Effective Date: _22nd February_________________________, 2016
The LymphCare Web Site (the "Site") is an online information service where you can obtain information about the medical condition Lymphedema. Registered users can communicate with therapists and other registered users, and can measure, record and document Lymphedema treatment, condition and status. The Site is provided by LymphCare GmbH ("LymphCare"), and is available subject to your compliance with the terms and conditions set forth below.
The Site DOES NOT OFFER MEDICAL ADVICE OR MEDICAL SERVICES. If this is an emergency, call 911 or visit a hospital emergency room immediately. You must be at least 13 years of age to use the Site.
ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “ARBITRATION AND CLASS ACTION WAIVER” SECTION BELOW, AND IF YOU DO NOT OPT-OUT AS SET FORTH IN THAT SAME SECTION, YOU AGREE THAT DISPUTES BETWEEN YOU AND LYMPHCARE WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE YOUR RIGHT TO BRING OR RESOLVE ANY DISPUTE AS, OR PARTICIPATE IN, A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR ARBITRATION.
1. LYMPHCARE AND THE SITE DO NOT PROVIDE MEDICAL ADVICE
The Site includes all materials that comprise or are otherwise a part of the Site (including past, present and future versions of the Site), including, without limitation: graphics; layout; text; instructions; images; graphs; charts; trademarks, logos, service marks; software (including HTML-based programs); audio; animations; videos; designs; technology; applications; artwork; information; data; reports; designs; compilations; advertising copy; domain names; any and all copyrightable material (including source and object code); the "look and feel" of the Site; the compilation, assembly and arrangement of the materials of the Site; and all other materials related to the Site (collectively, "Materials").
The Materials may include general health information or medical-related information, which is provided for general information and educational purposes only. The Materials are not intended to be a substitute for professional medical advice, diagnosis, or treatment. LymphCare does not directly or indirectly practice medicine or any other licensed profession, and it does not interfere with the practice of medicine or any other licensed profession by healthcare providers, each of whom is responsible for his or her services and compliance with the requirements applicable to his or her profession and license. No representation or warranty is made that any particular drug or treatment is safe, appropriate or effective, and LymphCare does not endorse or advocate any treatment method. Your use of the Site and these Terms and any Additional Terms do not establish any medical professional/patient relationship with LymphCare. Neither LymphCare nor any third parties who promote LymphCare’s services shall be liable for any treatment or professional advice you obtain from a healthcare provider via the Site. You should always seek the advice of your physician, therapist, or other qualified health professional with any questions regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on the Site!
LymphCare does not recommend or endorse any specific tests, physicians, procedures, opinions, or other information that may be mentioned on the Site. Reliance on any information provided by LymphCare, LymphCare employees, others appearing on the Site at the invitation of LymphCare, or other visitors to the Site is solely at your own risk.
The Site may contain health- or medical-related Materials that are sexually explicit. If you find these Materials offensive, you may not want to use our Site.
YOU AGREE THAT LYMPHCARE, ITS AFFILIATES, LICENSORS, SUPPLIERS AND BUSINESS PARTNERS ARE NOT RESPONSIBLE FOR THE RESULTS OF YOUR DECISIONS RESULTING FROM THE USE OF THE SITE OR THE INFORMATION CONTAINED IN THE SITE. YOUR USE OF THE SITE IS AT YOUR SOLE RISK. LYMPHCARE PROVIDES THE SITE “AS IS” AND EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES.
2. HEALTHCARE PROVIDER LISTINGS
The Site includes listings of healthcare professionals that have elected to participate in the Site. The listings are not comprehensive and you should evaluate any healthcare provider listed on the Site with the same care as you would any other healthcare provider. Healthcare providers are solely responsible for the appropriateness and quality of any medical advice and medical services they provide. The listings rely on information submitted by the healthcare providers and so the information may not be timely or accurate. Healthcare providers are solely responsible for obtaining and maintaining any and all Federal, State and local licenses and certifications which may be required to participate in the Site, and for providing accurate information and updating their information to reflect changes to their licensure and/or certification status. Healthcare professionals are responsible for maintaining their own schedules and LymphCare cannot guarantee that any healthcare professional will be available or will be able to interact with you on the Site.
