Terms of Service
Effective as of September 10, 2010
Updated as of December 15, 2014
IMPORTANT – PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING OUR SERVICES (DEFINED BELOW), AS USE OF OUR SERVICES IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH BELOW.
Welcome to ABPathfinder! The www.abpathfinder.com website, the abpathfinder.net application, any mobile application, any derivative website or application on which these Terms are posted (collectively, the “Site”) are owned and operated by ABPathfinder, Inc., a Delaware corporation (“ABPathfinder,” “us,” “our,” “we”). These Terms of Service (“Terms” or “Agreement”) govern your use of our Site and any Content (defined below), Widgets (defined below), or other products or services that are offered or provided through our website(s) or application(s) (collectively, the “Services”). If you purport to be the agent of, represent, or otherwise act on behalf of an entity or any other person, references to “you” or “your” shall include such entity or person in addition to you, and your acceptance of these Terms shall constitute acceptance on behalf of such entity or person. You should carefully read these Terms.
Please keep in mind that we may change, modify, add, or remove portions of these Terms at any time by posting changes to this page. If you have previously registered an account, we will attempt to notify you of any changes at the email address you provided to us, but are not obligated to do so. You understand that you have the affirmative obligation to check these Terms for changes from time to time, and you agree to periodically review these Terms for such changes. The continued use of our Services following the posting of changes to these Terms will constitute your acceptance of these changes. The most current version of these Terms can be reviewed at www.abpathfinder.com/terms-of-service.
When you agree to these Terms, ABPathfinder grants you a limited, nonexclusive, nonassignable, nontransferable license to access and use our Services and, if applicable, any Subscription (defined below). This license is limited to the identified number of authorized accounts, for your noncommercial, personal use or, if applicable, the internal business needs of the entity you represent, subject to your agreement to, compliance with, and satisfaction of these Terms and, if applicable, during the term of any Subscription. We reserve all rights not expressly granted by these Terms. If you do not comply with these Terms, we reserve the right to revoke any license granted in these Terms, limit your access to the Services (or any part thereof), or restrict your ability to post or download Content, Widgets, or other products or services. You agree not to reproduce, duplicate, copy, distribute, transmit, sell, trade, resell, or exploit for any purpose any portion of or any information contained in our Services (or any part thereof). You may not obscure or remove any proprietary rights notices contained in or on the Content. You are solely responsible for providing, maintaining and ensuring the compatibility of all hardware, software, electrical, and other physical requirements necessary for your access to and use of our Services (or any part thereof). If you elect to receive any Subscription, you acknowledge that any and all associated Services are purchased on a subscription basis. We will use commercially reasonable efforts to provide you access to such Services pursuant to these Terms. We may provide standard support services for the Services purchased by you at no additional charge.
As used in these Terms, references to “post” or “posting” shall refer to any manner of posting, transmitting, uploading, providing, making available or otherwise transferring any Content, material, or information.
You shall have the sole responsibility for acquiring, installing, and maintaining the technology environment and equipment necessary to properly access, operate, and utilize the Services, including, without limitation, PCs, tablets and/or electronic devices, operating systems, servers, Internet access, LANs, and WANs, for any communications or other costs incurred, and for any expenses relating to the foregoing. You shall be solely responsible for determining the suitability of the Services for your operations and whether the Services will achieve the results you desire. You shall be solely responsible for selecting and training adequate personnel with the requisite experience necessary to operate your systems and who are familiar with your records associated with the Services. You shall establish adequate operational back-up systems and procedures to ensure recovery and continuity of systems and operations in the event of a failure. You shall be responsible for ensuring the accuracy of any User Content (defined below) input into the Services, ensuring and confirming the accuracy of such User Content, associated Content, or any other data or results generated, created, or output by the Services prior to use, and undertaking procedures to test, identify, and correct any errors or omissions relating to the foregoing. You shall limit use of and access to the Services solely to those users whose duties require such use and access and shall undertake best efforts to ensure that our confidential information and the Intellectual Property Rights (defined below) are kept secure.
You may not use our Services if you are a direct competitor of ABPathfinder, except with our prior written consent. In addition, you may not access our Services for purposes of monitoring their availability, performance, and/or functionality, or for any other benchmarking or competitive purposes.
