRIVACY, FUNCTION OR FEATURES OF THE PRODUCTS, SERVICES, CONTENT, LICENSES, MATERIALS OR OTHER RIGHTS, THINGS OR ITEMS PROVIDED BY OR ADVERTISED ON THIRD PARTY WEB SITES; OR (xii) ANY OTHER MATTER RELATING TO THE MI WEB SITES OR MI CONTENT. In the event you are dissatisfied with, or dispute, these Terms of Use, the MI Web sites and/or the MI Content, your sole and exclusive right, remedy and recourse is to terminate your use of the MI Web sites, even if that right, remedy or recourse is deemed to fail of its essential purpose. You confirm that MI has no other obligation, liability or responsibility whatsoever to you or any other Person. 18. Exclusions permitted by law. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN SECTIONS 16 AND 17 WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND MI'S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF SAID JURISDICTION. 19. Indemnification. To the fullest extent permitted by law, you shall defend, indemnify, protect and hold harmless the MI Parties from and against all claims arising from or in any way related to your use of the MI Web sites and/or MI Content, a violation or other breach by you of these Terms of Use, or any other actions connected with your use of the MI Web sites and/or MI Content, including, without limitation, any liability or expense, losses, fines, damages (actual and consequential), suits, judgments, litigation costs, investigatory fees and attorneys’ fees. MI will provide prompt written notice of any such claims, but failure to provide such notice, or to provide it promptly, will not release you from any of your obligations pursuant to this Section 19 except to the extent that you are clearly actually prejudiced by such failure, and will not relieve you from any other liability that you may have to the MI Parties other than under this Section 19. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PROVISIONS OF THIS SECTION 19 ARE ENFORCEABLE AGAINST YOU NOTWITHSTANDING THE NEGLIGENCE, FAULT OR ERROR OF MI. 20. Term and Termination. These Terms of Use will take effect at the time you begin using the MI Web sites. MI reserves the right, with or without notice, at any time, one or more times, and for any reason, or no reason, to deny you access to the MI Web sites or to any portion thereof, and to terminate (subject to the survivals set forth in Section 21) these Terms of Use. You may terminate these Terms of Use at any time by ceasing to use the MI Website, subject to Section 21. Upon termination, you must destroy all copies of any portion of the MI Web sites, including, without limitation, any MI Content, in your possession. 21. Survival. Your obligations under, as well as the provisions of, the following Sections herein shall survive any termination, expiration, dissolution, rescission, cancellation, nullification, voiding, unwinding or otherwise end of these Terms of Use: Sections 1, 2, 6, 9, 10, 11, 12, 13, 14, 15 (except the last sentence thereof), 17, 18, 19, 20, 22, 23, 24, 25, 27, 28, 29, 30 and 31; and, also the following: (a) the last sentence of each of Sections 1, 3 and 7; (b) in Section 16, the paragraph bearing the heading “Warranties and Other Matters Disclaimed”; (c) the unnumbered paragraph near the beginning of these Terms of Use which bears the heading “Parental Controls; User Of Age and Discretion. 22. Arbitration; Venue. Any claim, dispute, or controversy arising out of, directly or indirectly relating to, or in connection with the MI Web sites, the MI Content or these Terms of Use, or the performance, enforcement, breach, termination, validity or interpretation thereof (including, without limitation, settlement and resolution of the scope of these arbitration provisions) (collectively “Claim”) shall be settled by binding, nonappealable arbitration in accordance with the Commercial Rules of the American Arbitration Association and, to the extent not inconsistent therewith, the Federal Arbitration Act (9 USC §§ 1 et seq.); provided, that the arbitrators shall have no less than the powers granted to arbitrators under the Federal Arbitration Act except as such powers are expressly limited by this Section 22. Any such Claim shall be brought solely by you as an individual and not as part of, or as a representative of, a class. The arbitration shall be held in Metairie, Louisiana. Judgment by the arbitration panel may be entered by the courts identified below. The arbitration panel shall be composed of three arbitrators as follows: (1) an attorney with at least ten (10) years experience of which a substantial portion of such experience shall be in connection with transactional or litigation matters primarily related to representing insurance companies; (2) an individual who is not a lawyer and who has at least ten (10) years experience in creating or hosting web sites; and (3) the other arbitrator shall be a business person (whether or not a lawyer) with at least ten (10) years experience in the business of developing or selling online professional education materials. All submissions to the arbitrator, the proceedings and the award shall be private and strictly confidential; provided, that the forgoing does not restrict either you or MI where served with, or subject to, a valid and lawful subpoena, discovery or investigative order from a third party (collectively, “Third Party Discovery) and, in such case, the party