The content of this Website and services offered through the Website are for informational use only. This Website and any information contained on or provided through it is provided on an "as is" basis. That means that the information contained on or provided through this Website is intended for general understanding and education. Any access to this Website is voluntary. Medical Database regards all access as voluntary and at the sole risk of the user.
Nothing contained in this Website is intended, or should be considered, or used as a substitute for, medical advice, diagnosis or treatment. This Website and its services do not constitute the practice of any medical, nursing or other professional health care advice, diagnosis or treatment. Users should always seek the advice of a physician or other qualified health care provider with any questions regarding personal health or medical conditions. Never disregard, avoid or delay in obtaining medical advice from your doctor or other qualified health care provider because of information you have received on this Website. If you have or suspect that you have a medical problem or condition, please contact a qualified health care professional immediately.
Medical Database reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, all or any part of this Website and the services offered through this Website, with or without notice.
Some content on this Website is available for access and use only by separate license and subject to a license fee and the terms and conditions of such license. Any attempted unauthorized access to that information is strictly prohibited and will result in the termination of your use of the Website and could possibly subject you to further legal action.
Changes are periodically made to the information contained herein; these changes will be incorporated in new editions of the Website. Medical Database may make improvements and/or changes in the products(s) and/or the program(s) described in this publication at any time.
Because of the designated purpose of this Website and the services it provides, you agree that Medical Database does not constitute a service that targets any one community, user group, business or industry. Because the Website is designed for educational purposes, you also agree that it does not constitute "doing business" in any specific jurisdiction or soliciting business for us or any of our affiliated companies, subsidiaries or our parent company or establishing "minimum contacts" with any jurisdiction outside of the state of California. Your use of this Website and any dispute arising out of such use of the Website, you agree that any claims or disputes arising from your use of the Website shall be governed by the laws of the State of California and United States of America without giving effect to any principles that may provide the application of the law of another jurisdiction. You also agree to submit to the personal jurisdiction of the state courts and federal courts located within the State of California for the purpose of litigating all such claims or disputes. Notwithstanding the foregoing, we may seek injunctive or other equitable relief to protect our intellectual property rights in any court of competent jurisdiction.
SPECIAL ADMONITION FOR INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all local rules including, without limitation, rules about the Internet, data, e-mail, or privacy. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
DISCLAIMER OF WARRANTIES AND LIABILITY
Information provided through this Website is provided "as is" without any express or implied warranty of any kind, including warranties of merchantability, fitness for a particular purpose, or non-infringement. In no event will Medical Database be liable to any party for any damages of any kind, including but not limited to direct, indirect, special or consequential damages for any use of this Website or any linked Website including, without limitation, lost profits, loss of use, business interruption, loss of programs or other data, whether in an action based on contract, negligence or other tortuous action, even if Medical Database is expressly advised of the possibility of such damages. Medical Database and our content providers, cannot and do not guarantee or warrant against errors, omissions, delays, interruptions or losses, including loss of data. Users of this Website are responsible for maintaining a means external to Medical Database for the reconstruction of any lost data.
Some jurisdictions do not allow the exclusion or limitation of warranties or damages in certain types of agreements, so the above exclusions or limitations may not apply to you. To the extent we may not, as a matter of applicable law, disclaim any warranty or limit our liability, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such law.
This web site could include technical inaccuracies or typographical errors. Changes are periodically made to the information herein; these changes will be incorporated in new editions of the website. Medical Database may make improvements and/or changes in the products(s) and/or the program(s) described ON THE WEBSITE at any time.
Medical Database does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Website. Reliance on any information provided by Medical Database, by its contributors, or other visitors to the Website is solely at your own risk. We also do not warrant or guarantee that files available for downloading through the Website will be free of infections or viruses, worms, Trojan horses or other code that contains contaminating or destructive properties.
We cannot guarantee that the information contained on this Website will not be considered offensive or unacceptable to those who access the Website. Some of the information on the Website may be considered graphic due to the nature of the information contained therein. If you find any of the information to be graphic or offensive, please do not access the Website.
You may not use this Website to post, disseminate or communicate any obscene, lewd, excessively violent, harassing, sexually explicit or otherwise objectionable subject matter. We assume no responsibility or liability for this material if posted by a user of the Website. We try to monitor the Website and delete objectionable material. However, if you become aware of any such material on the Website, please contact us as directed in the “Contact Us” section of the Website.