ABPathfinder may conduct audits to ensure that you and your Users (defined below) are in compliance with this Agreement. Such audits may be conducted through remote monitoring by ABPathfinder of your use of and access to the Services (or any portion thereof). If an audit reveals that your use of the Services during the period being audited exceeds the scope of your licensed use pursuant to this Agreement or an applicable order, then ABPathfinder may invoice you for all such excess use based on ABPathfinder’s prevailing rates in effect at the time the audit is completed. If such excess use exceeds ten percent (10%) of the licensed use, you shall also pay ABPathfinder’s reasonable costs of conducting the audit.
Not for Children’s Use
Our Services are not intended for use by children. You must be at least 18 years old to be eligible to use our Services. If you are not, but are between the ages of 13 and 17, you may only use our Services if your parents or legal guardians give you permission to use our Services. If you are under the age of 13, you may not use our Services. By using our Services, you represent that you are at least 18 years old or, if you are between the ages of 13 and 17, that you have obtained your parent’s or legal guardian’s consent to use our Services.
To access the Services, your organization must be registered with ABPathfinder via an ABPathfinder-generated registration form. This form will require that your organization provide certain requested information (including personal information and financial information required to enact any Subscriptions). At such time, your organization will be provided with an account and login information including a username and password to successfully complete the registration process. This account is personal to your organization, and may not be shared outside of your organization. You shall not permit anyone outside your organization to access the account. You are responsible for maintaining the confidentiality of your username and password and are fully responsible for all activities that occur under your username and password. Your may create additional associated accounts for users within your organization; however, you agree you are responsible for ensuring all users comply with the terms of this Agreement. You agree to immediately notify us if (a) your registration information changes, or (b) you learn of or have reason to suspect any unauthorized use of your account or any other breach of security. You also agree that you will provide truthful and accurate information during the registration process, including the anticipated number of Client Accounts (defined below) under your organization’s account. We may refuse to grant you a particular username for any reason, including, without limitation, if we have reason to believe that such username impersonates someone else, is protected by trademark or other proprietary rights, or is vulgar or otherwise offensive.
Intellectual Property Rights
As used herein, “Intellectual Property Rights” shall mean all intellectual property rights associated with or relating to the Services (or any portion thereof), including, without limitation, all Content, software, source code, designs, formulas, procedures, methods, apparatus, ideas, inventions, creations, improvements, modifications, derivative works, works of authorship, or other similar materials; copyrights, patents, trade secrets, trademarks, service marks, trade names, and other proprietary rights relating thereto; and any associated goodwill, on a worldwide basis. ABPathfinder reserves all Intellectual Property Rights existing in any Content included in, obtained on, or provided by our Services. Nothing herein shall be construed as conferring by implication, estoppel, or otherwise, any license or right under any Intellectual Property Rights of ABPathfinder or third parties. Unless otherwise provided herein, Content may not be copied, reproduced, republished, uploaded, downloaded, posted, transmitted, or distributed in any way without the prior written permission of ABPathfinder, except that, subject to your compliance with the Terms, ABPathfinder authorizes you to view Content to which you have access through registration and/or Subscription(s).
As between the parties, you acknowledge that ABPathfinder claims and reserves all rights and benefits afforded under federal and international copyright or other law relating to Intellectual Property Rights in the Services (or any part thereof) furnished to you (including, without limitation, any modifications, additions, or derivative works based on the Services (or any portion thereof)). This Agreement does not affect any transfer of title or other interest in or to the Services (or any portion thereof) or any other products, information, or materials, and you hereby expressly disclaims any such interest therein. We shall remain entitled to enforce our rights and other interests in the Services (or any part thereof) and any other products, information, and materials produced or disclosed in connection therewith. You shall use your best efforts to ensure that all permitted Users afforded access to the Services, beta Services, Content, and any other products, information, and materials produced or disclosed in connection therewith protect the same against unauthorized use, dissemination or disclosure. All rights not specifically granted to you hereunder are reserved by ABPathfinder. Nothing herein shall prevent ABPathfinder, our affiliates, or licensors from promoting, providing, licensing or sublicensing use of or access to the Services, or any portion or component thereof, to any third party.