so served, or subject to, said Third Party Discovery shall, to the extent not prohibited by law, give prompt notice to the other party and cooperate with said other party in obtaining any protective order. The arbitration shall be conducted with only such discovery as ordered by the arbitrator or agreed upon by you and MI (the “Authorized Discovery”). As to compelling discovery from a third party (whether by subpoena or otherwise and whether the testimony of, the production of documents from or the inspection of any premises of, a third party), you or MI may, if available, take advantage of, and initiate and resort to the use of, any federal or state court jurisdiction or power but solely for and limited to the purpose of obtaining such Authorized Discovery (for example, but not limited to, filing a notice or other pleading in a federal court where a third party witness resides in order to obtain a subpoena or other order to compel discovery from the third party witness - assuming such federal court has the power to do so) and thus not for any other purpose. Except as aforesaid, only the AAA Commercial Rules, and not the federal or state law of any jurisdiction in which the arbitration is pending, shall govern discovery matters. The arbitrator’s award shall be final, binding and nonappealable. The arbitrator’s award shall be a “simple” award (which may contain orders to perform, do or not do anything) and so shall not have any written reasons or findings of fact. The Twenty-Fourth Judicial District Court of the State of Louisiana and/or the United States District Court for the Eastern District of Louisiana shall have exclusive jurisdiction and venue over (i) any action concerning the enforcement of an arbitration award, or (ii) if arbitration is not permitted by law, then any Claim you have arising out of or relating to the MI Web sites, the MI Content or these Terms of Use. You agree to unconditionally and irrevocably submit to the exclusive jurisdiction and venue of such courts and you will not object to such jurisdiction and venue on the grounds of lack of personal jurisdiction, inconvenient forum or otherwise. YOU AND MI IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THE MI WEB SITES, THE MI CONTENT OR THESE TERMS OF USE. Except as stated in this Section 22, MI reserves all rights and remedies available to it, in law or equity, with respect to any matter relating to the MI Web sites, the MI Content or these Terms of Use. Except for remedies expressly provided for in these Terms of Use, the arbitration panel shall not be empowered to award damages in excess of actual damages or other punitive damages. Where the arbitrators shall determine that an arbitration proceeding was commenced by a party frivolously or without a basis, or primarily for the purpose of harassment or delay, the arbitrators may assess such party the cost of such proceedings incurred by one or more of the other parties to the proceedings, including reasonable attorneys’ fees. In all other cases, each party to the arbitration proceeding shall bear its own costs and its pro rata share of the fees and expenses charged by the arbitrators and the American Arbitration Association in connection with any arbitration proceedings. The arbitrators shall have the authority to require specific performance or impose other equitable relief hereunder, as well as imposing money damages and awards of attorneys' fees to the prevailing party. The arbitrators shall not use, and these Terms Of Use expressly negates, amiable compositeur, ex aequo et bono, and “natural justice and equity.” Notwithstanding the foregoing, either you or MI shall have the right at any time, whether during the pendency of the arbitration or otherwise, to seek any interim injunctive or other equitable relief in either Twenty-Fourth Judicial District Court of the State of Louisiana and/or the United States District Court for the Eastern District of Louisiana (with the option to seek such redress in such other court of competent jurisdiction if neither of said courts has personal jurisdiction over all relevant parties) to protect the patents, copyrights, trademarks, trade dress, image, designs or other proprietary or intellectual property of either you or MI pending, or during the pendency of, the arbitration proceeding. Neither you or MI consents or agrees to any arbitration on a class or representative basis; and, the arbitrator shall have no authority to proceed with an arbitration on a class or representative basis. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. Any dispute, claim or controversy as to the enforceability of this arbitration provision’s restriction on your right to participate in or pursue a class action or classwide arbitration shall be brought only in the United States District Court for the Eastern District of Louisiana or Twenty-Fourth Judicial District Court of the State of Louisiana. 