Electronic Medical SolutionsTM is an Internet-based online information and communication service (the "Agreement"). BY ACCESSING OR USING ELECTRONIC MEDICAL SOLUTIONSTM, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE ELECTRONIC MEDICAL SOLUTIONSTM.
ELECTRONIC MEDICAL SOLUTIONS MAY MODIFY THIS AGREEMENT AT ANY TIME, AND SUCH MODIFICATION SHALL BE EFFECTIVE IMMEDIATELY UPON EITHER POSTING OF THE MODIFIED AGREEMENT OR NOTIFYING YOU. YOU AGREE TO REVIEW THIS AGREEMENT PERIODICALLY TO ENSURE THAT YOU ARE AWARE OF ANY MODIFICATIONS. YOUR CONTINUED ACCESS OR USE OF ELECTRONIC MEDICAL SOLUTIONSTM SHALL BE DEEMED YOUR CONCLUSIVE ACCEPTANCE OF THE MODIFIED AGREEMENT.
1. DISCLAIMER
The information contained in Electronic Medical SolutionsTM is presented for the purpose of educating consumers on wellness and disease management topics. Nothing contained in Electronic Medical SolutionsTM is intended to be instructional for medical diagnosis or treatment. The information should not be considered complete, nor should it be relied on to suggest a course of treatment for a particular individual. It should not be used in place of a visit, call, consultation or the advice of your physician or other qualified health care provider. Information obtained in Electronic Medical SolutionsTM is not exhaustive and does not cover all diseases, ailments, physical conditions or their treatment. Should you have any health care related questions, please call or see your physician or other qualified health care provider promptly. Always consult with your physician or other qualified health care provider before embarking on a new treatment, diet or fitness program. You should never disregard medical advice or delay in seeking it because of something you have read in Electronic Medical SolutionsTM.
The information contained in Electronic Medical SolutionsTM is compiled from a variety of sources ("Information Providers"). Neither Electronic Medical Solutions nor Information Providers directly or indirectly practice medicine or dispense medical services as part of Electronic Medical SolutionsTM.
Electronic Medical SolutionsTM SERVICES AND Electronic Medical SolutionsTM INFORMATION ACCESSED Through Electronic Medical SolutionsTM (the "SERVICES") ARE provided "AS IS" without warranty, express or implied. Electronic Medical Solutions hereby excludes all implied warranties of merchantability and fitness for a particular use or purpose with respect to the SERVICES. There are no warranties which extend beyond the description on the face OF THIS AGREEMENT. Electronic Medical Solutions and Information Providers make no warranty as to the reliability, accuracy, timeliness, usefulness, adequacy, completeness or suitability of the Services. Electronic Medical Solutions and Information Providers cannot and do not warrant against human and machine errors, omissions, delays, interruptions or losses, including loss of data. Electronic Medical Solutions and Information Providers cannot and do not guarantee or warrant that files available for downloading from this online site will be free of infection by viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. Electronic Medical Solutions and Information Providers do not warrant or guarantee that the functions or Services performed in Electronic Medical SolutionsTM will be uninterrupted or error-free or that defects in Electronic Medical SolutionsTM will be corrected. Users of Electronic Medical SolutionsTM are responsible for (1) implementing and maintaining adequate procedures and checkpoints to satisfy their particular requirements for accuracy of data input and output and (2) maintaining a means external to Electronic Medical SolutionsTM for the reconstruction of any lost data.
2. OTHER SITES
You are encouraged to use discretion while browsing the Internet on searches initiated at Electronic Medical SolutionsTM. Electronic Medical SolutionsTM links may lead unintentionally to sites containing information that some people may find inappropriate or offensive. It may also lead to sites which contain inaccurate information, false or misleading advertising, or information which violates copyright, libel or defamation laws. Electronic Medical Solutions and Information Providers make no representations concerning any effort to review all of the content of sites listed in its catalog (indeed, given the number of results from any browsing which starts with a Electronic Medical SolutionsTM link that would be practically impossible).
