Illuminate Health, Inc.
Effective Date: [July 17, 2018]
NOT FOR EMERGENCIES
THE SERVICES ARE NOT FOR USE IN MEDICAL EMERGENCIES OR OTHER URGENT SITUATIONS. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY.
other users of such individual’s account, such as the individual’s parents, guardians, caregivers other users), as a user of the Website and/or the Apps for adherence, and us.
NOTE THAT SECTION 21 OF THESE TERMS CONTAINS A MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS AND LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
By clicking “I Accept” or by accessing or using the Services, you agree to these Terms. If you do not agree with these Terms, including the mandatory arbitration provision and class action waiver in Section 21, you are not authorized to access or use the Website or the Apps for any purpose.
Nature of Beta. Illuminate may offer additions to our Services as part of a beta test phase. All or portions of the Services and Privacy/Security safeguards included in this test phase may not exist, function correctly, or may contain errors. Illuminate is not obligated to correct, nor is it responsible for, errors or the effects of such errors while the beta test phases of these Services are active. Further, you acknowledge that Illuminate has no express or implied obligation to announce or make available any particular features of the beta Services in the future. Should these Services launch publicly after the beta phase, it may have features or functionality that are different than those found in the beta version licensed herein.
Illuminate provides a technology platform via the Website and Apps that serve as a digital assistant for Users to safely self-administer their prescription medications. The Services provide a suite of services to assist with adherence, such as user education resources, intelligent scheduling, messaging functionality, usage analytics, and other Services that we may offer from time to time. Illuminate is not itself a provider of health care services, and any healthcare providers that you interact with on the Services are not acting as employees or agents of Illuminate.
2. Secondary Tool; Not a Healthcare Provider; No Medical Advice.
The Services are intended as helpful backup reminder services that you can personalize for taking your medications. The Services are an informational resource designed to assist licensed healthcare practitioners in caring for their patients and/or to serve end-users viewing this service as a supplement to, and not a substitute for, the expertise, skill, knowledge and judgment of healthcare practitioners. You should not and must not rely on the Services as your primary tool for determining whether and when to take medication. The Services might not function as intended. The absence of a warning for a given medication or medication combination in no way should be construed to indicate that the medication or medication combination is safe, effective or appropriate for any given patient. The information contained herein is not intended to cover all possible uses, directions, precautions, warnings, interactions, allergic reactions, or adverse effects. You are solely responsible for ensuring that the correct medication is taken at the proper times and in the proper dosages. If you have questions about the medications you are taking, check with your Practice User or pharmacist. Individuals using the Services assume full responsibility for the use of the Services and agree that we are not responsible or liable for any claim, loss, or damage arising from the use of the Services.
While we enable Users to communicate with other Users, and with Practice Users, we are not responsible for monitoring such information and communications, and we are not a party to transactions that may occur between Users and Practice Users. In addition, we are not responsible for and we expressly disclaim all liability that may result from information made available by Users or Practice Users and the conduct of Users and Practice Users, whether online or offline. Illuminate does not sponsor, endorse, recommend or approve of any Practice User, nor do we make any representations or warranties about the quality, timing or legality of the products or services they provide. Additionally, we cannot and do not represent or warrant that any Practice User is licensed, qualified, insured or capable of performing any product or service, and we make no representations or warranties about the suitability, reliability or accuracy of the products and services they provide.
ILLUMINATE IS NOT A HEALTHCARE PROVIDER, AND THE SERVICES DO NOT INCLUDE THE PROVISION OF MEDICAL CARE, HEALTH CARE SERVICES, OR OTHER PROFESSIONAL SERVICES BY ILLUMINATE. While the Services may allow Practice Users to communicate with Users, the Services cannot and are not intended to provide medical advice. Always seek the advice of your Practice User or other qualified healthcare provider with any questions regarding your personal health or medical conditions. If you have or suspect that you have a medical problem or condition, please contact a qualified healthcare professional or 9-1-1 immediately.
