Terms of Service
These Terms of Service (the “Terms”) govern the relationship between Carepoynt, LLC (hereinafter, “Carepoynt” “us,” or “we”) and you regarding your use of Carepoynt’s healthcare rewards services, any website used to facilitate use of the healthcare rewards services (“Website”), Carepoynt’s healthcare rewards mobile application (the “App”), and any other of Carepoynt’s products or services used to facilitate your use of such services (collectively the “Service”).
IMPORTANT – PLEASE READ CAREFULLY – THESE TERMS CREATE A LEGALLY BINDING AGREEMENT WHICH GOVERNS YOUR USE OF THE SERVICE. BY CREATING AN ACCOUNT (AS DEFINED BELOW) OR BY ACCESSING OR USING THE SERVICE OR ANY CONTENT OFFERED THROUGH THE APP OR THE WEBSITE, YOU ACCEPT AND AGREE TO BE BOUND, WITHOUT LIMITATION OR QUALIFICATION, BY THESE TERMS. IF YOU DO NOT ACCEPT ANY OF THESE TERMS, YOU ARE PROHIBITED FROM USING THE SERVICE. IF YOU WERE USING A BETA VERSION OR OTHER VERSION OF THE SERVICE OFFERED PRIOR TO YOUR ACCEPTANCE OF THESE TERMS, THESE TERMS ALSO APPLY TO YOUR PAST USE OF THAT BETA OR OTHER VERSION OF THE SERVICE.
1. Definitions and Description of the Service.
1.1. Definitions. The following definitions and terms shall apply to these Terms:
(a) “Account” means a unique password protected account that each User must create through the Service.
(b) “Account Balance” means the number of Carepoynts you have earned for use within the Carepoynt Network that have not yet been redeemed.
(c) “Carepoynt Network” means all Providers, Partners, Payers and Employers who may grant and/or redeem Carepoynts. Participating Providers, Partners, Payers and Employers may change from time to time without prior notice and will be removed or added to the Carepoynt Network accordingly.
(d) “Carepoynts” means unit of value within the Carepoynt Network which can be earned for completing certain Qualifying Activities and redeemed for Rewards.
(e) “Cliques” means people and groups that are important to your healthcare plans and experiences, and that are linked to you within the Service.
(f) “Employer” means a company that has elected to enroll its employees in the Carepoynt Network as part of its benefits package.
(g) “Member” means a User of the Service, including you, who is a user or purchaser of healthcare, wellness and other health promoting services and products and who can earn Carepoynts for such activities.
(h) “Partners” means businesses who offer healthcare and wellness related services as an option for Member’s to earn or redeem their Carepoynts.
(i) “Payer” means health insurance companies, government agencies and other third-parties that pay for healthcare services.
(j) “Provider” means a User of the Service who has been approved by Carepoynt and who has agreed to (i) grant Carepoynts for healthcare and wellness related purchases and activities or (ii) redeem Carepoynts for products or services.
(k) “Qualifying Activity” means a health-conscious decision or activity that qualifies to earn Carepoynts, which may include certain healthy living activities and habits, using healthcare and wellness services, purchasing healthy things and responding to certain promotions that may be offered by Carepoynt and certain Providers, Partners, Payers, and Employers from time to time, as more fully described by each Provider, Partner, Payer and Employer. Services that are paid for by Medicare or Medicaid will not and cannot be Qualifying Activities.
(l) “Reward” means discounts, merchandise, services, gift cards, or certificates received upon the redemption of Carepoynts.
(m) “User” means anyone who has an Account and includes Members, Providers, Partners, Employers, and Payers.
1.2. Earning Carepoynts. You may use the Service to search for Providers and Partners within the Carepoynt Network, and to search for potential opportunities to earn or redeem Carepoynts. All Members, including you, can earn and redeem Carepoynts pursuant to the terms and conditions set forth below:
(a) You can view your Account Balance, a description of available Rewards, and the number of Carepoynts required to obtain each Reward at any time by logging into your Account.
(b) Qualifying Activities are determined by Providers, Employers, and Partners, and may change from time to time without notice.