3. REVIEW OF POSTINGS & UPLOADS
Electronic Medical SolutionsTM does not and cannot review all communications and materials posted or uploaded to Electronic Medical SolutionsTM and is not responsible for the content of these communications and materials. However, Electronic Medical SolutionsTM reserves the right to block or remove communications or materials that it determines, in its sole discretion, to be (a) abusive, libelous, defamatory or obscene, (b) fraudulent, deceptive, or misleading, (c) in violation of a copyright or trademark, other intellectual property right of another or (d) offensive or otherwise unacceptable to Electronic Medical SolutionsTM. ANY MESSAGES, ADVICE, OPINIONS OR OTHER INFORMATION CONTAINED IN ANY DISCUSSION AREA SHOULD NOT BE CONSTRUED AS PROFESSIONAL ADVICE OR INSTRUCTION.
4. LIMITED LICENSE
By this Agreement, Electronic Medical Solutions grants, subject to the terms of this Agreement, only a limited, non-transferable and non-exclusive license to use the software and documentation necessary to access, explore and otherwise use Electronic Medical SolutionsTM in real time and to use the materials in Electronic Medical SolutionsTM in a manner consistent with paragraph 11 (Copyright) below.
5. USER'S AGREEMENT
You agree to: (a) maintain all equipment required for your access to and use of Electronic Medical SolutionsTM ; (b) maintain the security of your user identification, password and other confidential information relating to your Electronic Medical SolutionsTM account; and (c) be responsible for all charges resulting from use of your Electronic Medical SolutionsTM account, including unauthorized use prior to your notifying Electronic Medical Solutions of such use and taking steps to prevent its further occurrence by changing your password.
6. ON-LINE COMMUNICATIONS
You are responsible for your communications and your use of Electronic Medical SolutionsTM. You may not, under any circumstances, do any of the following: (a) use simultaneous, unattended or continuous connections to Electronic Medical SolutionsTM with one account; (b) post or transmit any message which is libelous or defamatory; (c) post or transmit any message, data, image or program which is indecent, obscene or pornographic; (d) post or transmit any message, data, image or program that would violate the property rights of others, including unauthorized copyrighted text, images or programs, trade secrets or other confidential proprietary information, and trademarks or service marks used in an infringing fashion; (e) use Electronic Medical SolutionsTM to threaten, harass, stalk, abuse, or otherwise violate the legal rights (including rights of privacy and publicity) of others; (f) intercept or attempt to intercept email or other private communications not intended for you; (g) send email to Users or other Internet users for any purpose other than personal communication, including to advertise or offer to unsolicited sell goods or services to other Users, use as a mass unsolicited distribution medium to communicate a generally unsolicited message, or use your email account as an address to which Users or other Internet users need to respond (except as otherwise expressly permitted by Electronic Medical Solutions); (h) send unsolicited email messages through third-party mail servers in order to relay your email or hide the origination of your email to others; (i) upload or download files that contain software or other material protected by intellectual property laws, rights of privacy or publicity, or any other applicable law unless you own or control the rights to such files or have received all necessary consents; (j) upload files that contain a virus or corrupted data; (k) delete any author attributions, legal notices or proprietary designations or labels in a file that you upload to a BBS or Electronic Medical SolutionsTM; (l) falsify the source or origin of software or other material contained in a file that you upload to a BBS or Electronic Medical SolutionsTM; (m) use Electronic Medical SolutionsTM in a manner that adversely affects the availability of its resources to other Users; (n) use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity that is not a subscriber to Electronic Medical SolutionsTM the User directory or any portion thereof other than for personal, noncommercial purposes (except as otherwise expressly permitted by Empower Health Corporation); (o) falsely purport to be an employee or agent of Electronic Medical SolutionsTM (p) cause repeated disruptive incidents; or (q) act, or fail to act, in your use of Electronic Medical SolutionsTM, in a manner that is contrary to applicable law or regulation. In addition, you may not post or transmit any message which is harmful, threatening, abusive or hateful. It is not the intent of Electronic Medical Solutions to discourage Users from taking controversial positions or expressing vigorously what may be unpopular views in Electronic Medical SolutionsTM, nonetheless, Electronic Medical Solutions reserves the right to take such action as it deems appropriate in cases where Electronic Medical SolutionsTM is used to disseminate statements which are deeply and widely offensive and/or harmful. Each time you upload a file on Electronic Medical SolutionsTM, you represent and warrant that you own or otherwise control the rights or have the necessary consents to do so, and you grant every other User the right to download and use such file. Your failure to observe any of the foregoing limitations or obligations may result in civil or criminal liability.