If any medical advice is provided to you by a Practice User through the Services, such medical advice is not provided by Illuminate but is provided by your Practice User.
The Services are not targeted toward or intended for use by anyone under the age of 18. By using the Services, you represent and warrant that you (a) are 18 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from the Services, or engaged in any activity that could result in suspension or removal from the Services, (d) do not have more than one Illuminate Account, and (e) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party. If you are accessing or using our Services on behalf of another person or entity, you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms.
5. User Accounts, Account Security, and Communication Preferences.
You may need to register for an Illuminate Account (“Account”) to access some or all of our Services. Unless you use a social sign-in such as Facebook or Google when creating an Account, you will be required to create a password, a 4-digit passcode, and provide your name, email address, and phone number when you create an Account. If you register for an Account, you must provide accurate Account information and promptly update this information if it changes. You also must maintain the security of your Account and promptly notify us if you discover or suspect that someone has accessed your Account without your permission. You may designate another person involved with your care, called a “Caregiver”, to receive access to your Account. You understand that the Caregiver will be able to access your Account and all of the information in the Account, including the ability to download, print, email and provide access to the information to others. If you permit others to use your Account credentials, or if you designate a Caregiver, you are responsible for the activities of such users, including Caregivers ,that occur in connection with your Account.
By creating an Account, you also consent to receive electronic communications from Illuminate (e.g., via email, text message, or by posting notices to the Services). These communications may include operational notices about your Account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
6. Additional Terms Applicable to Practice Users.
If you are using the Services on behalf of a health care provider, pharmacy, payer, health plan sponsor, or other entity that is an Illuminate customer (a “Provider Customer”), these Terms supplement any services agreement, business associate agreement and/or any other agreement between us and the Provider Customer (collectively, the “Customer Agreement”). To the extent that these Terms conflict with any Customer Agreement, the Customer Agreement will control. If you are using the Services as an employee or other representative of a Provider Customer, you are a “Practice User” for purposes of these Terms. Customer Agreements contain terms protecting privacy and may contain terms that control over these Terms for Practice Users. In addition to the other provisions of these Terms, the following provisions apply specifically and solely to Practice Users:
6.1. Registration. Certain aspects of the Services are available only to Practice Users who register with us. To register with us as a Practice User, you must be of legal age to form a binding contract. When you register, you will choose a user name and a password. You are responsible for safeguarding and maintaining the confidentiality of your user name and password and you agree not to disclose them to any third party unless otherwise permitted in a written agreement with us. You will be solely responsible for any activities or actions taken under your registered Account, whether or not you have authorized such activities or actions. You must notify us immediately if your user name and password have been lost or stolen or if you otherwise know or suspect that any unauthorized person is using your password or your Account. We strongly recommend that you do not access or use the Website on public computers. You agree that the information that provided to us during registration or at any other time, will be provided in good faith and will be true, accurate, current, and complete. This information includes, but is not limited to, your name and e-mail address.
If you provide your health care services through, or on behalf of a legal entity, you represent, warrant and covenant that (i) you have the authority to bind such entity to these Terms, and (ii) such entity will comply with these Terms. Each individual health care provider employed or engaged by such entity must separately register with us as a Practice User. No individual, other than the individual Practice User registering as a Practice User, may use the Services under the Practice User’s Account information.
6.2. Qualifications. You further represent, warrant and covenant that, at the time of registration and on an ongoing basis, that you (i) satisfy all professional licensing requirements applicable to the professional services you are providing via the Services, (ii) hold all valid and current licenses required to provide such services, (iii) are in good standing with each licensure board or other authority issuing such licenses or otherwise having regulatory authority over you, and (iv) have not received any notice of cancellation, probation, suspension, revocation or non-renewal of any licenses required to provide such services. If and for so long as you fail to satisfy the provisions of this paragraph, you will cease all use of the Services. You will, at our request, cooperate with us in confirming your professional credentials and compliance with the foregoing representations and warranties.
6.3. Independent Contractor. You acknowledge that you are an independent contractor, and that no agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms or any relationship between you and Illuminate. You shall be responsible for the supervision, direction, control, compensation, benefits, and withholdings of all of your employees.