Without assuming any obligation to do so, we may delete any content or suspend any account associated with it, that in our sole judgment violates these Terms or that may be offensive or illegal, or violate the rights, harm, or threaten the safety of any person. We assume no responsibility for monitoring the Website for inappropriate content or conduct.
The following is a partial list of the kind of content and activity that is prohibited on our Website and through the use by our registered members. We reserve the right, in our sole discretion, to reject, refuse to post or remove any posting (including private messages) by you, or to restrict, suspend, or terminate your access to all or any part of the Website at any time, with or without prior notice, and without liability if we believe you are in violation of this provision. We further reserve the right to investigate and take appropriate legal action against anyone who, in our sole discretion, violates this provision, including without limitation, reporting it to, and cooperating fully with, law enforcement authorities. Prohibited content and activity includes, but is not limited to, content or activity that in the sole discretion of Medical Database:
- may constitute or contribute to a crime or tort;
- is illegal, misleading, harmful, malicious, hateful, threatening, bullying, harassing, discriminatory, invasive of personal privacy or publicity rights, humiliating to other people (publicly or otherwise), libelous, pornographic, or that contains nudity (other than for medically related information) or graphic or gratuitous violence;
- communicates any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships, or otherwise infringes or violates someone else's rights;
- involves sending or otherwise posting unauthorized commercial communication (such as spam);
- engages in unlawful multi-level marketing, such as a pyramid scheme;
- advertises or otherwise markets controlled products or other mature content without appropriate age-based restrictions;
- solicits login information or accessing an account belonging to someone else;
- solicits or posts personal identifying information from other users, or knowingly collects any information from minors under the age of 13;
- obscures the advertisements we serve on our Website;
- makes automated use of the system, such as using scripts, bots, spiders or scrapers, to send messages, log into accounts, or collect Users' Content or information;
- interferes with, disrupts, impairs or creates an undue burden on the Website or the networks or services connected to the Website;
- attempts to impersonate another person or entity, including, but not limited to, a Medical Database official, to falsely state or otherwise misrepresent your affiliation with a person or entity;
- provides false personal information on the Website, or creates an account for anyone other than yourself without permission;v
- involves selling or otherwise transferring your account without our prior permission;v
- creates and maintains a website that (i) redirects to another web page or (ii) stores or hosts content for remote loading by other web pages;
- uploads viruses or other malicious code;
- uses the Website to hyperlink to content not permitted on the Website;
HYPERLINKS & THIRD PARTY SITES
Additionally, our Website may contain hyperlinks or any other form of link or redirection of your connection to other sites ("Third Party Sites"). Links to these Third-Party Sites are provided solely for your convenience and in no way, does the inclusion of any link on the Website imply our affiliation or endorsement of the linked site, their business practices (including their privacy policies) or any information therein. We expressly disclaim responsibility for the accuracy, quality, legality, nature, availability or reliability of Third Party Sites linked to, by or through our Website. ACCESS AND USE OF THIRD PARTY SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON THIRD PARTY SITES OR AVAILABLE THROUGH THIRD PARTY SITES, IS SOLELY AT YOUR OWN RISK.
All trademarks reproduced on this Website, which are not the property of, or licensed to us, are acknowledged on the Website.
You may NOT create a link to this Website from another website or document without our prior written consent. To obtain consent, please email your request to beqajs@Yahoo.com or send regular mail to: P.O Box 62554, Irvine, CA 92602.
This Website contains material which is owned by or licensed to us. This material includes, but is not limited to, the design, layout, look, appearance and graphics. Reproduction is prohibited other than in accordance with the copyright notice, which forms part of these terms and conditions.
Please refer to the Medical Database Copyright Usage Requirements for additional information concerning copyrights.
Unauthorized use of this Website may give rise to a claim for damages and/or be a criminal offense.
To the fullest extent permitted by applicable law, by using this Website you hereby agree to indemnify, defend and hold harmless Medical Database, its affiliates and their respective officers, directors, employees, agents, licensors, suppliers and any third party information providers to the Website from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, of any kind or nature, arising from or relating to, any actual or alleged breach of these Terms and Conditions by you or anyone using your account. If we assume the defense of such a matter, you will reasonably cooperate with us in such defense.