(c) Carepoynts earned or accumulated shall at all times remain the property of Carepoynt. Carepoynts have no cash equivalent or similar value except to redeem for Rewards through the Service. Carepoynts may not be redeemed for cash.
(d) Carepoynts should appear in a Member’s Account Balance within [five (5) business days] after they are earned. Carepoynts may only be redeemed for a Reward after they appear in a User’s Account Balance.
(e) When you redeem your Carepoynts for a Reward, the number of Carepoynts in your Account will be reduced by the number of Carepoynts used to redeem the Reward.
(f) Carepoynts may only be redeemed by following the appropriate redemption process for each Reward outlined within the Service. Although certain Partners and Providers may offer merchandise or services as Rewards, such Partners and Providers cannot directly redeem your Carepoynts.
(g) Unredeemed Carepoynts will expire eighteen (18) months after the date on which they first appear in a Member’s Account Balance.
(h) Carepoynt reserves the right to change the available Rewards without notice, and we do not guarantee the availability of any particular Reward. We also reserve the right to change at any time and without notice the number of Carepoynts required to redeem a particular Reward.
(i) Carepoynt reserves the right to terminate any Account that does not earn a Carepoynt during any period of eighteen (18) consecutive months.
(j) In the event Carepoynts are donated to the Carepoynt ‘WeCare’ Foundation or another good cause, Carepoynt will not provide you with a receipt for purposes of deducting the donation from your income taxes due.
(k) Carepoynts may be deducted from a Member’s Account Balance as the result of a return of purchased merchandise, a request for a refund for services, or an unresolved dispute with a Partner or Provider over the completion of a Qualifying Activity.
(l) Carepoynt reserves the right to grant Carepoynts to select Members or to all Members, according to criteria established by Carepoynt in Carepoynt’s sole discretion, as part of its periodic marketing activities and promotions.
(m) When enabled, Carepoynts may be pooled or shared among Users within a Clique only after the Member who earned such Carepoynts has agreed to the pooling or sharing of such Member’s Carepoynts within the Clique.
(n) You may be required to provide additional information (such as your name, address, mobile telephone number, information required for travel, or other information) in order to redeem a Reward, and your receipt of the Reward is contingent upon your providing us with the information we request. We may also require that you takes steps to verify your Account, such as by sending you a text message to which you must respond, or otherwise, before redeeming a Reward.
(o) A particular Reward may be subject to specific terms and conditions, such as an expiration date of the Reward, shipping and handling fees, additional purchases or other requirements to use or deliver the Reward, any return policy requirements and any warranties for the Reward, or any other limitations or restrictions on obtaining, retaining or using the Reward. Neither Carepoynt nor the merchant, Partner, or Provider providing the Reward will be liable if a Reward expires prior to redemption or use. You and the merchant, Partner or Provider providing the Reward are responsible for compliance with all laws related to redeeming and receiving the Reward, including the payment and collection of any applicable federal, state, or local taxes. Unless stated otherwise in the redemption instructions for a particular Reward, Carepoynts cannot be used to pay such taxes. In addition, in order to redeem a particular Reward, you may have to accept a particular merchant’s, Partner’s or Provider’s terms and conditions.
(p) All redemptions of Carepoynts for Rewards are final. All non-merchandise Rewards, such as service, gift cards and travel certificates, cannot be returned. Rewards of merchandise may not be exchanged or refunded after they have been delivered unless such a Reward is defective or has been damaged in transit. Merchants, Partners and Providers, and not Carepoynt, are ultimately responsible for replacing any defective or damaged Rewards. Refunds, exchanges and other issues relating to the Reward are governed by the merchant’s, Partner’s or Provider’s terms and conditions applicable to the purchase. Redeemed Rewards are not refundable, exchangeable, or transferable for cash, credit, other Rewards or Carepoynts. Neither Carepoynt nor our participating merchants, Partners or Providers are responsible for replacing lost, stolen, or mutilated Rewards, including retail or travel certificates, gift certificates, gift cards, or merchandise. You may not redeem Carepoynts for Rewards if your Account has been suspended or terminated for any reason.