Our Services may include or provide access to information, software, photos, videos, text, graphics, music, sounds, and other material or information provided by us or third parties (collectively, the “Content”) that are protected by copyrights, patents, trademarks, trade secrets, or other intellectual property laws. You understand and agree that these rights in any Content are valid and protected in all forms, media, and technologies existing now or developed in the future. For purposes of clarification, references to Content includes User Content.
“User Content” shall mean any Content posted by users via our Services except Feedback (defined below). User Content is the intellectual property of the specific users of our Services who post such User Content and, if applicable, their respective licensors. We do not claim ownership rights in such User Content. However, by posting User Content via our Services, you hereby grant us a limited, transferable, nonexclusive, worldwide, perpetual, irrevocable, royalty-free right and license to use, reproduce, modify, edit, adapt, publish, translate, display, distribute, sell, sublicense, and create derivative works and compilations incorporating such User Content. We may (but are not required to) monitor or remove User Content after it is posted via our Services except under certain limited circumstances or as required or permitted by law or otherwise in our sole discretion. If you would like us to remove your User Content from our Services, please contact us at info@ABPathfinder.com. However, please note that even if we agree to remove your User Content, it may not be completely removed or may be otherwise accessible to others in the following circumstances: (a) your User Content has been incorporated into derivative works or compilations created by us or third parties; (b) your User Content has been retained in our data backup systems or for archival purposes; (c) to the extent your User Content has been provided to or downloaded by other persons and such persons retain your User Content; or (d) to the extent we are required by law to retain such User Content.
We welcome your comments, feedback, information, or materials regarding our Services (collectively, “Feedback”). If you submit Feedback to us, please note that your Feedback shall become the property of ABPathfinder. By submitting your Feedback to us, you agree to assign, and hereby irrevocably assign to ABPathfinder, all right, title, and interest in and to the Feedback and all copyrights and other intellectual property rights embodied in such Feedback on a worldwide basis. ABPathfinder shall be free to use your Feedback on an unrestricted basis. You hereby assign and/or waive, as the case may be, any moral rights that you may have in or to the Feedback.
You may desire to use ABPathfinder’s Services for the collection and storage of confidential patient information or protected health information (“Patient Information”). State and federal laws, policies, procedures, and guidelines of any applicable health care facility, and ethical and licensure requirements of your profession may impose obligations with respect to patient confidentiality that may limit the ability of physicians, health care providers, and persons acting on their behalf, to make use of certain Content, or to transmit certain information to third parties. You represent and warrant that you will, at all times during the term of this Agreement and thereafter, comply with all laws directly or indirectly applicable to you that may now or hereafter govern the gathering, use, transmission, processing, receipt, reporting, disclosure, maintenance, and storage of the Patient Information, and use your best efforts to cause all persons or entities under your direction or control to comply with such laws. You are, at all times during the term of this Agreement and thereafter, solely responsible for obtaining and maintaining all patient and/or parental consents, if applicable, and all other legally necessary consents or permissions required or advisable to disclose, process, retrieve, transmit, and view the Patient Information you transmit, store, or receive in connection with our Services (or any part thereof) and any third party website. You agree that ABPathfinder, ABPathfinder’s licensors and licensees, and all other persons or entities involved in the operation of our Services (or any part thereof), have the right to monitor, retrieve, store, review, and use Patient Information, if applicable, in connection with the operation or use of our Services (or any part thereof) provided via our Site, and are acting on your behalf in transmitting Patient Information.