7. PRIVACY POLICY
Electronic Medical Solutions considers its users' privacy to be of the utmost importance. Please see our privacy statement for a detailed description of our information gathering and dissemination practices for the Electronic Medical Solutions Web site.
8. OPERATION
Electronic Medical Solutions reserves complete and sole discretion with respect to the operation of mysymptoms.net. Electronic Medical Solutions may, among other things: (a) delete email if it has not been accessed by a User within the time established by Electronic Medical Solutions's policies; (b) subject to Section 6, make available to third parties information relating to Electronic Medical SolutionsTM and Users; and (c) withdraw, suspend or discontinue any functionality or feature of Electronic Medical SolutionsTM.
9. USER REPRESENTATIONS
You represent and warrant that you are at least 18 years of age and that you possess the legal right and ability to enter into this Agreement and to use Electronic Medical SolutionsTM in accordance with this Agreement. You agree to be financially responsible for your use of Electronic Medical SolutionsTM (as well as for use of your account by others, including minors living with you) and to comply with your responsibilities and obligations as stated in this Agreement.
10. CONTENT
Statements made in websites, newsgroups, message boards, email, forums, conferences and chats reflect only the views of their authors. Forum managers, forum hosts, CPs, or Merchants appearing on Electronic Medical SolutionsTM are not authorized Electronic Medical Solutions spokespersons, and their views do not necessarily reflect those of Electronic Medical Solutions.
11. COPYRIGHT
The entire contents of Electronic Medical SolutionsTM are copyrighted as a collective work under the laws of United States and other copyright laws. Electronic Medical Solutions holds the copyright in the collective work. The collective work includes works which are the property of the Information Providers which are also protected by copyright and other intellectual property laws. You may display and, subject to any expressly stated restrictions or limitations relating to specific material, download portions of the material from the different areas of Electronic Medical SolutionsTM
solely for your own non-commercial use, unless otherwise permitted (e.g., in the case of electronic coupons, etc). Any redistribution retransmission or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner. You agree not to change or delete any proprietary notices from materials downloaded from Electronic Medical SolutionsTM.
12. LICENSES AND IDEA SUBMISSIONS
You agree to grant to Electronic Medical Solutions a non-exclusive, worldwide, royalty-free, perpetual license, with the right to sublicense, to reproduce, distribute, transmit, create derivative works of, publicly display and publicly perform any materials and other information (including, without limitation, ideas contained therein for new or improved products or services) you submit to public areas of Electronic Medical SolutionsTM (such as BBSs, forums and chat rooms) by all means and in any media now known or hereafter developed. You hereby waive your moral rights in any such materials and information, and you hereby warrant that any such materials and information are original with you, or that you have the right to submit such materials and information. You agree that you shall have no recourse against Electronic Medical Solutions for any alleged or actual infringement or misappropriation of any proprietary right in your communication to us.
13. INDEMNIFICATION
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS ELECTRONIC MEDICAL SOLUTIONS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INFORMATION PROVIDERS AND SUPPLIERS FROM AND AGAINST ALL LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEY'S FEES, RESULTING FROM ANY VIOLATION OF THIS AGREEMENT OR ANY ACTIVITY RELATED TO YOUR ACCOUNT (INCLUDING INFRINGEMENT OF THIRD PARTIES' WORLDWIDE INTELLECTUAL PROPERTY RIGHTS OR NEGLIGENT OR WRONGFUL CONDUCT) BY YOU OR ANY OTHER PERSON ACCESSING Electronic Medical SolutionsTM USING YOUR SERVICE ACCOUNT.