3. OWNERSHIP OF SITE MATERIALS
The Materials are owned by or licensed to LymphCare and are protected from unauthorized use, copying and dissemination by copyright, trademark, patent, and other laws, rules, regulations and treaties. Except as expressly set forth in these Terms or expressly granted to you in writing by LymphCare, no rights in the Materials (whether by implication, estoppel or otherwise) are granted to you. You acknowledge that you do not acquire any ownership rights in the Materials by using the Site. You may only use the Materials as expressly set forth in these Terms. UNAUTHORIZED USE, COPYING, REPRODUCTION, STORING, MODIFICATION, REPUBLISHING, UPLOADING, DOWNLOADING, POSTING, TRANSMITTING, DISTRIBUTING, DUPLICATING, REMOVAL OR ALTERATION OF ADVERTISING, OR ANY OTHER MISUSE OF ANY OF THE MATERIALS IS STRICTLY PROHIBITED.
Subject to your strict compliance with these Terms and any Additional Terms, LymphCare grants you a limited, personal, non-exclusive, non-commercial, revocable, non-assignable and non-transferable license to access and view the Materials (excluding source and object code, other than as made available to access and use via standard web browsers to enable display on your device). When you access or view the Materials, you must: (a) keep intact all copyright and other proprietary notices; (b) make no modifications to the Materials; and (c) not copy or adapt any object code associated with the Site, reverse engineer, modify or attempt to discover any source code associated with the Site, nor allow or assist any third party (whether or not for your benefit) to do so. If you publish a paper based in whole or in part on the Site, Materials or research conducted on or through the Site, you agree to cite the Site, including the URL to the Site, in your publication.
You agree to abide by any and all copyright notices, information, or restrictions contained in any part of the Site. Any and all rights to use the Site that are not expressly granted to you under these Terms are reserved for LymphCare or its licensors. Nothing contained in these Terms will affect, impair, or limit in any way LymphCare's rights to exploit fully any or all of the Materials. Unauthorized use of Materials may be a violation of federal and state laws and could result in civil and criminal liability.
4. PROHIBITED CONDUCT
You agree that you will not, including without limitation by use of any robot, scraper or other data mining technology or process, frame, mask, extract data or other materials from, or copy or distribute, the Materials (except as may be a result of standard search engine or Internet browser usage). Except as expressly provided in these Terms, you may not copy, reproduce, republish, modify, create derivative works of, upload, download, perform, display, post, transmit, distribute or otherwise use, the Materials in any way, without the prior written permission of a duly authorized LymphCare employee. You may not violate any instructions or restrictions communicated to you by LymphCare on or through the Site.
You agree not to violate or interfere with the security of the Site, attempt to gain unauthorized access to the Site or data, materials, information, computer systems or networks connected to any server associated with the Site, through hacking, password mining or any other means, or otherwise bypass or circumvent any measure employed to limit or prevent access to the Site or Materials. You also agree not to take or attempt any action that, in the sole discretion of LymphCare, imposes or may impose an unreasonable or disproportionately large load or burden on the Site or LymphCare’s infrastructure. You agree not to use the Site to determine the identity of any specific individuals contained in any video. You further agree not to use the Site for any unlawful purpose.
5. MEMBERSHIP & REGISTRATION
LymphCare reserves the right to review your registration before permitting access, to deny access to the Site, and to terminate your access to the Site, for any reason or no reason, in its sole discretion without notice and without liability. You also agree to comply with all rules, laws and regulations that are applicable to your use of the Site, including, without limitation, those governing your transmission or use of any software or data.
6. USER CONTENT; LICENSE TO LYMPHCARE
The Site may provide you and other users the opportunity to submit, display or post to the Site a variety of information, content or media, including images and text (collectively, "User Content"). User Content may be supplied by site users and/or healthcare provider users. LymphCare does not control the User Content made available via the Site and therefore does not guarantee the accuracy, integrity or quality of any User Content.
(1) Responsibility for User Content. You understand that you are solely responsible for your User Content, however submitted. You agree that your User Content complies with the User Submission Policy set forth below and does not contain any content that: libels, defames, invades or violates the privacy of another person, or is indecent, obscene, pornographic, abusive, or threatening (in LymphCare’s sole discretion); infringes any intellectual property right of any entity or person, including, but not limited to, violating copyrights or trademarks or any right of publicity, or otherwise violates any law. LymphCare assumes no, and you assume all, responsibility or liability arising from or related to any User Content submitted to or posted to the Site, including responsibility or liability for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger, or inaccuracy contained in any information you submit to or post to the Site.