6.4. Confidentiality. To the extent you receive any confidential information of Illuminate in connection with your use of the Services, including but not limited to information concerning fees, marketing plans, financial results, Users, Practice Users, pricing schedules, product lines, product plans, proprietary technology, research information, practices, trade secrets, and any and all other information as deemed confidential by Illuminate which is not generally known to the public, you agree to protect such information against any unauthorized use or disclosure and to use such information solely for the purposes for which it was disclosed to you. For purposes of clarification and not limitation, you are not permitted to disclose information about Users or Practice Users that you collect through the Services to any third party without the express written consent of Illuminate.
7. Responsibility for Your Care; Practice User Credentials.
Each User’s health care is solely the responsibility of each Practice User and his or her respective User(s). Practice Users are the exclusive providers of any health advice and services provided through the Services. Illuminate supports Practice Users by providing them with certain rights to access and use the Services. However, under the Services, Practice Users have the exclusive control and responsibility for the delivery of health care services.
Each Practice User, and not Illuminate, is responsible for, and represents and warrants that it obtained the informed consent from his or her Users to any diagnosis or treatment, including without limitation, consent to use telehealth in the course of any services provided through the Services, to the extent such consent is required by any applicable law or agreement.
Illuminate is not responsible for credentialing Practice Users, makes no representation regarding the accuracy of Practice Users’ credentials or qualifications, and expressly disclaims any liability for fraudulent credentials or claims by Practice Users. We recommend that each User separately confirm that his or her Practice User is qualified and in good standing with his or her respective licensing board(s).
8. Additional Terms Associated with Telehealth Services
If your healthcare provider or health plan has elected to make telehealth services available to you through the App, by accepting these Terms, you are hereby consenting to receive clinical services delivered via telehealth from a Practice User who is located at sites that are remote from you. Video consults are a type of “telemedicine” or “telehealth” service. As with any medical procedure, there are potential risks associated with the use of telemedicine or other forms of telehealth services, which may include, without limitation, the following:
- Delays in medical evaluation and consultation or treatment may occur due to deficiencies or failures of the telehealth technology, or miscommunications between you and the Practice User.
- Security protocols could fail, causing a breach of privacy of personal medical information.
- Lack of access to your medical records or other information or ability to perform an in-person examination, which could result in negative health outcomes (e.g., adverse drug interactions or allergic reactions).
The information provided by you to Practice Users via video consults may be used for diagnosis, treatment, follow-up and/or education, and may include live two-way audio and video and other materials (e.g., your medical record information). The scope of the services delivered via video consults will be at the sole discretion of the Practice User who is interacting with you, with no guarantee of diagnosis, treatment, or prescription. The Practice User will determine whether or not the condition being diagnosed and/or treated is appropriate for a telemedicine encounter via the App.
In addition, the following consents and terms apply to users receiving services via the App who are listed in the states listed below (to the extent applicable):
- Connecticut: The patient’s primary care provider may obtain a copy of your records from the telemedicine consultation.
- Kentucky and Nebraska: You have the right to be informed of any party who will be present during the telemedicine service. You can exclude anyone from being present and you can object to the videotaping of the consultation. In addition, you have the right to request an in-person consult immediately after the telemedicine service and you will be informed if such consult is not available.
- Tennessee: You may request an in-person assessment before receiving the telemedicine service.
- Vermont: You may request an in-person consultation and will receive one upon request immediately or within a reasonable time after the results of the initial consult.
By clicking “I accept” or by accessing or using the App, you acknowledge and accept the risks identified above and the terms associated with the receipt of services via the App and you give your informed consent to receive such services under the terms described herein.
9. User Supplied Material.
Our Services may allow you to upload, store and share content, including messages, text, photos and other materials (collectively, “User Content“). Except for the license you grant below, as between you and Illuminate, you retain all rights in and to your User Content.
You hereby grant Illuminate a nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display your User Content in all media formats and channels now known or later developed without compensation to you.