Arbitration Agreement & Waiver of Certain Rights
You and Medical Database agree that we will resolve any disputes between us through binding and final arbitration instead of through court proceedings. You and Medical Database hereby waive any right to a jury trial of any Claim. All controversies, claims, counterclaims, or other disputes arising between you and Medical Database relating to these Terms and Conditions or the Web Site or our mobile applications (each a "Claim") shall be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association ("AAA Rules"). The arbitration will be heard and determined by a single arbitrator. The arbitrator's decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Medical Database will pay as much of the administrative costs and arbitrator's fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
This arbitration agreement does not preclude you or Medical Database from seeking action by federal, state, or local government agencies. You and Medical Database also have the right to bring qualifying claims in small claims court. In addition, you and Medical Database retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with these Terms and Conditions, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms and Conditions.
Neither you nor Medical Database may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or Medical Database's individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.v
If any provision of this Section is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section shall continue in full force and effect. No waiver of any provision of this Section of the Terms and Conditions will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of this Terms and Conditions. This Section of the Terms and Conditions will survive the termination of your relationship with Medical Database.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR MEDICAL DATABASE WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
Any action relating to the use of the Website, or any transaction with Medical Database must be brought in the state or federal courts located in the Orange County, California. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.v
These Terms and Conditions will be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws rules or provisions.v
Under no circumstances will we be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond our reasonable control.
If any provision of these Terms and Conditions is found to be unlawful or unenforceable, then that provision will be deemed severable from these Terms and Conditions and will not affect the enforceability of any other provisions.
We may assign our rights and obligations under these Terms and Conditions, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law.v
Version 2 Effective date 01.20.17
LDS SUBSCRIPTION AGREEMENT
This LDS Subscription Agreement (the “Agreement”) is entered into by and between Medical Database, Inc. (“Company”), and the individual ordering a subscription to access Company’s LDS® platform further described below (“Subscriber”). Company and Subscriber are each individually a “Party” and collectively the “Parties”. By using the LDS Service (as hereafter defined), Subscriber agrees to all terms and conditions set forth herein as of the date of commencement of such use of the LDS Service (the “Effective Date”).
WHEREAS, Company offers a proprietary clinical laboratory decisions support system known as “LDS®” which serves as an aid and resource for providers when selecting and ordering clinical laboratory tests. (“LDS Service”);
WHEREAS, Subscriber desires to make use of the LDS Service in furtherance of Subscriber’s medical practice;
NOW, THEREFORE, In consideration of the mutual covenants and agreements set forth in this Agreement, the Parties hereby agree as follows:
1. Subscription; Trial Period.
1.1 Subscription. Subscriber may purchase a subscription to the LDS Service (“Subscription”) by submitting a sign-up/enrollment form with Company. By purchasing a Subscription, Subscriber agrees to pay Company the amount shown on the sign up/enrollment form (the “Fees”) in accordance with the terms set forth on the sign up/enrollment form. All Subscriptions shall be governed by the terms and conditions set forth in this Agreement. Company objects to and will not be bound by any terms that are provided by Subscriber and are different from or inconsistent with the terms or conditions contained in this Agreement, including any purchase order submitted by Subscriber.
1.2 Subscription Period.
(a) Trial Subscription. If Subscriber has elected a “Trial Subscription,” then the trail period for the Trial subscription will be for either seven (7) or thirty (30) days (based on the applicable offer/promotion) from the Trial Subscription activation date (the “Trial Period”). Subscriber acknowledges and agrees that, at the end of the Trial Period, Subscriber’s access to the LDS Service will be terminated automatically, with or without notice, unless Subscriber elects to subscribe for the LDS Service on a paid subscription basis. Subscriber must contact MDB at least two (2) business days prior to the end of the Trial Period if Subscriber wishes to avoid any interruption in access to the LDS Service beyond the Trial Period. During the Trial Period, all terms and conditions of this Agreement shall be applicable (and any reference to “Subscription Period” shall be deemed to include the Trial Period) except for the Section 3.