LymphCare has no obligation to monitor the Site or any User Content made available via the Site. However, you acknowledge and agree that LymphCare has the right to monitor the Site and User Content you provide and the right (but not the obligation) to delete, edit, move, or disable any such User Content in whole or in part subject to LymphCare's sole discretion. LymphCare reserves the right to suspend or terminate your access to the Site at any time. UNDER NO CIRCUMSTANCES WILL LYMPHCARE BE LIABLE IN ANY WAY FOR ANY USER CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN YOUR USER CONTENT, ANY LOSS OF YOUR USER CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USER CONTENT.
(2) License to LymphCare. Your User Content, whether submitted via the Site or otherwise to LymphCare, will be treated as non-confidential and non-proprietary and LymphCare will not be liable for any use or disclosure to anyone, including but not limited to claimed intellectual property owners. You remain the owner of your User Content, but, when you make a submission, you automatically grant to LymphCare a worldwide, non-exclusive, assignable, royalty-free, perpetual right and license to use, modify, adapt, copy, display, disclose and create derivative works based upon your User Content (including without limitation any and all intellectual property and proprietary rights in such User Content) for the purpose of providing and supporting the services, functionality and features of the Site, and administering, improving or enhancing the Site, and for LymphCare’s internal purposes. You acknowledge that LymphCare may be working on or developing material similar or the same in nature to your User Content and that LymphCare may have received similar or the same intellectual property rights from another party. LymphCare owes you no obligation with respect to your User Content unless you and LymphCare enter a written agreement to that effect. If your User Content is subject to protection under intellectual property rights laws, you are responsible for seeking and securing any such protection that may be available to you. Any discussions or negotiations between you and LymphCare regarding your User Content do not constitute LymphCare's recognition of the novelty or originality of your User Content.
You agree and understand that the LymphCare Parties are not obligated to post or use your User Content submitted through the Site or otherwise, and may alternatively choose to discard or remove your User Content without any liability whatsoever. You agree that LymphCare has no obligation to monitor or enforce your intellectual property rights to your User Content.
(3) User Content Requirements. When you contribute, upload or otherwise provide your User Content to the Site, you agree to comply with the following requirements:
i. User Content must be your own or in the public domain. All User Content must be created by you and you must have all rights in the User Content; or, all persons who contributed in any way or have any rights to your User Content, or otherwise appear in the User Content, must have given you permission to upload and distribute the User Content on the Site and elsewhere. You may also upload content that is in the public domain. Upon LymphCare's request, you will furnish LymphCare any documentation, substantiation or releases necessary to verify your compliance with these Terms.
ii. No third party materials. Your User Content should not contain any visible logos, phrases or trademarks or other third party materials. Do not use any User Content that belongs to other people without their permission – this means you absolutely may not include any content owned or created by someone else unless you have secured the right to do so, including no uploading or copying of content you found elsewhere on the Internet without proper permission.
iii. No illegal or objectionable content. Your User Content must not violate any law. Your User Content may not promote any illegal activity and your User Content may not promote violence nor describe how to perform a violent act. Your User Content may not threaten, abuse, or harm others. Your User Content may not include any negative comments that are connected to race, national origin, gender, sexual preference or physical handicap or that are defamatory, slanderous, indecent, obscene, pornographic or sexually explicit.
iv. No third party personal information. Your User Content may not reveal another person's address, phone number, e-mail address, credit card number or any information that may be used to track, contact, or impersonate that individual, or that is personal in nature.
v. No User Content for commercial purposes. Your User Content may not advertise or promote a product or service. You may not use your User Content to raise money for anyone or for a pyramid or other multi-tiered marketing scheme.
vi. Do not damage the Site or anyone's computers. User Content may not contain viruses, Trojan horses, spyware or any other technologies that could impact the operation of the Site or any computer system.
If you do upload or post User Content that violates these Terms, LymphCare reserves the right to take any action that LymphCare deems appropriate, which may include, in LymphCare’s sole discretion, reporting you to law enforcement. In cases where you feel threatened or believe someone else is in danger, you should contact your local law enforcement agency immediately.