2. Right, License and Restrictions.
2.1. License Grant For Service. Subject to your agreement to, and continuing compliance with, these Terms and any other relevant Carepoynt policies, Carepoynt grants you a non-exclusive, non-transferable, revocable limited right and license to access and use the Service.
2.2. App Specific Terms. You may agree to be bound by other terms regarding use or installation of the App and such terms continue to apply regardless of you agreeing to be bound by these Terms except to the extent such other terms conflict with any of these Terms, these Terms shall apply. You agree not to distribute or modify the App. You agree to always only use the latest available version of the App and acknowledge that any use of an older version of the App may result in some or all parts of the Service to not be available or to function properly. You agree not to reverse engineer, decompile or otherwise attempt to view the source code for the App.
2.3. Minimum Age Requirement. An individual must be at least 18 years of age to use the Service.
2.4. Accounts and Access. You must register for an Account in order to use the Service. You may only register for one Account.
2.5. Use of the Service: The following restrictions apply to the use of the Service:
(a) You accept full responsibility for any unauthorized use of the Service by parties not authorized to use your Account. Additionally, you are responsible for any use of your credit card or other payment instrument (e.g. PayPal) incurred by parties using your Account;
(b) You shall not create an Account using a false identity or false information, or on behalf of someone other than yourself;
(c) Without first obtaining the written permission of Carepoynt, you shall not register for an Account or in any way use the Service if Carepoynt has removed, suspended, or otherwise terminated any Account registered by you or on behalf of you or if Carepoynt has notified you that you may not use the Service;
(d) You shall not use your Account to advertise, solicit or transmit any commercial advertisements, including chain letters, junk email or repetitive messages to anyone;
(e) You shall not use the Service to engage in any illegal conduct including the purchase or sale of illegal substances;
(f) You shall not rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account to anyone without Carepoynt’s written permission;
(g) You shall not reproduce, distribute or publicly display any content you access through the Service unless such content is clearly marked as “public” and you have been given the right to view such content;
(h) You shall not do anything with any content you access through the Service that has been marked with restrictions or other instructions that is counter to such restrictions or other instructions; and
2.6. Account Information and Management.
(b) Login Information. During the Account creation process, you will be required to select a username and password (“Login Information”). The following rules govern the security of your Login Information:
(i) You shall not share the Account or the Login Information, nor let anyone else access your Account or do anything else that might jeopardize the security of your Account;
(ii) In the event you become aware of, or reasonably suspect, any breach of security, including without limitation any loss, theft or unauthorized disclosure of your Login Information, you must immediately notify Carepoynt and change the password on your Account;
(iii) You are solely responsible for maintaining the confidentiality of your Login Information and you will be responsible for all uses of your Login Information, including purchases and the redemption of Carepoynts, whether or not authorized by you; and
(iv) You are responsible for anything that happens through your Account.
(c) Reclaiming Usernames. Carepoynt reserves the right to remove or reclaim any username at any time and for any reason or no reason, including but not limited to claims by a third party that a username violates the third party’s rights.
2.7. License and Account Limitations and Prohibitions.
(a) General Effects of Violations. Any use of the Service in violation of these Terms is strictly prohibited, can result in the immediate revocation of your limited license granted by Section 2, and may subject you to liability for violations of law. Carepoynt is permitted to list or restrict use of the Service for anyone who Carepoynt reasonably believes has or will violate any applicable law when using the Service.