If you supply or transmit any User Content via the Services, you represent and warrant to us that you have the legal right necessary to grant us the license described above, and that such material will not violate any law or the rights of any person or entity (including without limitation copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity).
Any User Content posted publicly or sent privately is the sole responsibility of the person that submitted it. Although Illuminate reserves the right to review or remove all User Content on the Services, we do not necessarily review all of it. As such, we do not take responsibility for any User Content provided through the Services.
10. Appropriate Use of the Services.
You agree to use the Services in accordance with all applicable local, state, national and foreign laws, treaties and regulations. You will not violate any contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Services.
In addition, without limitation, you will not, directly or indirectly, do any of the following while using or accessing the Services:
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Use or attempt to use another User’s Account without authorization from that User and Illuminate;
- Use our Services in any manner that could interfere with, disrupt, negatively affect or inhibit other Users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
- Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
- Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access;
- Develop or use any third-party applications that interact with our Services without our prior written consent, including any scripts designed to scrape or extract data from our Services;
- Bypass or ignore instructions contained in our robots.txt file, accessible here [insert hyperlink], that controls automated access to portions of our Services; or
- Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
You may also only upload or otherwise share User Content that you have all necessary rights to disclose. You may not upload, store or share any User Content that:
- is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
- would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
- may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
- impersonates, or misrepresents your affiliation with, any person or entity;
- contains any private or personal information of a third party without such third party’s consent;
- contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
- is, in our sole judgment, objectionable or that restricts or inhibits any other person from using or enjoying our Services, or that may expose Illuminate or others to any harm or liability of any type.
In addition, although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason.
11. Termination; Cancellation.
We may change the Services, and the Illuminate Content (defined below) at any time. We may discontinue offering our Services, and we may suspend or terminate your right to use our Services at any time, in the event that you breach these Terms, for any other reason, or for no reason at all, in our sole discretion, and without prior notice to you.
All licenses and other rights granted to you by these Terms will immediately terminate upon termination of your right to use our Services or our termination of the Services. These Terms will survive and continue to apply after any suspension, termination, or cancellation, except that your access rights and other rights as a user will be suspended, terminated or cancelled, respectively.
12. Intellectual Property; Limited License.
The Services, and the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein (collectively, the “Illuminate Content”) are owned by or licensed to Illuminate and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, Illuminate and our licensors reserve all rights in and to our Services and the Illuminate Content.
Illuminate hereby grants you a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services and the Illuminate Content; provided, however, that such license is subject to these Terms and does not include any right to (a) sell, resell our Services and the Illuminate Content; (b) copy, reproduce, distribute, publicly perform or publicly display Illuminate Content, except as expressly permitted by us or our licensors; (c) modify the Illuminate Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services and the Illuminate Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Services and the Illuminate Content other than for their intended purposes. Any use of our Services and the Illuminate Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.
13. Links to Third Parties.
The Services may include links to third-party websites, resources and advertisements (collectively, “Third Party Sites”). We are not responsible or liable for the availability or accuracy of, and Illuminate does not endorse, sponsor, or recommend any Third Party Sites or the content, products, or services on or available from such Third Party Sites. Your use of Third Party Sites is at your own risk, and Illuminate and its affiliates will not be liable for any of losses arising out of or relating to Third Party Sites.
14. Information and Services Provided by Cerner
Any information and services provided by Cerner Multum, Inc. (“Cerner”) on the Services are the sole responsibility of Cerner. Illuminate has no responsibility or liability for the information and services provided by Cerner. Similarly, Cerner has no responsibility or liability for the services provided by Illuminate. Cerner and Illuminate are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms or any relationship between Cerner and Illuminate.
Every effort has been made to ensure that the information provided by Cerner is accurate, up-to-date, and complete, but no guarantee is made to that effect. In addition, the drug information contained herein may be time sensitive. Cerner information has been compiled for use by healthcare practitioners and end-users in the United States. Cerner does not warrant that uses outside of the United States are appropriate.