7. ACCESS TO SITE AND ELECTRONIC COMMUNICATIONS
You are responsible for obtaining access to the Site, and that access may involve third-party fees (such as Internet service provider or airtime charges). In addition, you must provide and are responsible for all equipment necessary to access the Site. You may not bypass any measures that have been implemented to prevent or restrict access to this Site. Any unauthorized access to the Site by you (including any such access or use that involves in any way an account you may establish on the Site or any device you may use to access the Site) shall terminate the permission or license granted to you by LymphCare.
When you use the Site or send emails to LymphCare, you are communicating with LymphCare electronically. You consent to receive electronically any communications related to your use of this Site. LymphCare will communicate with you by email or by posting notices on this Site. You agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing. All notices from LymphCare intended for receipt by a customer shall be deemed delivered and effective when sent to the email address you provide on any of the LymphCare Sites.
8. COPYRIGHTS AND OTHER INTELLECTUAL PROPERTY AND RELATED COMPLAINTS
You may not use the Site for any purpose or in any manner that infringes the rights of any third party. LymphCare encourages you to report any content on the Site that you believe infringes your rights. Only the intellectual property rights owner or person authorized to act on behalf of the owner can report potentially infringing content. If you have a good faith belief that content on the Site infringes your copyright, trademark, or other intellectual property rights, please follow the procedures set forth below.
In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”), LymphCare has a designated agent for receiving notices of copyright infringement and LymphCare follows the notice and take down procedures of the DMCA. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide LymphCare's copyright agent (copyright agent contact information is set forth below) the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. § 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit LymphCare to locate the material; (d) information reasonably sufficient to permit LymphCare to contact the complaining party, such as an address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted; (e) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe that any content on the Site contains content that violates your rights other than copyrights, please provide LymphCare at least the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit LymphCare to locate the material; (c) an explanation what rights you own/have and why you believe the content infringes your rights sufficient for LymphCare to evaluate your complaint; and (d) accurate contact information for you.
Please send (a) your notice of claims of copyright infringement on or regarding the Site, or (b) a complaint regarding alleged violation of rights other than copyrights, to LymphCare’s copyright agent, who can be reached as follows:
Service Provider(s): LymphCare GmbH
Name of Agent Designated to Receive
Notification of Claimed Infringement: BSN Copyright Agent
Full Address of Designated Agent to
Which Notification Should be Sent: BSN medical IPM C.V., Randstad 22-13, 1316 BN Almere, The Netherlands
Telephone Number of Designated Agent: +31 36 538 95 00
Facsimile Number of Designated Agent: +31 36 538 95 10
Email Address of Designated Agent: firstname.lastname@example.org
LymphCare has a policy of terminating the accounts of users who (in LymphCare’s reasonable discretion) are repeat infringers.
It is often difficult to determine if your intellectual property rights have been violated or if the DMCA requirements have been met. LymphCare may request additional information before LymphCare removes any infringing material. If a dispute develops as to the correct owner of the rights in question, LymphCare reserves the right to remove your content along with that of the alleged infringer pending resolution of the matter.
LymphCare will provide you with notice if your submission has been removed based on a third party complaint of alleged infringement of the third party’s intellectual property rights.
9. USER INTERACTIONS AND DISPUTES
You are solely responsible for your interaction with other users of the Site, whether online or offline. LymphCare is not responsible or liable for the conduct of any user. LymphCare reserves the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others, when you submit or post any personal or other information, and in all other online activities.
10. YOUR INFORMATION MUST BE ACCURATE
You may not use a false email address or other identifying information, impersonate any person or entity or otherwise mislead as to the origin of any content. Some features that may be available on this Site require registration. By registering, you agree to provide true, accurate, current and complete information about yourself.
11. REPORTING ILLEGAL OR INAPPROPRIATE CONTENT
If you observe any inappropriate or illegal content (including without limitation such content displayed in images, including those made available by third parties) on the Site, you agree to report that content to LymphCare using the contact information made available on the Site. Inappropriate or illegal content includes, but is not limited to, images depicting (i) an area where a person is reasonably likely to disrobe (including restrooms, baths, showers, and dressing rooms), (ii) child pornography, (iii) felonious acts or other crimes, and (iv) copyrighted content that the person posting the image is not authorized to display. In addition, you may be required to report to relevant police authorities illegal activities you observe on the Site. You, and not LymphCare, are solely responsible for compliance with any laws that require the reporting of illegal activities to police authorities, even if you report that illegal activity to LymphCare.