(b) Activity Prohibitions. You agree that you will not, under any circumstances:
(i) Engage in any act that Carepoynt deems to be in conflict with the spirit or intent of the Service, including but not limited to circumventing or manipulating these Terms;
(ii) Use the Service in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
(iii) Modify or cause to be modified any files or content that are used to offer the Service, without the express prior written consent of Carepoynt;
(iv) Disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Service (each a “Server”) or (2) the use or enjoyment of the Service by any other person;
(v) Institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service;
(vi) Gain, or attempt to gain, unauthorized access to the Service, Accounts, Servers or networks connected to the Service by any means (including, but not limited to, circumventing or modifying, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Service);
(vii) Post any information that is abusive, threatening, obscene, defamatory, libelous or racially, sexually, religiously or otherwise objectionable or offensive;
(viii) Post any information that contains nudity, excessive violence or offensive subject matter or that contains a link to such content;
(ix) Harass, abuse, harm, or advocate or incite harassment, abuse or harm of another person or group of persons, including Carepoynt employees or customer service representatives;
(x) Post, distribute or make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity or other right of any person or entity or impersonates any other person;
(xi) Transmit unauthorized communications through the Service, including junk mail, chain letters, spam and any materials that promote malware, spyware and downloadable items;
(xii) Interfere or attempt to interfere with the proper functioning of the Service or connect to or use the Service in any way not expressly permitted by these Terms;
(xiii) Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a Server or the Service, whether through the use of a network analyzer, packet sniffer or other device;
(xiv) Make any automated use of the Service or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure, as we determine in our sole discretion;
(xv) Bypass any robot exclusion headers or other measures we take torestrict access to the Service or use any software, technology or device to send content or messages, scrape, spider or crawl the Service, or harvest or manipulate data from, through, or relating to the Service;
(xvi) Use, facilitate, create or maintain any unauthorized connection to the Service, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Service or (2) any connection using programs, tools or software not expressly approved in writing by Carepoynt;
(xvii) Copy, modify or distribute rights or content from any Carepoynt site, including but not limited to content that contains or is protected by Carepoynt’s copyrights or trademarks or use any method to copy or distribute the content of the Service, except as specifically allowed in these Terms;
(xviii) Solicit or attempt to solicit personal information from other Users, other than from Users with whom you have an existing business relationship and only in connection with a bona fide business purpose for which the Service is intended;
(xix) Collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image, video, or other form), identification documents or financial information through the Service; or
(xx) Upload or transmit (or attempt to upload or to transmit), without Carepoynt’s express written permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation clear graphics interchange formats (“gifs”), 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
2.8. Suspension and Termination of Account and Service:
(a) FAILURE TO COMPLY. WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY, WITH OR WITHOUT NOTICE TO YOU, LIMIT, SUSPEND, TERMINATE, MODIFY OR DELETE YOUR ACCOUNT OR YOUR ACCESS TO THE SERVICE OR PORTIONS THEREOF IF, IN OUR SOLE DISCRETION, YOU FAIL TO COMPLY WITH ANY OF THESE TERMS OR YOUR ACCOUNT IS USED FOR ACTUAL OR SUSPECTED ILLEGAL ACTIVITY OR IMPROPER USE OF THE SERVICE. CAREPOYNT SHALL BE UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY LOSSES OR ADVERSE RESULTS THAT ARE DUE TO THE SUSPENSION, TERMINATION, MODIFICATION, OR DELETION OF YOUR OR ANY ACCOUNT.
(b) IP INFRINGEMENT.
(i) WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR SITES AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE ANY CONTENT AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICE IF WE BELIEVE THAT YOU ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES.
(ii) REPEAT INFRINGERS. IN APPROPRIATE CIRCUMSTANCES IT IS OUR POLICY TO SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO ARE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
(c) Right to Cease Service. Carepoynt reserves the right to stop offering and/or supporting the Service or part of the Service at any time, at which point the license granted hereunder to you to use the Service or a part thereof will automatically terminate. Carepoynt shall not be required to provide refunds, benefits or other compensation to Users in connection with such cessation of the Service or any part thereof.
(d) Termination of Account. Termination of your Account can include disabling your access to the Service or any part thereof, including disabling access to any content that you or other Users submitted. You agree that if your Account is terminated, Carepoynt will not be obligated to preserve, provide you access to, or provide copies of any content submitted to the Service relating to your Account, whether by you or an another User.
(e) Cancellation of Account. You may cancel your Account at any time by sending an email to email@example.com, which email shall include your name, Account number, and reason for cancelling your Account.
(f) Effects of Termination. In the event your account is terminated or cancelled, you will forfeit all earned and unredeemed Carepoynts in your Account Balance.
2.9. Intellectual Property Ownership in the Service. The Service, and all of its components and contents, (including without limitation any computer code, template content, pre-populated content, concepts, artwork, animations, sounds, musical compositions, audio-visual effects and text contained within) is owned by Carepoynt or its licensors, and all of which material is protected by United States and international patent, copyright, trademark, trade secret, and other intellectual property laws.