Cerner’s drug information does not endorse drugs, diagnose patients or recommend therapy. Cerner’s drug information is an informational resource designed to assist licensed healthcare practitioners in caring for their patients and/or to serve end-users viewing this service as a supplement to, and not a substitute for, the expertise, skill, knowledge and judgment of healthcare practitioners. Healthcare practitioners should use their professional judgment in using the information provided. The absence of a warning for a given drug or drug combination in no way should be construed to indicate that the drug or drug combination is safe, effective or appropriate for any given patient. Cerner does not assume any responsibility for any aspect of healthcare administered with the aid of information Cerner provides.
Copyright Cerner Multum, Inc. The information contained herein is not intended to cover all possible uses, directions, precautions, warnings, drug interactions, allergic reactions, or adverse effects. If you have questions about the drugs you are taking, check with your doctor, nurse or pharmacist.
15. Software Updates
Illuminate may from time to time, in its sole discretion (without obligation), develop and provide updates for our Services, which may include upgrades, bug fixes, patches and other error corrections and/or new features (together with Cerner’s updates, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Illuminate has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.
Portions of the software may not properly operate if you do not install all Updates, so we encourage you to promptly install all Updates. To that end, based on your mobile device settings, with respect to an App, when your mobile device is connected to the Internet, either (i) the Updates will automatically download and install or (b) you may receive notice of or be prompted to download and install available Updates. For clarity, all Updates are part of the Services and subject to these Terms.
16. Copyright Complaints
We have a policy of limiting access to our Services and terminating the Accounts of Users who infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify Illuminate’s Designated Agent as follows:
Designated Agent: Varun Goyal
Address: 12400 N Meridian St suite 150, Carmel, IN 46032
Telephone Number: (312) 605-2390
E-Mail Address: email@example.com
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to Illuminate for certain costs and damages.
17. Disclaimer of Warranties.
WHILE WE ENABLE USERS AND PRACTICE USERS TO COMMUNICATE WITH ONE ANOTHER, WE ARE NOT RESPONSIBLE FOR MONITORING SUCH INFORMATION AND COMMUNICATIONS, AND WE ARE NOT A PARTY TO TRANSACTIONS OR INTERACTIONS THAT MAY OCCUR BETWEEN USERS AND PRACTICE USERS, WHETHER ONLINE OR OFFLINE. IN ADDITION, WE ARE NOT RESPONSIBLE FOR AND WE EXPRESSLY DISCLAIM ALL LIABILITY THAT MAY RESULT FROM INFORMATION MADE AVAILABLE BY USERS AND PRACTICE USERS AND THE CONDUCT OF USERS AND PRACTICE USERS, WHETHER ONLINE OR OFFLINE. ILLUMINATE DOES NOT SPONSOR, ENDORSE, RECOMMEND OR APPROVE OF ANY PRACTICE USERS. ADDITIONALLY, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT ANY PRACTICE USER IS LICENSED, QUALIFIED, INSURED OR CAPABLE OF PERFORMING ANY PRODUCT OR SERVICE, AND WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE EXPERTISE, PROFESSIONAL QUALIFICATIONS, OR QUALITY OF WORK OF ANY PRACTICE USER, OR THE SUITABILITY, RELIABILITY OR ACCURACY OF THE PRODUCTS AND SERVICES THEY PROVIDE.
YOUR USE OF THE SERVICES AND ILLUMINATE CONTENT IS AT YOUR SOLE DISCRETION AND RISK. THE SERVICES AND ILLUMINATE CONTENT, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND.
