MALECARE TERMS OF SERVICE

November 18, 2016

 

Welcome to the websites and mobile app (the “Site”) of Malecare, Inc. (“Malecare,” “we,” “our,” or “us”). It is important to us that when you use this Site you are fully aware of your respective legal rights and obligations. For that reason, we have created these Terms of Service (“Terms”) as the legally binding terms to govern your use of the Site. Please read these Terms carefully before using the Site, because these terms affect your legal rights and obligations.

 

 

  1. You Accept These Terms. If you do not agree with any of these Terms, including the Privacy Policy [LINK], and the Cookies and Tracking Technologies Policy, which are incorporated herein, please do not use this Site. By using this Site you will be deemed to have irrevocably agreed to these Terms. Some areas of this Site may be subject to additional terms and conditions, which you should read carefully before making any use of those areas. Such additional terms will not change or replace these Terms regarding the use of the Site unless otherwise expressly stated.
  2. Updates to Terms.Please note that these Terms may be revised and reissued, prospectively by posting updated terms on the Site. You consent and agree to receive notices of updates of these Terms through our posting of updated Terms on the Site. You should visit this page regularly to review the current terms. Your continued use of the Site will be deemed as irrevocable acceptance of any revisions.
  3. Legal Capacity. This is a general audience Site for adults. We will assume (and by using this Site you warrant that) you have legal capacity to enter into the agreement set out in these Terms (i.e., that you are of sufficient age and mental capacity and are otherwise entitled to be legally bound in contract).
  4. Your Use of Cancergraph. Cancergraph is not intended to diagnose, treat, cure, or prevent any disease. If you believe that you have symptoms of cancer, cancer or other medical conditions, consult your doctor to discuss treatment options. All information provided on Cancergraph or in connection with any communications supported by Cancergraph is intended to be for general informational purposes only. Cancergraph is provided to you free of charge. You may choose to make donations through the Site, but are not required to do so to use the Site. Any donations you make are not remuneration to Malecare for your use of the Site.

Cancergraph does not and will not review any photographs or any information you enter into journal entries using Cancergraph, and Cancergraph provides these features solely to allow you to keep track of your own symptoms and health conditions. Always seek the advice of a doctor or other qualified healthcare provider whenever you have a personal question about cancer symptoms, cancer or other medical conditions. DO NOT disregard the advice of a doctor or other qualified healthcare provider, or delay seeking medical advice or treatment, because of information provided to you on Cancergraph. If you engage in any clinical trial program you learn about through Cancergraph you agree that you do so at your own risk and are voluntarily participating in such clinical trial programs. Such clinical trial programs are not affiliated with or endorsed by Malecare. CANCERGRAPH IS NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL DIAGNOSIS OR TREATMENT; AND RELIANCE ON ANY INFORMATION PROVIDED BY CANCERGRAPH IS SOLELY AT YOUR OWN RISK. ALL INFORMATION PROVIDED ON CANCERGRAPH OR IN CONNECTION WITH ANY COMMUNICATIONS SUPPORTED BY CANCERGRAPH, IS INTENDED TO BE FOR GENERAL INFORMATIONAL PURPOSES ONLY, AND IS IN NO WAY INTENDED TO CREATE A PHYSICIAN – PATIENT RELATIONSHIP AS DEFINED BY STATE AND FEDERAL LAW. IF YOU BELIEVE YOU HAVE A MEDICAL EMERGENCY, CALL 911, OR YOUR LOCAL EMERGENCY NUMBER, OR YOUR DOCTOR OR OTHER QUALIFIED HEALTHCARE PROVIDER IMMEDIATELY. NEVER USE CANCERGRAPH OR ITS CONTENT OR SERVICES IN A POTENTIAL OR ACTUAL MEDICAL EMERGENCY.