ABPATHFINDER CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR YOUR USE OR MISUSE OF USER CONTENT AND/OR PATIENT INFORMATION OR OTHER INFORMATION TRANSMITTED, MONITORED, STORED, OR RECEIVED WHILE USING OUR SERVICES (OR ANY PORTION THEREOF). WE RESERVE THE RIGHT TO AMEND OR DELETE ANY CONTENT (ALONG WITH THE RIGHT TO TERMINATE OR RESTRICT USE OF OR ACCESS TO ABPATHFINDER) THAT IN OUR SOLE DISCRETION VIOLATES ANY OF THE ABOVE. BY POSTING ANY USER CONTENT VIA OUR SITE, YOU FURTHER UNDERSTAND AND AGREE THAT YOU DO SO AT YOUR OWN RISK AND THAT WE ARE NOT RESPONSIBLE FOR THE DAMAGE AND/OR LOSS OF ANY SUCH USER CONTENT. YOU AGREE THAT ABPATHFINDER IS NOT LIABLE FOR ANY LEGAL VIOLATION CAUSED BY YOUR USE OR MISUSE OF USER CONTENT AND/OR PATIENT INFORMATION OR OTHER INFORMATION TRANSMITTED, MONITORED, STORED, OR RECEIVED WHILE USING OUR SERVICES (OR ANY PORTION THEREOF).
In addition to the Content and Services that are available to all users who visit our Site, we offer certain Content and Services on a subscription basis (“Subscription”) upon payment of applicable fees or other charges associated with the Subscriptions listed below. If you represent an entity and wish to purchase multiple Subscriptions or different combinations of Subscriptions please contact us at info@ABPathfinder.com for more information and pricing.
The price of the Subscription is based on the number of Client Accounts classified as “active” in the ABPathfinder system. On a monthly basis, ABPathfinder will conduct an audit of current Client Accounts with a status of active. All active Client Accounts will count towards your monthly invoiced amount based on the applicable pricing tier. You are solely responsible for maintaining an accurate census of clients, including the deactivation of Client Accounts when they are no longer receiving service from you. ABPathfinder has no responsibility to assist you with account maintenance.
- Administrator Account. The “Administrator” Account allows for a single user to create additional User Accounts (defined below) and Client Accounts. Users with an Administrator Account may use the related Content provided by ABPathfinder for the purposes of maintaining and managing information about the organization, including company locations, employee/therapist records, client records, therapy teams, protocols, account permissions and other information required to adequately manage the company profile. By selecting an Administrator Account, you acknowledge and agree that the user identified in the Administrator Account profile is responsible for any additional Subscriptions purchased or created by such user and any and all related Services provided by ABPathfinder. An Administrator may create multiple client profile Subscriptions (each a “Client Account”), and the Subscription fee will be based on the number of Client Accounts active in any given month. Alternatively, as discussed above, if you are a member of an organization, you may contact ABPathfinder to assist with the initial setup of the accounts.
- User Account. The “User Account” allows for a single user to access and use our Services for the purpose of using associated Content to implement therapy programs for one or more Client Accounts.
- Client Performance Account. The “Client Performance Account” is for any individual that receives therapy services from any users with a User Account and/or Administrator Account. Users may access and use our Services to monitor their performance and/or progress through therapy.
Term, Payment and Termination
The initial term of any Subscription will be on a monthly basis or annual basis, as identified on your initial registration form, and will begin on the first day that any training included in any Subscription(s) is scheduled, indicating that the Service is available for use by any user with a valid Subscription(s). Fees will be pro-rated based on the monthly amount of the Subscription(s). Thereafter, billing for the total amount of the Subscription(s) will occur on the first day of the month and will be calculated based on the number of active Client Accounts. You understand and agree that you are not entitled to any refunds for any Subscriptions for any reason.
A one-time setup fee will be charged that covers the implementation of the Services, including the creation of a customer database, data entry of any custom protocols/skillsets (up to 500 skills), and initial training of staff provided by means of remote communication for the first ninety (90) days. On-site training is available for an additional cost upon request and as quoted by ABPathfinder. Requests for training or additional setup beyond the first ninety (90) days (excluding instances where additional locations are added to the organization’s account) will be available upon request for an hourly rate from ABPathfinder.