ILLUMINATE AND ITS LICENSORS AND AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE SERVICES AND ILLUMINATE CONTENT, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
WE DO NOT CONTROL, ENDORSE OR TAKE RESPONSIBILITY FOR ANY USER CONTENT OR THIRD-PARTY CONTENT AVAILABLE ON OR LINKED TO BY OUR SERVICES. ILLUMINATE MAKES NO WARRANTY, REPRESENTATION OR GUARANTEE WITH RESPECT TO PRODUCTS AND SERVICES OFFERED BY PRACTICE USERS, AND ILLUMINATE SPECIFICALLY DISCLAIMS ANY WARRANTY, REPRESENTATION OR GUARANTEE WITH RESPECT TO THE QUALITY, SAFETY, LEGALITY OR OTHER CHARACTERISTICS OF SUCH PRODUCTS AND SERVICES, OR WITH RESPECT TO THE CONDUCT OF ANY PRACTICE USER IN CONNECTION WITH SUCH SERVICES.
WE MAKE NO REPRESENTATIONS CONCERNING, AND DO NOT GUARANTEE, (A) THE SECURITY, ACCURACY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY ILLUMINATE CONTENT OR ITS APPLICABILITY TO YOUR INDIVIDUAL CIRCUMSTANCES, OR (B) THAT THE SERVICES WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED. OUR SERVICES AND ILLUMINATE CONTENT ARE DEVELOPED FOR USE IN THE UNITED STATES AND ILLUMINATE AND ITS LICENSORS AND AFFILIATES MAKE NO REPRESENTATION OR WARRANTY CONCERNING THE SERVICES OR ILLUMINATE CONTENT WHEN THEY ARE USED IN ANY OTHER COUNTRY.
NO ADVICE OR INFORMATION PROVIDED TO YOU BY ILLUMINATE WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THESE TERMS. SOME JURISDICTIONS DO NOT PERMIT US TO EXCLUDE WARRANTIES IN THESE WAYS, SO IT IS POSSIBLE THAT THESE EXCLUSIONS WILL NOT APPLY TO OUR AGREEMENT WITH YOU. IN SUCH EVENT THE EXCLUSIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
18. Limitation of Liability.
IN NO EVENT WILL ILLUMINATE, ILLUMINATE’S LICENSORS, AFFILIATES, AND OUR RESPECTIVE OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS AND REPRESENTATIVES, (COLLECTIVELY, “ILLUMINATE PARTIES”) BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF DATA OR LOST PROFITS, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON INFORMATION OBTAINED THROUGH THE SERVICES OR FROM THE CONDUCT OF YOU OR ANYONE ELSE (INCLUDING BUT NOT LIMITED TO BODILY INJURY, DEATH OR PROPERTY DAMAGE), WHETHER ONLINE OR OFFLINE, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES, OR THE ILLUMINATE CONTENT, WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT ILLUMINATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. IF YOU ARE DISSATISFIED WITH THE SERVICES, THE ILLUMINATE CONTENT, OR THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. IF THE FOREGOING IS NOT ENFORCEABLE AGAINST YOU, IN NO EVENT WILL THE CUMULATIVE LIABILITY OF THE ILLUMINATE PARTIES TO YOU, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF (I) THE AGGREGATE AMOUNT YOU PAID ILLUMINATE TO ACCESS OR USE THE SERVICES IN THE MOST RECENT TWELVE-MONTH PERIOD, OR (II) $50.
IN NO EVENT WILL THE ILLUMINATE PARTIES BE LIABLE FOR THE DISCLOSURE OF YOUR CONFIDENTIAL INFORMATION BY A PRACTICE USER FROM WHOM YOU RECEIVE HEALTH CARE SERVICES. ILLUMINATE IS NOT LIABLE TO ANY PERSON OR USER FOR ANY HARM CAUSED BY THE NEGLIGENCE OR MISCONDUCT OF A PRACTICE USER PROVIDING HEALTH CARE SERVICES.
SOME JURISDICTIONS DO NOT PERMIT US TO LIMIT OUR LIABILITY IN THESE WAYS, SO IT IS POSSIBLE THAT THESE LIMITATIONS WILL NOT APPLY TO OUR AGREEMENT WITH YOU. IN SUCH EVENT THE LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
You will indemnify, defend, and hold harmless the Illuminate Parties from and against any and all claims, causes of action, demands, liabilities, losses, costs or expenses (including, but not limited to, reasonable attorneys’ fees and expenses) arising out of or relating to any of the following matters:
19.1. your access to or use of the Services, or the Illuminate Content;
19.2. your User Content;
19.3. your violation of any of the provisions of these Terms;
19.4. any activity related to your registration by you or any other person accessing the Services through your Account, including, without limitation, negligent or wrongful conduct;
19.5. your conduct in connection with our Services; or
19.6. your violation of any third party right, including, without limitation, any intellectual property right, publicity, confidentiality, property or privacy right.