2.10. Obligation to Receive Communications. As a condition to your use of the Service, you agree to allow Carepoynt to send you emails and other alerts related to the Service, your Account Balances, and other promotions and alerts related to the Service.
3. Posted Content.
3.1. Posted Content: “Posted Content” means any communications, videos, images, sounds, and all the material, data, and information that you upload, post, publish or transmit through the Service, including without limitation any comments you may make about content uploaded or transmitted by other Users. We may provide you with templates, pre-populated communications, or other content through the Service (“Template Content”) that you may distribute, use or modify as part of using our Service to communicate with other Users in a manner consistent with the intended use of the Service. You acknowledge that your use of any Template Content does not relieve you of any responsibilities or obligations under this Agreement. By transmitting or submitting any Posted Content while using the Service, you affirm, represent and warrant that such transmission or submission: (a) is accurate and not confidential; (b) is not in violation of any applicable law, contractual restrictions or other third party rights, and that you have permission from any third party whose personal information or intellectual property is comprised in the Posted Content; (c) will not, when Carepoynt exercises rights in Posted Content granted under these Terms, result in any infringement of the intellectual property rights of any third party or violate or misappropriate any rights of publicity or privacy for any third party; and (d) is free of viruses, adware, spyware, worms or other malicious code. You further represent and warrant that you have all rights necessary to transmit Posted Content to Carepoynt and to grant the rights in Posted Content granted to Carepoynt under these Terms.
3.2. Licenses to Posted Content: You hereby grant Carepoynt a perpetual and irrevocable (other than as provided below), worldwide, fully paid-up and royalty free, non-exclusive, assignable, unlimited license and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works of, manufacture, introduce into circulation, publish, distribute, sublicense, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way now known or in the future discovered, your Posted Content as well as all modified and derivative works thereof. Carepoynt will only exercise the rights granted in this Section 3.2 to offer or to facilitate the offering of the Service. To the extent permitted by applicable laws, you hereby waive any moral rights or any of your rights of publicity or privacy you may have in any Posted Content. Carepoynt will cease any further public display or distribution of any Posted Content if you use the features of the Service that permit you to indicate that certain Posted Content is to no longer be displayed or distributed to other Users except Carepoynt retains the right to display or distribute any Posted Content as necessary for Carepoynt to fulfill its legal duties or in connection with bringing or defending any legal claims or actions that may arise now or in the future.
3.3. Content Screening.
(a) Consent to Monitoring. By entering into these Terms, you hereby provide your irrevocable consent to our monitoring and recording of your use of the Service. You acknowledge and agree that you have no expectation of privacy vis a vis us or any of our service providers who provide services to us or you as part of Service concerning the transmission of any information, including without limitation chat, text or voice communications.
(b) Options Regarding Posted Content. Carepoynt may reject, refuse to post or delete any or all Posted Content for any or no reason, including, but not limited to the reason that, in the sole judgment of Carepoynt, that the contents or posting or other use of such Posted Content in connection with the Service violates these Terms.
3.4. User Interactions and Legal Problems; Releases. You hereby release us, and our officers, directors, agents, subsidiaries, joint ventures and employees, from any and all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute that arises between you and one or more other Users. If you are a California resident, you acknowledge that you are aware of, and hereby waive your rights under the provisions of California Civil Code Section 1542, which provides: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
4. Fees and Purchase Terms. You agree to pay any and all fees and applicable taxes incurred by you or anyone using an Account registered to you. Any required fees will be specified as part of the Service or when you register your Account. Carepoynt reserves the right to charge fees for any parts of the Service that may have previously been offered without a fee. You agree that Carepoynt in the future may offer premium services as part of the Service that may require fees or additional fees. Carepoynt may revise the pricing for the goods and services offered through the Service at any time. YOU ACKNOWLEDGE THAT CAREPOYNT IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED PRODUCTS AND SERVICES WHEN YOUR ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
5. Third Party Advertising.
5.2. Links to Third Party Sites and Dealings with Advertisers. Carepoynt may provide links on the Service to third party websites or vendors who may invite you to participate in a promotional offer in return for receiving a benefit. Any charges or obligations you incur in your dealings with these third parties are your responsibility. Carepoynt makes no representation or warranty regarding any content, goods, or services provided by any third party even if linked from our Service, and we will not be liable for any claim relating to any third party content, goods, or services. The linked sites are not under the control of Carepoynt and may collect data or solicit personal information from you. Carepoynt is not responsible for their content, business practices or privacy policies, or for the collection, use or disclosure of any information those sites may collect. Further, the inclusion of any link does not imply endorsement by Carepoynt of these linked sites.