(b) Paid Subscription. The period of Subscriber’s access to the LDS Service will be either one (1) year or one (1) month, as designated by Subscriber at the time of sign up/enrollment (“Initial Subscription Period”). he Initial Subscription Period automatically will renew for successive one (1) year or one (1) month terms, as applicable, unless Subscriber provides written notice to Company of non-renewal prior to the expiration of then-current Subscription Period (each, a “Renewal Subscription Period”). The Initial Subscription Period and each Renewal Subscription Period are collectively the “Subscription Period”. Subscriber may “opt out” of automatic renewals at any time by following directions offered on our website. If Subscriber opts out of automatic renewals then Subscriber’s Subscription shall be cancelled at the expiration of the then applicable Subscription Period if not renewed by Subscriber prior to such expiration. IF SUBSCRIBER DOES NOT OPT OUT OF AUTOMATIC RENEWALS, SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE SUBSCRIPTION AUTOMATICALLY WILL RENEW AT THE END OF EACH SUBSCRIPTION PERIOD, AND SUBSCRIBER’S PAYMENT METHOD AUTOMATICALLY WILL BE CHARGED ON A RECURRING BASIS UNTIL THE SUBSCRIPTION IS CANCELLED IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
(c) Cancellation. A Subscription may be canceled by Subscriber effective upon prior written notice during any Subscription Period by contacting Company as set forth in on Company’s platform. In the event of early termination/cancellation by Subscriber, Subscriber shall not be entitled to any refund of Fees.
2. LDS Service License and Restrictions
2.1 LDS Service License. Subject to the terms and conditions set forth in this Agreement, upon timely receipt of Subscriber’s payment of the Fee for a Subscription to the LDS Service, Company shall grant to Subscriber a revocable, limited, non-transferable, non-assignable, non-exclusive right to access the LDS Service in and for use in the United States only during the Subscription Period for Subscriber’s internal business purposes. The foregoing license shall terminate automatically upon cancellation of the Subscription. Company shall have no obligation to provide any services not specifically set forth herein.
2.2 Additional Users; Unauthorized Use. Access to the LDS Service is personal to Subscriber and may not be assigned to, transferred to, or shared with any other agent, representative, nurse, physician, assistant, or other individual. Subscriber will be provided with login credentials to access the LDS Service. Subscriber shall not share such credentials with any other individual. Subscriber shall protect Subscriber’s credentials and take full responsibility for Subscriber’s own, as well as any third party’s, use of the Subscriber’s account. Subscriber is solely responsible for any and all activities that occur under Subscriber’s accounts, except for any activities performed by Company. Subscriber agrees to notify Company immediately upon learning of any unauthorized use of its account or any other breach of security.
2.3 Optimization. The LDS Service does not include Subscriber’s connection to the Internet or any equipment or third party licenses necessary for Subscriber to use or access the LDS Service, which shall be Subscriber’s sole responsibility. Company reserves the right to manage bandwidth or route traffic across the Internet in a commercially optimal way, provided such actions do not compromise Company’s obligations under this Agreement.
2.4 Use Restrictions. Subscriber shall not, and shall not allow any third party to, directly or indirectly:
- share or disclose Subscriber’s login credentials to any third party;
- reverse engineer the LDS Service;
- access the LDS Service in order to build a competitive product or service, or copy any ideas, features, functions or graphics of the LDS Service;
- download materials or content from the LDS Services for use after the Subscription Period;
- use the LDS Service for any illegal activity;
- use the LDS Service to facilitate the sending of any content or material to any third party without first obtaining the prior express consent of that third party to receive such content or material from Subscriber;
- use the LDS Service to distribute any libelous, harassing, defamatory, violent, illegal, vulgar, offensive, slanderous, or otherwise objectionable or unlawful material of any kind;
- use the LDS Service to access blocked services in violation of any applicable laws and/or regulations;
- use the LDS Service to distribute, post, store or otherwise make available viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs;
- interfere with or disrupt the integrity or performance of the LDS Service or the data contained therein;
- attempt to gain unauthorized access to the LDS Service or its related systems or networks;
- remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the LDS Service; or
- conduct any benchmarking or comparative study or analysis involving the LDS Service for any reason or purpose.
2.5 Right to Suspend LDS Service. Company reserves the right to suspend or disable Subscriber’s access to the LDS Service at any time, with or without notice, including, without limitation if Company believes such suspension is necessary to prevent unauthorized use of the LDS Service or to prevent an ongoing violation of any applicable laws or regulations. In addition, if Subscriber fails to timely pay any Fees in accordance with the terms of this Agreement, Company may, without limitation to any of its other rights or remedies, suspend access to the LDS Service until Company receives all amounts due.
2.6 Feedback. Company shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the LDS Service or otherwise use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Subscriber relating to the LDS Service.
3. Fees and Payment
3.1 Fees. Subscriber will pay Company the fees specified during the Subscription sign-up/enrollment process (“Fees”). All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars.