Illuminate reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
To the fullest extent permitted by applicable law, you release Illuminate and the other Illuminate Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE ANY RIGHTS YOU MAY HAVE UNDER CALIFORNIA CIVIL CODE § 1542 AS WELL AS ANY OTHER STATUTE OR COMMON LAW PRINCIPLES THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.
21. Dispute Resolution; Binding Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH ILLUMINATE AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
21.1. Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Section 10 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Illuminate agree (a) to waive your and Illuminate’s respective rights to have any and all Disputes arising from or related to these Terms, or the Services, resolved in a court, and (b) to waive your and Illuminate’s respective rights to a jury trial. Instead, you and Illuminate agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
21.2. No Class Arbitrations, Class Actions or Representative Actions
You and Illuminate agree that any Dispute arising out of or related to these Terms or the Services is personal to you and Illuminate, and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Illuminate agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Illuminate agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals. The arbitrator does not have the power to vary these class action waiver provisions.
21.3. Federal Arbitration Act
You and Illuminate agree that these Terms affect interstate commerce and that the enforceability of this Section 21 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
21.4. Notice; Informal Dispute Resolution
You and Illuminate agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Illuminate shall be sent by certified mail or courier to 12400 N Meridian St suite 150, Carmel, IN 46032. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Illuminate Account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with Section 5, and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Illuminate cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Illuminate may, as appropriate and in accordance with this Section 21, commence an arbitration proceeding or, to the extent specifically provided for in Section 21.1, file a claim in court.
EXCEPT FOR DISPUTES ARISING OUT OF OR RELATED TO A VIOLATION OF SECTION 10 OR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND ILLUMINATE AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR ILLUMINATE WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND ILLUMINATE WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and Illuminate agree that (a) any arbitration will occur in the State of Indiana, Cook County, or in the county in which you reside, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”), which are hereby incorporated by reference, and (c) that the state or federal courts of the State of Indiana and the United States, respectively, sitting in the State of Indiana, USA County, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
21.6. Authority of Arbitrator
As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. Notwithstanding any other provision of this Section 21, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained in this Section 21, are to be decided only by a court of competent jurisdiction, and not by the arbitrator.
21.7. Rules of JAMS
The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of JAMS, or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
If any term, clause or provision of this Section 21 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 21 will remain valid and enforceable. Further, the waivers set forth in Section 21.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
21.9. Opt-Out Right
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted these Terms by writing to: [firstname.lastname@example.org]. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 21.
22. Governing Law; Venue.
These Terms and our relationship with you will be governed by the laws of the State of Indiana, excluding its choice of laws rules. You and Illuminate each irrevocably agrees that any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved on an individual basis exclusively in the U.S. District Court for the Southern County District of Indiana, or the state courts located in Hamilton County, Indiana. You and Illuminate each irrevocably consents to the personal jurisdiction of these courts and waives any and all objections to the exercise of jurisdiction by these courts and to this venue. Notwithstanding the foregoing, however, you and Illuminate agree that Illuminate may commence and maintain an action or proceeding seeking injunctive or other equitable relief in any court of competent jurisdiction. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
The Services may contain typographical errors or other inaccuracies and may not be complete or current. Illuminate reserves the right, but does not have the obligation, to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice to you. Illuminate may refuse to provide Services that are based on inaccurate or erroneous information on the Services, including, without limitation, incorrect or out-of-date information regarding pricing, payment terms, or for any other lawful reason.