  1. The Information You Give Us Must be Correct. To access some of the resources the Site has to offer, you may be asked to provide information about yourself. It is a condition of use of this Site that all the details you provide be correct, current, and complete. If we at Malecare believe the details are not correct, current, or complete, we have the right to refuse you access to the Site, or any of its resources, and to terminate or suspend your account.
  2. Online Privacy Notice. Your privacy is important to us. To better protect your privacy, we provide a notice explaining our online information practices and the choices you can make about the way your information is collected and used at this site. Click here [LINK TO PRIVACY POLICY] to show this notice, which forms part of these Terms. Click here [LINK] to view our Cookies and Tracking Technologies Policy.
  3. Disclaimer of Warranties. YOUR USE OF THIS SITE IS AT YOUR OWN RISK. THE SITE AND ALL THE MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICES AND OTHER CONTENT IN THE SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MALECARE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE USE AND NON-INFRINGEMENT. MALECARE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THIS SITE WILL BE AVAILABLE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVERS THAT MAKE THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MALECARE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIAL, INFORMATION, SOFTWARE, FACILITIES, SERVICES OR OTHER CONTENT ON THE SITE OR ANY WEB SITES LINKED TO THE SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. MALECARE MAKES NO WARRANTIES THAT YOUR USE OF THE MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICE OR OTHER CONTENT IN THE SITE OR ANY WEB SITE WILL NOT INFRINGE THE RIGHTS OF OTHERS AND MALECARE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICE OR OTHER CONTENT OF THE SITE OR ANY OTHER WEB SITE.

IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.

  1. Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW MALECARE DISCLAIMS ALL LIABILITY WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGES (DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR OTHERWISE) INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, RESULTING FROM ANY USE OF, OR INABILITY TO USE, THE SITE OR ANY OTHER WEB SITE, OR THE MATERIAL, INFORMATION, SOFTWARE, FACILITIES, SERVICES, OR OTHER CONTENT ON THE SITE OR ANY OTHER WEB SITE, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF ANY MEMBER OF MALECARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU (AND NOT ANY MEMBER OF MALECARE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION IN THE EVENT OF ANY SUCH LOSS OR DAMAGE.

IF YOU ACCESS THE SITE FROM THE UK OR EEA, NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM THE NEGLIGENCE OF EITHER PARTY OR THEIR SERVANTS, AGENTS OR EMPLOYEES.

  1. Binding Arbitration of All Disputes; No Class Relief.
    • S. Residents: To the fullest extend permissible by law, with the exception of disputes pertaining to Malecare’s intellectual property rights and certain statutory claims that, pursuant to law, are not arbitrable, any dispute of any kind between you and Malecare arising under these Terms shall be resolved through binding arbitration pursuant to the JAMS Streamlined Arbitration Rules and Procedures on an individual basis with no class relief. The arbitrator shall be a retired judge or justice of any California state or federal court with substantial experience in the internet industry and shall follow California substantive law in adjudicating the dispute, except that this Section 9(a) shall be construed as a “written agreement to arbitrate” pursuant to the Federal Arbitration Act (“FAA”).  You and we agree that we intend that this Section 9(a) satisfies the “writing” requirement of the FAA. The hearing shall be conducted in the county that encompasses the billing address you have provided to Malecare. For any claim in which you seek U.S. $10,000.00 or less, you shall have the choice as to whether the hearing is conducted in person, by telephone, or instead the arbitrator may decide the dispute without a hearing. For those claims that the arbitrator determines are not frivolous, Malecare shall pay the costs and fees of JAMS and the arbitrator. Malecare agrees that it will not seek reimbursement from you for its costs and fees incurred by it in the arbitration. AGREEMENT TO THESE TERMS CONSTITUTES AN AGREEMENT TO PURSUE YOUR CLAIM ON AN INDIVIDUAL BASIS AND A WAIVER OF THE ABILITY TO PURSUE YOUR CLAIM IN A CLASS ACTION.
    • Non-U.S. Residents: If any controversy, allegation, or claim (including any non-contractual claim) arises out of or relates to the Site or Terms of Service, then you and we agree to send a written notice to the other providing a reasonable description of the Section 9(b) Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 9(b). Your notice to us must be sent to us at info@malecare.com. For a period of sixty (60) days from the date of receipt of notice from the other party, Malecare and you will engage in a dialogue in order to attempt to resolve the Section 9(b) Dispute, though nothing will require either you or Malecare to resolve the Section 9(b) Dispute on terms either you or Malecare, in each of our sole discretion, are uncomfortable. Nothing in this Section will prevent a party from pursuing their claims in Court or another complaint process.
  2. Trademarks and Copyrights. This Site and materials incorporated by Malecare on this Site (“Material”) are protected by copyrights, patents, trade secrets or other proprietary rights (“Copyrights”). Some of the characters, logos or other images incorporated by Malecare on this Site are also protected as registered or unregistered trademarks, trade names and/or service marks owned by Malecare or others (“Trademarks”). Malecare respects the intellectual property rights of others and asks users of this Site to do the same.
  3. Your Use of Material. Your right to make use of this Site and any Material or other content appearing on it is subject to your compliance with these Terms. Modification or use of the Material or any other content on this Site for any purpose not permitted by these Terms may be a violation of the Copyrights and/or Trademarks protected by law and these Terms and is prohibited.