This Agreement is effective as set forth herein and shall continue in full force until terminated. You agree that ABPathfinder, in its sole discretion, may terminate your use of our Services or any part thereof upon prior notice, and remove and discard any Content, in the event you violate these Terms. You agree that ABPathfinder may immediately suspend your account, Subscriptions(s), and your access to our Services in order to conduct an investigation in the event it believes you have violated these Terms or if it determines that you are a repeat infringer of another’s intellectual property or other rights. ABPathfinder may also, in its sole discretion and at any time, discontinue providing our Services, any part thereof, any Content or any products or services advertised thereon, with or without notice. In addition to any other method of termination or suspension provided for in this Agreement, ABPathfinder reserves the right to terminate this Agreement at any time and for any reason upon ten (10) days’ notice to you. Further, you agree that ABPathfinder shall not be liable to you or any third-party for any termination or suspension of your access to our Services or any part thereof, removal of Content or sale of any products. Except as otherwise set forth in this Agreement, you may terminate this Agreement at any time by immediately discontinuing all access to our Services and by providing notice to ABPathfinder of such discontinuance. Termination or cancellation of this Agreement shall not affect any right or relief to which ABPathfinder may be entitled at law or in equity. Upon termination of this Agreement, you shall terminate all use of our Services (or any portion thereof) and any Content provided thereby. In the event of termination, you will not be entitled to any refund of any fees or other charges, if any, paid in connection with this Agreement.
If you elect to receive a Subscription(s) on an annual basis, you may cancel the Subscription within the first ninety (90) days after your initial purchase of any Subscription(s) without penalty. After the first ninety (90) days of your purchase of any annual Subscription(s), you may cancel such Subscription upon sixty (60) days written notice to ABPathfinder and will be liable for all fees accrued during that sixty (60) day cancellation period at a rate equal to the prior month’s billing cycle for any such cancelled Subscriptions. If you choose to reinstate any previously cancelled Subscription, you acknowledge and agree that you will be responsible for all applicable reinstatement fees, including any then-current set up fees.
Subscriptions shall automatically renew for a period equal to the initial purchased term. For example, Subscriptions purchased on a monthly basis shall renew for additional monthly terms, and Subscriptions purchased on an annual basis shall renew for additional one (1) year terms unless earlier terminated in accordance with these Terms. All renewed Subscriptions shall be billed at the then-current Subscription rates based on the renewal term as determined by the subscription length.
If you choose to suspend or “hold” any Subscription(s) instead of termination of any Subscription(s), you understand and agree that you will be responsible for monthly payment in an amount equal to ABPathfinder’s then-current Subscription fee for the lowest pricing tier.
In the event that you post any User Content, provide any Feedback via our Services, or request ABPathfinder include any protocol or skillsets, you hereby make the following additional representations and warranties to ABPathfinder: (1) you are owner of such User Content, Feedback or data or otherwise have the right to grant ABPathfinder the licenses or assignments granted pursuant to this Agreement; (2) you have secured any and all consents necessary to use the User Content, Feedback, or data and to grant the foregoing licenses or assignments; (3) the User Content, Feedback, or data, or use thereof, does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and such User Content or Feedback does not contain any personally identifiable information about third parties in violation of such parties’ rights; (4) the use of any User Content, Feedback, or data will not result in harm or personal injury to any third party; and (5) all factual information contained in the User Content or Feedback is true and accurate.
You are solely responsible for any and all acts and omissions that occur under your account or password, and you agree not to engage in unacceptable use of our Services or any part thereof or any User Content, which includes, without limitation: (a) use of our Services to post, store or disseminate material or information that, is or to a reasonable person may be false, fraudulent, unlawful, harmful, tortious, abusive, obscene, pornographic, defamatory, libelous, harassing, invasive of another’s privacy, offensive, vulgar, threatening, malicious, hateful or racially, ethnically or otherwise objectionable; (b) use of our Services to post, store or disseminate Content, files, graphics, software or other material or information that actually or potentially infringes the rights of any person, including, without limitation, the copyright, trademark, patent, trade secret or other intellectual property rights, or privacy, moral or publicity rights, of any person; (c) use of our Services to interfere, disrupt or attempt to gain unauthorized access to other accounts on our Services, to restricted portion of our Services, to Content, or any other computer network or equipment; (d) use of our Services to post, store or disseminate viruses, Trojan horses or any other malicious code or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware, system or telecommunications equipment; (e) use of our Services to post, store or disseminate any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or other fraudulent schemes, or any other form of solicitation; (f) use of any manual or automated software, devices or other processes to “crawl” or “spider” any web pages contained in our Services (including, without limitation, the use of robots, bots, spiders, scrapers or any other means to extract pricing, product, service or other data from our Services); (g) use of our Services to gain competitive intelligence about ABPathfinder, our Services, or any product or service offered in connection with our Services or to otherwise compete with ABPathfinder, our affiliates, or licensors; (h) framing or otherwise simulating the appearance or functions of our Services or any portion thereof; (i) harvesting or otherwise collecting any information about other users, including, without limitation, email addresses or other contact information of other users; or (j) use of our Services to engage in any activity that, as determined by ABPathfinder in our sole discretion, may intentionally or unintentionally violate these Terms, violate any applicable laws or regulations, or conflict with the spirit or intent of these Terms.