6. Copyright Notices; Complaints. It is Carepoynt’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (the “DMCA”). Carepoynt reserves the right to terminate without notice any User’s access to the Service if that User is determined by Carepoynt to be a “repeat infringer.” In addition, Carepoynt accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
7. Updates to the Service. You understand that the Service undergoes frequent changes. Carepoynt may require that you accept updates to the Service in order to continue using the Service. You acknowledge and agree that Carepoynt may update the Service without notifying you.
8. Disclaimer; Limitations; Waivers on Liability; Indemnification.
8.1. Disclaimer of Warranties.
(a) SERVICE PROVIDED “AS IS”. YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD THE SHORTER OF THIRTY (30) CALENDAR DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED).
(b) NO WARRANTY OF ERROR-FREE OPERATION. WITHOUT LIMITING THE FOREGOING, NEITHER CAREPOYNT NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, THIRD-PARTY SERVICE PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “CAREPOYNT PARTIES”) WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
(c) NO WARRANTY REGARDING ACCESS TO ACCOUNTS AND CONTENT. CAREPOYNT DOES NOT WARRANT THAT ALL CONTENT OR INFORMATION POSTED BY A USER WILL REMAIN AVAILABLE AT ALL TIMES OR WILL NEVER BE DELETED, CORRUPTED OR OTHERWISE UNAVAILABLE. CAREPOYNT DOES NOT WARRANT THAT THE SERVICE, USER INFORMATION OR ANY INFORMATION POSTED BY AN USER WILL BE KEPT FROM ANY PARTICULAR INDIVIDUAL OR ENTITY WHO EITHER HACKS OR ENGAGES IN UNAUTHORIZED ACCESS TO SUCH CONTENT OR INFORMATION OR IS MISTAKENLY GRANTED ACCESS BY CAREPOYNT OR THROUGH THE SERVICE.
(d) NO WARRANTY REGARDING USE OF THE SERVICE. CAREPOYNT DOES NOT WARRANT that youR HEALTH will IMPROVE AS A RESULT OF YOUR USE OF THE SERVICE.
8.2. Limitations; Waivers of Liability.
(a) DISCLAIMER OF INDIRECT DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE CAREPOYNT PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE.
(b) NOT RESPONSIBLE FOR THIRD PARTY CONDUCT. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE CAREPOYNT PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE CAREPOYNT PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING PARTNERS, PROVIDERS, PAYORS, EMPLOYERS, OTHER USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
(c) MONETARY LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL THE CAREPOYNT PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID TO CAREPOYNT IN THE ONE HUNDRED EIGHTY (180) CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM. CAREPOYNT SHALL HAVE NO LIABILITY FOR ANY MEDICAL SERVICES, MEDICAL SUPPLIES, OR HEALTHCARE SERVICES YOU ELECT TO RECEIVE AND CAREPOYNT SHALL HAVE NO LIABILITY FOR YOUR REDEMPTION OF A REWARD.
(d) FAILURE TO PAY. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID CAREPOYNT ANY AMOUNTS IN THE ONE HUNDRED EIGHTY (180) CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH CAREPOYNT IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
(e) DISCLAIMER MAY NOT BE APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU.
8.3. Indemnification. You agree to defend, indemnify, save, and hold the Carepoynt Parties harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, any violation by you of these Terms, any breach of the representations, warranties and covenants made by you herein, or any refusal of a Provider to participate in the Service. Carepoynt reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Carepoynt and you agree to cooperate with Carepoynt’s defense of these claims. Carepoynt will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. You agree that the provisions in this Section will survive any termination of these Terms, your Account or of the Service.