3.2 Refunds. In the event of cancellation of a Subscription, Subscriber is not entitled to any refunds or credits for a partial Subscription Period or for any Subscription downgrades.
3.3 Payment Terms. Subscriber will pay all amounts due for the Initial Subscription Period at the time of purchase. As described in Section 1.2, Subscriptions automatically will renew until Subscriber cancels the Subscription. Fees for each Renewal Subscription Period will be charged automatically to Subscriber’s payment method. SUBSCRIBER REPRESENTS AND WARRANTS THAT SUBSCRIBER HAS THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION HEREUNDER. By submitting such information, Subscriber grants Company or any the third party collecting that information on Company’s behalf the right to provide such information to third parties for purposes of facilitating the completion of transactions initiated by Subscriber. Verification of information may be required prior to the acknowledgment or completion of any transaction.
3.4 Taxes. Other than net income taxes imposed on Company, Subscriber will bear all taxes, duties, and other governmental charges (“Taxes”) resulting from Subscriber’s purchase or use of the LDS Service.
4. Intellectual Property and Subscriber Data
4.1 Ownership. Company retains all rights, title, and interest in and to all technology, content, information, manuals, descriptions, and data associated with or made available through the LDS Service, in addition to the design, format, and processing of the LDS Service and any related databases, programs, protocols, displays, and manuals relating to the LDS Service (including any modification, addition, or improvement thereto). For the avoidance of doubt, Company’s name and logos are owned by Company and are protected as Company’s intellectual property.
4.3 Protection of Subscriber Data. Company shall use commercially reasonable measures to maintain the security and integrity of the Subscriber Data and to provide physical, technical, and organizational safeguards against accidental, unlawful or unauthorized access to or use of, destruction, transfer, disclosure or alteration of Subscriber Data. Subscriber has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Subscriber Data. Company takes no responsibility and assumes no liability for any Subscriber Data other than its express obligations set forth in this section. In connection herewith, Subscriber acknowledges and understands that the LDS Service is not subject to the regulations promulgated under the Health Insurance Portability and Accountability Act and that the Company is not required to comply with HIPPA in its operation of the LDS Service.
5. Representations and Warranties
5.1 By Subscriber. Subscriber represents and warrants that Subscriber:
(a) is at least 18 years of age;
(b) has the full legal power and authority to enter into this Agreement; and
(c) will comply with all applicable laws, rules, regulations, and industry or medical practice area self-regulatory or ethics guidelines related to Subscriber’s performance of this Agreement;
5.2 By Company. Company represents and warrants
(a) The LDS Service shall not contain any information that is materially inaccurate; provided that, although the scoring system for insurance reimbursement included within the functionality of the LDS Service has been developed by the Company with the most up-to-date information available, there can be no guarantee that in specific incidences, insurers will not deny or restrict reimbursement in conflict with the LDS Service scoring system.
5.3 Disclaimer of Warranties.
(a) The LDS Service is a resource tool to aid providers when selecting and ordering clinical laboratory tests. The LDS Services should not be considered, or used as a substitute for, medical advice, diagnosis or treatment. The LDS Service does not constitute the practice of any medical, nursing or other professional health care advice, diagnosis or treatment. All diagnostic decisions, including whether to order any diagnostic tests or which tests to order, remain the sole discretion of the provider, regardless of the use of the LDS Services and the Company shall have no liability arising out of a Subscriber’s use of the LDS Service.
(b) EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE LDS SERVICES IS PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, COMPANY EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. COMPANY ALSO MAKES NO WARRANTY REGARDING ACCESSIBILITY OR NON-INTERRUPTION OF USE OF THE SERVICE, AND MAKES NO WARRANTY THAT PRODUCTS WILL BE ERROR-FREE.
(c) Some states do not allow the exclusion of implied warranties, which means that some of the above limitations may not apply. IN THESE STATES, COMPANY’S IMPLIED WARRANTIES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Subscriber will indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, and contractors from and against any claim brought by a third party arising from or related to Subscriber’s violation or alleged violation of the terms of this Agreement, including, without limitation, Subscriber’s representations and warranties made hereunder. If Company is obligated to respond to a third-party subpoena, government or regulatory investigation, or other compulsory legal order or process related to Subscriber’s use of the LDS Service, Subscriber will reimburse Company for reasonable legal fees, as well as Company’s employees’ and contractors’ time and materials spent responding to such demand or request.