THE SITE (INCLUDING, WITHOUT LIMITATION, ALL MATERIALS, INFORMATION, LINKS, PRODUCTS, SERVICES, AND OTHER CONTENT CONTAINED ON AND/OR OBTAINED THROUGH THE SITE) ARE PROVIDED "AS IS," "WITH ALL FAULTS," AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE LYMPHCARE PARTIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FITNESS FOR A PARTICULAR PURPOSE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
WITHOUT LIMITING THE FOREGOING, THE LYMPHCARE PARTIES DO NOT WARRANT OR GUARANTEE THAT YOUR USE OF THE SITE WILL BE TIMELY, UNINTERRUPTED, ERROR-FREE, OR SECURE, THAT DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE SITE (OR THE SERVER(S) THAT MAKES THE SITE AVAILABLE) IS FREE OF VIRUSES, MALWARE OR OTHER HARMFUL COMPONENTS. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND YOUR RELIANCE THEREON.
FURTHER, THE LYMPHCARE PARTIES DO NOT WARRANT OR GUARANTEE THAT YOUR ACTIVITIES, OR USE OF THE SITE, ARE LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, THE LYMPHCARE PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES.
YOU UNDERSTAND THAT BY USING ANY OF THE FEATURES OF THE SITE, YOU ACT AT YOUR OWN RISK, AND YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN THE JURISDICTION WHERE YOU ACCESS OR USE THE SITE.
THE LYMPHCARE PARTIES SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, DEATH, MEDICAL CONDITION, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR NEGLIGENCE, STRICT LIABILITY, OR OTHER TORTS, MEDICAL MALPRACTICE, LOST BUSINESS, LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) BASED UPON OR RESULTING FROM ANY OPINION, ADVICE, INFORMATION, STATEMENT OR OTHER SUBMISSIONS MADE OR DISPLAYED ON, OR USE OF, THE SITE (INCLUDING, WITHOUT LIMITATION, ANY USER OF THE SITE).
PLEASE REMEMBER THAT IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY AND RELIABILITY OF ANY OPINION, ADVICE, RECOMMENDATION, USER CONTENT, INFORMATION OR STATEMENT AVAILABLE ON THE SITE. A POSSIBILITY EXISTS THAT THE SITE COULD INCLUDE INACCURACIES OR ERRORS. ADDITIONALLY, A POSSIBILITY EXISTS THAT UNAUTHORIZED ALTERATIONS COULD BE MADE TO THE SITE BY THIRD PARTIES. ALTHOUGH WE ATTEMPT TO ENSURE THE INTEGRITY OF THE SITE, THE LYMPHCARE PARTIES MAKE NO GUARANTEES AS TO COMPLETENESS OR CORRECTNESS OF THE SITE.
13. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, NONE OF THE LYMPHCARE PARTIES ARE RESPONSIBLE OR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, ECONOMIC, EXEMPLARY, PUNITIVE OR OTHER DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY, DIRECTLY OR INDIRECTLY, TO: (A) THE SITE (INCLUDING THE SITE AND ALL MATERIALS, INFORMATION, LINKS, PRODUCTS, SERVICES, USER CONTENT, AND OTHER CONTENT CONTAINED ON AND/OR OBTAINED THROUGH THE SITE); (B) YOUR USE OF, OR INABILITY TO USE, OR THE PERFORMANCE OF, THE SITE; (C) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE LYMPHCARE PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE SITE; (D) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (E) ANY ERRORS OR OMISSIONS IN TECHNICAL OPERATION OF THE SITE; OR (F) ANY DAMAGE TO ANY USER'S DEVICE, HARDWARE, DEVICE SOFTWARE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE LYMPHCARE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR DESTRUCTION OF THE SITE). WITHOUT LIMITING THE FOREGOING, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE LYMPHCARE PARTIES WILL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OF THE SITE. IN NO EVENT WILL THE LYMPHCARE PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
YOUR SOLE REMEDY FOR DISSATISFACTION WITH ANY PORTION OF THE SITE IS TO STOP USING THE SITE, AND THE SOLE AND EXCLUSIVE MAXIMUM AGGREGATE LIABILITY TO THE LYMPHCARE PARTIES FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL BE THE GREATER OF ONE DOLLAR ($1) OR THE TOTAL AMOUNT PAID BY YOU, IF ANY, TO ACCESS THE SITE.