Our Services, and any products or services provided in connection with our Services, are available are for informational and educational purposes and are not a substitute for the professional judgment of a health care professional in diagnosing and treating patients and developing therapy plans. Unless authorized and permitted by law, you may not advise, offer diagnosis, or otherwise provide treatment to users of our Services, including users with Client Subscriptions. Neither the Content nor any other products or services offered in connection with our Services are intended to be the sole basis for any treatment or therapy. By accessing this information, you assume full responsibility for the use of the information and agree that ABPathfinder is not responsible or liable for any claim, loss, or damage arising from the use of the information. ABPathfinder does not recommend or endorse any specific treatment plans, therapy programs, drugs, tests, physicians, products, procedures, opinions, “off-label” drug uses, or other information that may be mentioned or included in our Services. Your reliance upon the Content obtained or used by you is solely at your own risk.
We use reasonable efforts to maintain our Services, but we are not responsible for any defects or failures associated with our Services, any part thereof, any Content posted using our Services, or any damages (such as lost profits or other consequential damages) that may result from any such defects or failures. Our Services (or a portion thereof) may be inaccessible or inoperable for any reason, including, without limitation: (a) equipment malfunctions, (b) periodic maintenance procedures or repairs which ABPathfinder may undertake from time to time, or (c) causes beyond the control of ABPathfinder or which are not foreseeable by ABPathfinder.
We do not control the User Content posted by other users, nor do we have any obligation to monitor such User Content for any purpose. Despite the fact that we have no monitoring obligations, we reserve the right in our sole discretion to remove any and all material that we find is actually or potentially inappropriate, offensive, illegal or harmful in any respect or which may otherwise violate these Terms. Because the User Content offered via our Services is provided by other users, and because we do not monitor or exercise control over the User Content, we do not make any warranties or representations regarding any of the User Content offered via our Services or the quality thereof. We do not necessarily approve, endorse, sanction, encourage, verify or agree with any message posted by our users or otherwise embodied in the Content. You understand that by using our Services (or any portion thereof), you may be exposed to Content that may be offensive, indecent, vulgar, defamatory or otherwise objectionable, and that in no way shall ABPathfinder be liable under any theory for such exposure.
ABPathfinder is not a backup service for storing User Content, and ABPathfinder shall have no liability regarding any loss of User Content. You are solely responsible for creating backups of any User Content you post using the Site.