9. Dispute Resolution.
9.1. General. If a dispute arises between you and Carepoynt, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Carepoynt agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or the Service (a “Claim”) in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution by going to Customer Support. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. Other than those matters listed in Section 9.2, you and Carepoynt agree to seek resolution of the dispute only through arbitration of that dispute in accordance with the terms of this Section 9, and not litigate any dispute in court. Arbitration means that the dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
9.2. Exclusions from Arbitration. YOU AND CAREPOYNT AGREE THAT ANY CLAIM FILED BY YOU OR BY CAREPOYNT IN SMALL CLAIMS COURT OR BY CAREPOYNT RELATED TO PROTECTION OF CAREPOYNT’S OR ANY CAREPOYNT LICENSOR’S INTELLECTUAL PROPERTY ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION 9.
9.3. RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER IN THIS SECTION 9, YOU MUST NOTIFY CAREPOYNT IN WRITING WITHIN THIRTY (30) DAYS OF THE DATE THAT YOU FIRST ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO CAREPOYNT TERMS ADMINISTRATOR, AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR USERNAME, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH CAREPOYNT THROUGH ARBITRATION.
9.4. Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND CAREPOYNT SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
9.5. Initiation of Arbitration Proceeding; Selection of Arbitrator. If you or Carepoynt elect to resolve your dispute through arbitration, the party initiating the arbitration proceeding must initiate it with the American Arbitration Association (“AAA”). The terms of this Section 9 will govern in the event they conflict with the arbitration rules identified below.
9.6. Arbitration Procedures. Because the software and/or service provided to you by Carepoynt concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, applicable federal or state law may also apply to the substance of any disputes. For claims of less than $75,000, the AAA’s Consumer Arbitration Rules shall apply; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and you provided notice to, and negotiated in good faith with, Carepoynt as described above, and if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to Carepoynt or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
9.7. Location of Arbitration. You or Carepoynt may initiate arbitration in either San Francisco, California or the county in which you reside. If you initiate arbitration in the county of your residence, Carepoynt may transfer the arbitration to San Francisco, California provided that Carepoynt agrees to pay any additional fees or costs you incur as a result of the change in location, as determined by the arbitrator.
9.8. Severability. If any clause within this Section 9 (other than the Class Action Waiver clause of Section 9.4) is found to be illegal or unenforceable, that clause will be severed from this Section 9 and the remainder of this Section 9 will be given full force and effect. If the Class Action Waiver (Section 9.4) clause is found to be illegal or unenforceable, this entire Section 9, except for this Section 9.8, will be unenforceable and the dispute will be decided by a court and IN THAT INSTANCE, YOU AND CAREPOYNT EACH WAIVE AND AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY, TO THE EXTENT ALLOWED BY LAW.
9.9. Survival. This Section 9 shall survive any termination of the Terms.
10. General Provisions.
10.3. Assignment. Carepoynt may assign any of its rights or delegate any of its obligations under these Terms, in whole or in part, to any person or entity at any time without your consent. You hereby agree that in the event Carepoynt merges with or into another entity, or is acquired by another entity, Carepoynt may share your Account information, including your Account Balance and Carepoynts history, with the merging or acquiring entity and its affiliates. You may not assign or delegate any rights or obligations under the Terms without the prior written consent of Carepoynt; any purported assignment or delegation in violation of this Section 10.3 is void.
10.4. Supplemental Policies. Carepoynt may publish additional policies related to specific services such as forums, contests, or loyalty programs. Your use, if any, of such services is subject to such specific policies and these Terms.
10.8. Equitable Remedies. You acknowledge that the rights granted and obligations made under these Terms to Carepoynt are of a unique and irreplaceable nature, the loss of which shall irreparably harm Carepoynt and which cannot be replaced by monetary damages alone, so that Carepoynt shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service and agree to limit your claims to claims for monetary damages, limited by Section 8.2.
10.9. Force Majeure. Carepoynt shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Carepoynt, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Carepoynt’s control, such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, shortages of transportation facilities, fuel, energy, labor or materials.
February 17, 2017