7. Limitation of Liability
7.1 Disclaimer of Indirect Damages. COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR EXEMPLARY, ENHANCED, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, REVENUE, BUSINESS, OR DATA; BUSINESS INTERRUPTION; OR LOSS OF GOODWILL OR REPUTATION, REGARDLESS OF PROVIDER IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING OR ANY LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
7.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF COMPANY ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY SUBSCRIBER TO PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
7.3 Exception to Limitations of Liability. Some states do not allow the limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply. IN THESE STATES, PROVIDER’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
8. Term and Termination
8.1 Term. This Agreement shall commence upon the Effective Date and shall remain in full force and effect until terminated by either Party as set forth herein (“Term”). Subscriptions shall renew automatically upon the expiration of each Subscription Period unless cancelled by Subscriber prior to such expiration by notice to the Company.
8.2 Termination by Company. Company may cancel Subscriber’s Subscription for any reason or no reason upon thirty (30) days’ prior written notice, which will have the effect of terminating this Agreement. In addition to the foregoing, Company may suspend Subscriber’s access to the LDS Service pursuant to Section 2.5.
8.3 Effect of Termination. Effective immediately upon termination or cancellation of this Agreement or any Subscription, Subscriber shall be prohibited from accessing or using the LDS Service.
9. Dispute Resolution.
The parties shall submit any dispute arising under this Agreement to binding arbitration in accordance with the then prevailing Commercial Arbitration Rules of the American Arbitration Association (the "AAA") in the City and County of Los Angeles, in the State of California. Subscriber hereby irrevocably waives any objection Subscriber may have, now or in the future that the venue for such arbitration is an inconvenient forum. The following procedures shall apply:
(a) Demand for arbitration shall be filed in writing with the other party to this Agreement, and with the AAA. In no event shall the demand for arbitration be made after the date when institution of legal or equitable proceedings based upon such claim, dispute or other matter in question will be barred by the applicable statute of limitations.
(b) The award rendered by the arbitrator or arbitrators shall be final and judgment may be entered upon it in accordance with applicable law and into any court having jurisdiction thereof.
(c) All filing fees and AAA costs associated with the arbitration itself shall be paid for by the party who files a Notice of Arbitration; provided, however, that all such expenses shall be recovered by the filing party in the event such filing party prevails. Any issues regarding who is the prevailing party shall be determined by the arbitration panel. The prevailing party shall also recover from the non-prevailing party all attorneys' fees and costs, including fees and costs for legal assistance and expert witnesses, and including all fees and costs relative to any challenge or appeal of the arbitration work, or confirmation by a court of law.
10.1 Amendments. Company may update or modify this Agreement (including referenced policies and other documents) from time to time by posting a revised version on medicaldatabase.com or by notification via the email address associated with Subscriber’s account. The modified terms will become effective upon posting or notification and continued use of the LDS Service, following the update, shall constitute acceptance of the updated Agreement. If Subscriber does not agree to the updated Agreement after it takes effect, Subscriber will no longer have the right to use the LDS Service. Except as otherwise described in this Section, any modification or amendment to this Agreement must be made in writing and signed by a duly authorized representative of each party (each in its discretion).
10.2 Force Majeure. Neither Party shall be liable for any default or delay in the performance of its obligations hereunder (except for failure to pay amounts due) if and to the extent that such default or delay arises out of causes beyond its reasonable control, including without limitation acts of God, acts of war, acts of terrorism, earthquakes, fires, cable cuts, power outages, catastrophic network element failures, floods, terrorism, riots, civil disorders, rebellions, strikes, lockouts and labor disputes.
10.3 Independent Contractors. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
10.4 Assignment. Subscriber may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of the Company. Any attempt by Subscriber to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect.
10.5 No Third-Party Beneficiaries. Except as specifically stated in this Agreement, this Agreement is not intended to be for the benefit of any third party, is not enforceable by any third party, and will not confer on any third party any remedy, claim, right of action or other right.
10.6 Governing Law. This Agreement shall be governed by and interpreted according to the laws of the State of California, without regard to principles of conflict of laws.
10.7 Waiver. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
10.8 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the LDS Service under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the LDS Service will immediately terminate.
10.10 Entire Agreement. This Agreement (and any policies referenced herein) is the final and complete expression of the agreement between the Parties regarding Subscriber’s use of the LDS Service. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of each Party.