14. WAIVER, RELEASE AND LIMITATION OF LIABILITY
YOU AGREE THAT NEITHER ELECTRONIC MEDICAL SOLUTIONS, NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INFORMATION PROVIDERS OR SUPPLIERS SHALL HAVE ANY LIABILITY TO YOU UNDER ANY THEORY OF LIABILITY OR INDEMNITY IN CONNECTION WITH YOUR USE OF Electronic Medical SolutionsTM. YOU HEREBY RELEASE AND FOREVER WAIVE ANY AND ALL CLAIMS YOU MAY HAVE AGAINST ELECTRONIC MEDICAL SOLUTIONS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INFORMATION PROVIDERS OR SUPPLIERS (INCLUDING BUT NOT LIMITED TO CLAIMS BASED UPON THE NEGLIGENCE OF EMPOWER HEALTH CORPORATION, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INFORMATION PROVIDERS OR SUPPLIERS) FOR LOSSES OR DAMAGES YOU SUSTAIN IN CONNECTION WITH YOUR USE OF Electronic Medical SolutionsTM.
NOTWITHSTANDING THE FOREGOING PARAGRAPH, THE TOTAL LIABILITY OF ELECTRONIC MEDICAL SOLUTIONS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INFORMATION PROVIDERS AND SUPPLIERS, IF ANY, FOR LOSSES OR DAMAGES SHALL NOT EXCEED THE FEES PAID BY THE USER FOR THE PARTICULAR INFORMATION OR SERVICE PROVIDED. IN NO EVENT SHALL EMPOWER HEALTH CORPORATION, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INFORMATION PROVIDERS OR SUPPLIERS BE LIABLE TO YOU FOR ANY LOSSES OR DAMAGES OTHER THAN THE AMOUNT REFERRED TO ABOVE. ALL OTHER DAMAGES, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE ARISING FROM ANY USE OF THE INFORMATION OR OTHER PARTS OF mysymptoms.net TM ARE HEREBY EXCLUDED EVEN IF Electronic Medical Solutions ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INFORMATION PROVIDERS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15. THIRD PARTY RIGHTS
The provisions of paragraphs 14 (Indemnification) and 15 (Waiver, Release and Limitation of Liability) are for the benefit Electronic Medical Solutions and its officers, directors, employees, agents, licensors, suppliers, and Information Providers. Each of these individuals or entities shall have the right to assert and enforce those provisions directly against you on its own behalf.
16. TERM; TERMINATION
Either you or Electronic Medical Solutions may terminate your right to use Electronic Medical SolutionsTM at any time, with or without cause, upon notice. Electronic Medical Solutions also reserves the right to terminate or suspend your Electronic Medical SolutionsTM membership without prior notice, but Electronic Medical Solutions will confirm such termination or suspension by subsequent notice. The provisions of paragraphs 11 (Copyright), 12 (License, and Idea Submission), 13 (Indemnification), 14 (Waiver, Release and Limitation of Liability), 15 (Third Party Rights), and 17 (Miscellaneous) shall survive any termination of this Agreement.
17. MISCELLANEOUS
This Agreement shall be governed by and construed in accordance with the laws of the State of California. You agree that any legal action or proceeding between Electronic Medical Solutions and you for any purpose concerning this Agreement or the parties' obligations hereunder shall be brought exclusively in a court of competent jurisdiction sitting in the city of Newport Beach, California, United States.
18. NOTICE
Electronic Medical Solutions may deliver notice to you under this Agreement by means of electronic mail, a general notice on Electronic Medical SolutionsTM , or by written communication delivered by first class U. S. mail to your address on record in Electronic Medical Solutions's account information. You may give notice to Electronic Medical Solutions at any time via electronic mail to Electronic Medical SolutionsTM or by letter delivered by first class postage prepaid U. S. mail or overnight courier to the following address:
Electronic Medical Solutions
361 Hospital Road Suite 521
Newport Beach, CA 92663
Attn: Chief Executive Officer/President
Electronic Mail: feedback@mysymptoms.net
19. SEVERABILITY
The provisions of this Agreement are severable, and in the event any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof.