The Material and all other content on this Site may not be copied, reproduced, republished, uploaded, posted, transmitted, distributed or used in any way unless specifically authorized by Malecare. Any authorization to copy Material granted by Malecare in any part of this Site for any reason is restricted to making a single copy for non-commercial, personal, entertainment use, and is subject to your keeping intact all copyright and other proprietary notices. Using any Material on any other web site or networked computer environment is prohibited. Also, decompiling, reverse engineering, disassembling, or otherwise reducing the code used in any software on this Site into a readable form in order to examine the construction of such software and/or to copy or create other products based (in whole or in part) on such software, is prohibited.

 

  1. Uninvited Submissions. Malecare is interested in hearing from you regarding your questions or comments about our Site. However, Malecare does not accept or consider unsolicited submissions of any kind (e.g., ideas, treatments, concepts, or any other materials) in any format, by any means of transmission (including email). Any such submissions are either returned to the sender without being reviewed or deleted or discarded without being reviewed. Therefore, please do not send any unsolicited submissions to any member of Malecare.
  2. Invited Submissions. From time to time, areas on this Site may expressly request submissions of ideas, concepts, data, comments, suggestions, or other potential content from you (“Invited Submissions”). Where this is the case, please carefully read any specific rules or other terms and conditions which appear elsewhere on this Site to govern those submissions (“Additional Terms”), as they will affect your legal rights. If no Additional Terms govern those submissions, then these Terms will apply in full to any Invited Submissions you make. With the exception of any personal information you submit (which shall be maintained in accordance with our Privacy Policy), if you make any Invited Submissions (by email or otherwise) on, to or through the Site including but not limited to ideas, concepts, inventions, data, comments, suggestions, business information, you irrevocably:   (a) grant Malecare a royalty-free, perpetual, non-exclusive, unrestricted, worldwide license to all rights in the Invited Submission together with all consents necessary to enable Malecare to sublicense and exploit/disclose the Invited Submission by any means and in all media now known or hereafter devised, without payment or other reference to you or any other person; and (b) confirm and warrant that your Invited Submission is original, does not violate any personal rights (e.g., defamation, privacy, false light, or moral right) or any property rights (e.g., patent, copyright, trademark, or trade secret) of any person/entity. Do not submit anything to us if you do not want to give Malecare rights to it. If you want to keep any information, ideas, concepts or inventions private or proprietary, do not submit them to the Site. In any event, any material you send to us will not be treated as confidential. REGARDLESS OF ANY INDUSTRY CUSTOM OR PRACTICE, WE WILL NOT PAY YOU FOR THE USE OF ANY CONTENT THAT YOU SUBMIT TO THE SITE.
  3. Responsible Use of Site. Please act responsibly when using this Site. You may only use this Site and its contents for lawful purposes and in accordance with applicable law and you are prohibited from storing, distributing or transmitting any unlawful material through this Site. You may not collect or store personal information regarding other users. You recognize that storing, distributing, or transmitting unlawful material could expose you to criminal and/or civil liability.
  4. Indemnity. You agree to indemnify and hold harmless Malecare and its officers, directors, employees, agents, distributors, and affiliates from and against any and all claims, demands, liabilities, costs, or expenses, including reasonable attorney’s fees, resulting from your breach of these Terms, including any of the foregoing provisions, representations or warranties, and/or from your placement or transmission of any content onto Malecare’s servers, and/or from any and all use of your account.
  5. Security. Any usernames and passwords used for this Site are for individual use only. You shall be responsible for the security of your username and password. Malecare shall be entitled to monitor your username and password and, at its discretion, require you to change it. If you use a username and password that Malecare considers insecure, Malecare will be entitled to require this to be changed and/or terminate your account.
  6. Violation of Security Systems. You are prohibited from using any services or facilities provided in connection with this Site to compromise security or tamper with system resources and/or accounts. The use or distribution of tools designed for compromising security (e.g., password guessing programs, cracking tools, or network probing tools) is strictly prohibited. If you become involved in any violation of system security, Malecare reserves the right to release your details to system administrators at other sites in order to assist them in resolving security incidents.
  7. Investigations. Malecare reserves the right to investigate suspected violations of these Terms, to the extent permitted under applicable law, including without limitation any violation arising from any submission or e-mails you make or send. Malecare has put in place a Code of Conduct which describes our monitoring policy. To obtain a copy of our Code of Conduct, please contact us as indicated in section 24 below. Malecare may seek to gather information from the user who is suspected of violating these Terms, and from any other user. Malecare may suspend any users whose conduct is under investigation and may remove such material from its servers as it deems appropriate and without notice. If Malecare believes, in its sole discretion, that a violation of these Terms has occurred, it may warn users, suspend users and passwords, terminate accounts or take other corrective action it deems appropriate. Malecare will fully cooperate with any law enforcement authorities or court order requesting or directing Malecare to disclose the identity of anyone sending us emails, or otherwise making available any materials that are believed to violate these Terms. BY ACCEPTING THIS AGREEMENT YOU WAIVE AND HOLD HARMLESS ALL MEMBERS OF MALECARE FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY MEMBER OF MALECARE DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER A MEMBER OF MALECARE OR LAW ENFORCEMENT AUTHORITIES.
  8. Service. In order to use the website, you must obtain access to the World Wide Web and pay any service fee associated with that access. You will need to provide all equipment necessary to connect to the Site on the World Wide Web (including a computer, modem, mobile device, tablet and/or other access devices).
  9. Reservation of Rights. Malecare reserves the right to modify or discontinue, temporarily or permanently, all or any part of this Site and/or any software, facilities and services on this Site, with or without notice, and/or to establish general guidelines and limitations on their use.
  10. Local Regulations. Malecare makes no representation that Materials or other content on the Site are appropriate or available for use in any particular location. If you choose to access the Site, you do so on your own initiative and at your own risk.