23. Governing Law; Attorneys’ Fees. These Terms of Use and all matters regarding your use of the MI Web sites shall be governed by, construed in accordance with, and enforced under the laws of the State of Louisiana applicable to contracts made and executed and wholly performed in the State of Louisiana, without regard to choice of law principles. For the avoidance of doubt, this means that Louisiana law will be applied to the interpretation and enforcement of these Terms of Use even for non-Louisiana residents or users. Neither the Uniform Computer Information Transaction Act nor the United Nations Convention on Contracts for International Sale of Goods apply and their applicability is expressly excluded. Printed copies of any and all agreements and/or notices in electronic form shall be admissible in any legal, investigative or regulatory proceedings. In the event of any breach of these Terms of Use by you, you will reimburse MI for all reasonable expenses (including, without limitation, costs, reasonable investigatory fees and attorneys’ fees) incurred by MI in enforcing any terms or provisions of these Terms of Use related to said breach to the extent MI prevails, either in the arbitration or otherwise, in the enforcement thereof. 24. Waiver and Severability. The failure of, or delay by, MI to exercise or enforce any right or provision in these Terms of Use shall not constitute a waiver of such right or provision. MI, by mere lapse of time, without giving notice or taking other action hereunder, shall not be deemed to have waived any breach by you of any of the provisions of these Terms of Use. Further, MI’s waiver of a particular breach of these Terms of Use by you shall not be construed as, or constitute, a continuing waiver of such breach or of other breaches of the same or other provisions of these Terms of Use. If any provision of these Terms of Use is found by a court of competent jurisdiction or arbitrator to be invalid, illegal, or unenforceable, such provision shall be enforced to the fullest extent of the law or, if such is not possible or permitted, then stricken (bearing in mind that the least amount of striking as required to make such provision valid, legal and enforceable is to be done); and, all other provisions shall remain in full force and effect. To the extent that said court or arbitrator has the power to reform and conform any provision, said court or arbitrator is hereby authorized and directed, having found said provision invalid, illegal or unenforceable, to reform and conform said provision to make it valid, legal and enforceable and as close as possible to the spirit and intent of said provision. 25. No Agency, Partnership or Third Party Beneficiary. You agree that neither these Terms of Use nor your use of the MI Web sites or MI Content: (a) creates any partnership, joint venture or employment relationship between you and MI; or, (b) creates any third party beneficiary rights. You further acknowledge and agree that you have no agency or mandate whatsoever from MI. You further agree that these Terms of Use are a two party agreement between you and MI. You also agree that these Terms of Use are not a collective or association agreement. For the avoidance of doubt, you agree that you are not a third party beneficiary to or under any other agreement (whether or not similar to these Terms of Use) which MI had or has, now or hereafter, with any third party. You agree that no third party has or enjoys any rights, benefits, claims, defenses or other actions whatsoever under these Terms of Use. 26. Contact Information. If you have any questions or concerns regarding these Terms of Use or the MI Web sites, please contact us at contact MI. 27. Statute of Limitations; Limitation of Actions. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the MI Web sites must be filed by you within one (1) year after such claim or cause of action arose or be forever barred. 28. Use of MI Web sites and MI Content outside of the United States. MI makes no claims regarding access or use of the MI Web sites or the MI Content outside of the United States. If you use or access the MI Web sites or the MI Content outside of the United States, you do so at your own risk and are responsible for compliance with the laws and regulations of your jurisdiction as well as these Terms of Use. 29. Notices. Unless expressly stated otherwise herein, any notice or demand to be given by you to MI shall be in writing and shall be deemed given (a) on the next business day after timely delivery to an overnight courier with signature receipt of delivery, or (b) on the third business day after deposit in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid) and, whether under (a) or (b), sent to the following: Medical Interactive Community, LLC With a copy to: 30. Interpretation. These Terms of Use adopt a practice of using parenthetical expressions to clarify or otherwise express its intent; and, all parenthetical expressions used herein are a part of these Terms of Use and are to be enforced the same as any other forms of expression in these Terms of Use. These Terms of Use shall be construed and interpreted liberally in favor of MI. The headings are for reference or convenience only purposes and are not, and shall not, have any legal or contractual effect or otherwise and are not, and shall not, otherwise be considered a part of these Terms of Use. 31. Complete Agreement. These Terms of Use, together with any revisions, any Additional Terms or Conditions incorporated by reference, and any Click-through Agreement, constitutes the entire agreement between you and the MI relating to the MI Web sites and its use by you, and supersedes any previous written or oral communication regarding use of the MI Web sites. These Terms and Conditions of Use were last revised on September 8, 2011. |