These Terms, along with any additional terms and conditions incorporated herein, constitute the entire agreement between you and us relating to our Services and the Illuminate Content, replacing any prior or contemporaneous agreements, whether written or oral, unless you have signed a separate written agreement with us relating to our Services or the Illuminate Content. If there is any conflict between the Terms and a separate signed written agreement between you and us relating to our Services or the Illuminate Content, the signed written agreement will control.
We reserve the right to change our Terms at any time. Any changes that we make will become a part of our agreement with you when they are posted to our Services. Your continued use of our Services will constitute your agreement to the changes we have made. The last date these Terms were revised is set forth at the top of these Terms.
The failure by you or us to enforce any provision of the Terms will not constitute a waiver. If any court of law, having the jurisdiction to decide the matter, rules that any provision of the Terms is invalid or unenforceable, then the invalid or unenforceable provision will be removed from the Terms or reformed by the court and given effect so as to best accomplish the essential purpose of the invalid or unenforceable provision, and all of the other provisions of the Terms will continue to be valid and enforceable. Nothing contained in these Terms will limit the ability of a party to seek an injunction or other equitable relief without posting any bond. The titles of the Sections of these Terms are for convenience only and will have no legal or contractual effect.
24. Contacting Us.
We encourage you to contact us at [email@example.com] if you have any questions concerning our Terms.
APPLE DEVICE ADDITIONAL TERMS
If you access the Apps via a mobile device or tablet branded by Apple, Inc. (“Apple”) and running Apple’s iOS (an “Apple Device”), the following terms (“Apple Device Additional Terms”) are hereby made part of these Terms:
- Conflicting Terms. If these Apple Device Additional Terms conflict with any other provision of these Terms, then the Apple Device Additional Terms shall control with respect to access and use of the Services via an Apple Device.
- Agreement with Illuminate, Not Apple. You acknowledge that these Terms are an agreement between Illuminate and you, and not with Apple. Illuminate, not Apple, is solely responsible for any App you access via your Apple Device (“iOS App”) and the content thereof. If these Terms are less restrictive with respect to an iOS App or otherwise conflict with, the Apple App Store Terms of Service (the “App Store Terms of Service”), the App Store Terms of Service shall apply to the extent of any conflict.
- Scope of License. The license granted to use an iOS App is limited to a non-transferable license to use the App on an Apple Device that you own or control and as permitted by the usage rules set forth in the App Store Terms of Service.
- Maintenance and Support. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to any iOS App. If Illuminate decides (in its sole discretion) to provide support and maintenance services for an iOS App, Illuminate is solely responsible for providing such services.
- Warranty. In the event of any failure of the an iOS App to conform to any applicable warranty provided by Illuminate in these Terms, you may notify Apple and Apple will refund the purchase price for the iOS App (if any) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS App and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty is Illuminate’s sole responsibility. Notwithstanding the foregoing, Illuminate is not obligated to provide any warranty with respect to an iOS App and you acknowledge and agree that this paragraph will not have any effect on the warranty disclaimers provided in these Terms.
- Product Claims. You hereby acknowledge that Illuminate, not Apple, is responsible for addressing your or any third-party claims relating to an iOS App and/or use of an iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that an iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Note that, pursuant to the limitation of liability provision set forth in these Terms, these Terms will not limit Illuminate’s liability beyond what is permitted by applicable law.
- Intellectual Property Rights. You acknowledge that, in the event of any third party claim that an iOS or your possession and use (in accordance with these Terms) of an iOS App infringes that third party’s intellectual property rights, Illuminate, not Apple, is solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- Legal Compliance. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- Third Party Beneficiary. You hereby acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms with respect to any iOS App, and that, upon your acceptance of these Terms, Apple has the right (and deemed to have accepted the right) to enforce the Terms against you with respect to the iOS App as a third party beneficiary thereof.
Questions or Complaints. Please address your questions, complaints or claims with respect to an iOS App to Illuminate at (312) 605-2390 or [firstname.lastname@example.org]. Illuminate’s principal offices are located at 12400 N Meridian St suite 150, Carmel, IN 46032.