You are responsible for complying with local laws, if and to the extent local laws are applicable. You specifically agree to comply with all applicable laws concerning the transmission of technical data exported from the United States or the country in which you reside.

  1. Third-Party Sites. This Site may link you to other sites on the Internet. You acknowledge that (whether or not such sites are affiliated in any way with Malecare) Malecare is not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such sites. The inclusion of such a link does not imply endorsement of any site by Malecare or any association with its operators.

Malecare cannot ensure that you will be satisfied with any products or services that you purchase from any third-party site that links to or from Malecare. Malecare does not endorse any of the products or services, nor has Malecare taken any steps to confirm the accuracy or reliability of any of the information contained on such third-party sites. Malecare does not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party, and you irrevocably waive any claim against us with respect to such sites. We strongly encourage you to make whatever investigation you feel necessary or appropriate before proceeding with any online transaction with any of these third parties.

  1. Choice of Law. To the extent permitted by applicable law, and with the exception of Section 9(a) which will be construed in accordance with the FAA, these Terms shall be governed by, construed and enforced in accordance with the laws of the State of New York.
  2. How To Contact Us. This Site is controlled and operated by Malecare located at Third Floor, 85 Delancey Street, New York NY 10002. Please forward any comments or complaints about the Site to info@malecare.org. Please forward any questions regarding privacy and other legal matters to info@malecare.org. Malecare can also be reached at 212-673-4920.
  3. General. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions. This is the entire agreement between you and Malecare relating to the matters contained here and the Site.