LYMPHCARE SHALL BE EXCUSED FROM PERFORMANCE UNDER THESE TERMS TO THE EXTENT LYMPHCARE IS PREVENTED FROM OR DELAYED FROM PERFORMING, IN WHOLE OR IN PART, AS A RESULT OF AN EVENT OR SERIES OF EVENTS CAUSED BY OR RESULTING FROM (1) WEATHER CONDITIONS OR OTHER ELEMENTS OF NATURE OR ACTS OF GOD, (2) ACTS OF WAR, TERRORISM, INSURRECTION, RIOTS, CIVIL DISORDERS, OR REBELLION, (3) QUARANTINES OR EMBARGOES, (4) LABOR STRIKES, OR (5) OTHER CAUSES BEYOND THE REASONABLE CONTROL OF LYMPHCARE.
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF ANY LYMPHCARE PARTY’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF THE SITE OR ANY OF LYMPHCARE PARTIES’ WEB SITES, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE LYMPHCARE PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF THE SITE OR ANY OTHER LYMPHCARE PARTIES’ WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE LYMPHCARE PARTIES.
BY ACCESSING THE SITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
15. GOVERNING LAW
The validity and interpretation of these Terms, the rights and obligations hereunder, and all causes of action (whether sounding in contract, tort, or otherwise) arising out of or related to these Terms, the termination of these Terms, or the use of the Site, are to be governed by, and construed in accordance with, the substantive laws (as distinguished from the choice of law rules) of the State of North Carolina and the United States of America applicable to contracts made and performed entirely in North Carolina.
16. WAIVERS OF JURY TRIAL
Both you and LymphCare hereby expressly waive trial by jury. Both you and LymphCare waive the right to bring or resolve any dispute as a class, consolidated, representative, collective, or private attorney general action. Both you and LymphCare waive the right to participate in a class, consolidated, representative, collective, or private attorney general action brought by anyone else.
17. ARBITRATION AND CLASS ACTION WAIVER
Unless you opt-out specifically as set forth in this Section, you agree that all disputes between you and LymphCare (whether or not such dispute involves a third party) with regard to these Terms or your use of the Site will be resolved by binding, individual arbitration, except for disputes relating to the infringement of your or LymphCare’s intellectual property (such as trademarks, trade dress, copyright and patents) or where LymphCare is seeking a preliminary injunction (“Excluded Disputes”). You agree that arbitration will be conducted by Judicial Arbitration and Mediation Services, Inc. (“JAMS”) in accordance with its Comprehensive Arbitration Rules and Procedures then in effect. Notwithstanding any provision of the JAMS Comprehensive Arbitration Rules and Procedures then in effect, the arbitrators shall not have the authority or jurisdiction to hear the arbitration as a class, consolidated, representative, collective, or private attorney general action or to consolidate, join, or otherwise combine the claims of different persons into one proceeding.
This dispute resolution provision will be governed by the Federal Arbitration Act and, where consistent, North Carolina law. The arbitration will be conducted in Washington, D.C. in the English language by three arbitrators appointed in accordance with the JAMS Comprehensive Arbitration Rules and Procedures then in effect. Judgment on the award rendered by the arbitrators may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrators will not have authority to award punitive or exemplary damages.
Opt-Out of Arbitration . If you do not wish to have any dispute between you and LymphCare arbitrated, you must notify LymphCare in writing within thirty (30) days of the date that you first became subject to this arbitration clause. You may provide such notice by postal mail at the following address: LymphCare - Arbitration Opt Out, Quickbornstrasse 24, c/o BSN medical Germany Holding GmbH, 20253 Hamburg, Germany. Your opt-out notification to LymphCare must include (1) your name, (2) your postal address, (3) your e-mail address and user ID (if applicable), and (4) a clear statement that you do not wish to resolve disputes with LymphCare through arbitration. Please note that opting out of arbitration will not affect any other agreements or waivers made in this Section 17.
If you have not validly opted out of arbitration, you agree that any action at law or in equity relating to the arbitration provision of these Terms or the Excluded Disputes will be filed only in the state or federal courts located in Charlotte, North Carolina, and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. If you have validly opted out of arbitration, you agree that any action at law or in equity will be filed only in the state or federal courts located in Charlotte, North Carolina, and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
19. JURISDICTIONAL ISSUES
The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject LymphCare to any registration requirement within such jurisdiction or country. LymphCare controls the Site from offices located in Germany and makes no representations or warranties that the information, products or services contained on the Site are appropriate for use or access in other locations. Anyone using or accessing the Site from other locations does so on their own initiative and is responsible for compliance with United States' and local laws regarding online conduct and acceptable content, if and to the extent such laws are applicable. We reserve the right to limit the availability of the Site or any portion of the Site, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that we provide.
Software related to or made available by the Site may be subject to United States export controls. Thus, no software from the Site may be downloaded, exported or re-exported: (a) into (or to a national or resident of) any country to which the United States government has embargoed goods or designated as a “terrorist supporting country”; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals, the U.S. Commerce Department's Table of Deny Orders, or any other U.S. Government list of prohibited or restricted parties. By downloading any software related to the Site, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
LymphCare does not do business in every jurisdiction. Information published on the Site may contain references or cross-references to goods or services that are not available in your state or country.
20. LINKS TO THIRD PARTY CONTENT
The Site may provide links to certain web sites, videos, services and features that are provided by third parties. Functionality on the Site may also permit interactions between the Site and a third party web site or online feature, including functionality that allows you to connect the Site or your profile on the Site with a third party site. For example, the Site may include features enabling you to indicate on a third party web site or service that you “like” certain Site content, to share Site content on a third party web site or service, to log-in to the Site using your username and password for a third party web site or service, to transmit content to the Site from your account on a third party web site or service, and to otherwise connect the Site to a third party web site or service. Using this functionality may require you to login to your account on the third party site, and you do so at your own risk.
Descriptions of, references to, or links to products, services or publications within the Site do not imply endorsement of that product, service or publication.
21. LINKING POLICY
LymphCare grants you the revocable permission to link to the Site; provided, however, that any link to the Site: (a) must not present false information about, disparage, damage, dilute or tarnish the goodwill associated with LymphCare or its products or services, any LymphCare property or any other intellectual property; (b) must not create the false appearance that your web site or organization is sponsored, endorsed by, affiliated or associated with LymphCare; (c) must not frame or create a browser or border environment around any of the content on the Site or otherwise mirror any part of the Site; (d) must not use any LymphCare trademarks without the prior written permission from LymphCare; (e) must not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in LymphCare's sole opinion); and (f) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these Terms. You agree that you will not link to the Site from any source that is unlawful, abusive, indecent or obscene, that promotes violence or illegal acts, that contains expressions of racism, that is libelous, defamatory, scandalous, or inflammatory or is otherwise inappropriate (in LymphCare's sole discretion). By linking to the Site, you agree that you do and will continue to comply with the above linking requirements.
LymphCare reserves the right, without notice or liability and at its sole discretion, to suspend or terminate these Terms and/or your ability to access or use the Site (or any portion of the Site), and to block or prevent future access to and use of the Site for any reason, including, without limitation, your breach of these Terms or other conduct by you that LymphCare considers inappropriate. LymphCare reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Site with or without notice. You agree that no LymphCare Party shall be liable to you or to any third party for any modification, suspension or discontinuation of the Site. You acknowledge and agree that termination, suspension, or cancellation of these Terms or your access to the Site will not affect any right or relief to which LymphCare may be entitled, at law or in equity, nor shall they affect any obligation you have to LymphCare, including but not limited to the payment of fees.
Upon termination of these Terms, all rights granted to you will automatically terminate and immediately revert to LymphCare and its licensors. Upon termination of your access to the Site, or upon demand by LymphCare, you must destroy all Materials and all related documentation including immediately discontinuing the use of any links to the Site. Any provisions of these Terms, which, by their terms, ought to survive, shall survive any termination of these Terms.
You understand and agree that LymphCare will determine your compliance with these Terms in its sole discretion. Any violation of these Terms may be referred to law enforcement authorities.
24. ENTIRE AGREEMENT
26. CHANGES TO THESE TERMS
We reserve the right, in our sole discretion and at any time, to change or add to the terms of these Terms without prior notice ("Updated Terms"). You agree that we may notify you of the Updated Terms by posting them on the Site so that they are accessible via a link from the home page. Therefore, whenever you want to use the Site you should review these Terms before using the Site. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Site from that point forward.
27. CONTACTING US
If you have any comments or questions regarding these Terms, or wish to report any violation of these Terms, please Contact Us at
c/o BSN medical Germany Holding GmbH
Phone +49(0) 40 4909-909
Telefax +49(0) 4909 6666