PLEASE NOTE THE FOLLOWING IMPORTANT DISCLAIMERS OF WARRANTIES:
TO THE MAXIMUM EXTENT ALLOWED BY LAW, OUR SERVICES (OR ANY PART THEREOF), AND ANY PRODUCTS OR SERVICES PROVIDED IN CONNECTION WITH OUR SERVICES, ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT ALLOWED BY LAW, ABPATHFINDER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE AND NON-INFRINGEMENT) ARISING OUT OF OR RELATING TO (1) THE USE OF OR INABILITY TO USE OUR SERVICES (OR ANY PART THEREOF), AND ANY PRODUCTS OR SERVICES PROVIDED IN CONNECTION WITH OUR SERVICES; (2) RELIANCE ON OUR SERVICES (OR ANY PART THEREOF), AND ANY PRODUCTS OR SERVICES PROVIDED IN CONNECTION WITH OUR SERVICES; (3) ERRORS, INACCURACIES, OMISSIONS, DEFECTS, UNTIMELINESS, SECURITY BREACHES; (4) INFORMATION COMMUNICATED THROUGH CHAT ROOMS, BULLETIN BOARDS, MESSAGE ROOMS, OR OTHERWISE COMMUNICATED VIA OUR SERVICES (OR ANY PART THEREOF), AND ANY PRODUCTS OR SERVICES PROVIDED IN CONNECTION WITH OUR SERVICES; (5) THE COMPLIANCE WITH ANY LAW, RULE, REGULATION, LAW ENFORCEMENT, GOVERNMENT OFFICIALS, OR LEGAL AUTHORITY OR THE LIKE; (6) THE COMPLIANCE WITH ANY POLICY, PROCEDURE, OR GUIDELINE OF ANY APPLICABLE HEALTH CARE FACILITY OR HEALTHCARE PROVIDER; OR (7) ANY OTHER FAILURE TO PERFORM BY ABPATHFINDER OR ABPATHFINDER’S CONTENT PROVIDERS. THE FOREGOING SHALL APPLY REGARDLESS OF WHETHER ABPATHFINDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITATION, ABPATHFINDER MAKES NO WARRANTY THAT OUR SERVICES, AND ANY PRODUCTS OR SERVICES PROVIDED IN CONNECTION WITH OUR SERVICES, WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, THAT USE OF THE FOREGOING WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE FOREGOING OR ANY INFORMATION FOUND THEREON WILL BE ACCURATE OR RELIABLE, OR THAT THE QUALITY OF ANY CONTENT, PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED THROUGH OUR SERVICES WILL MEET YOUR EXPECTATIONS.
ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICES IS DONE AT YOUR SOLE RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU THROUGH OUR SERVICES OR ANY PRODUCT SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THESE TERMS.
Limitation of Liability
TO THE MAXIMUM EXTENT ALLOWED BY LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT ABPATHFINDER SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ABPATHFINDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (A) THE USE OR THE INABILITY TO USE OUR SERVICES (OR ANY PART THEREOF), AND ANY PRODUCTS OR SERVICES PROVIDED IN CONNECTION WITH OUR SERVICES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS AND SERVICES RESULTING FROM ANY CONTENT, PRODUCTS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM OUR SERVICES OR OTHERWISE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; OR (D) ANY OTHER MATTER RELATING TO OUR SERVICES (OR ANY PART THEREOF) OR THE PURCHASE OF ANY OF ABPATHFINDER’S PRODUCTS OR SERVICES, INCLUDING THE PURCHASE OF ANY SUBSCRIPTION. IF YOU ARE DISSATISFIED WITH OUR SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO DISCONTINUE USE OF OUR SERVICES AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS. TO THE MAXIMUM EXTENT ALLOWED BY LAW, IN NO EVENT SHALL ABPATHFINDER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING OUR SERVICES, SELLING OR PURCHASING ANY CONTENT OR PURCHASING ABPATHFINDER’S PRODUCTS OR SERVICES OR ANY AMOUNT RETAINED BY ABPATHFINDER FOR PROVIDING THE SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold harmless ABPathfinder, its officers, members, directors, employees and agents from and against any and all claims, liabilities, damages, losses or expenses, including attorneys’ fees and costs and expenses, arising out of or in any way connected with: (a) your access to or use of our Services or any part thereof; (b) any User Content you post via our Services; (c) a breach or alleged breach by you of any of your representations, warranties, covenants or obligations under this Agreement; (d) infringement or misappropriation of any intellectual property, confidentiality, or other rights of ABPathfinder or third parties by you, (e) any negligence or willful misconduct by you; (f) any other claim related to your performance under this Agreement; (g) your use of any Content, services, or products provided by ABPathfinder; or (h) your violation or alleged violation of any applicable laws, rules, regulations, or policies, procedures, or guidelines of any applicable health care or treatment facility.
We respect the intellectual property rights of others and ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please notify us and include the instructions in our Copyright Policy, located at www.abpathfinder.com/copyright-policy. The terms and conditions of such Copyright Policy are hereby incorporated into these Terms.
Governing Law and Miscellaneous Terms
The parties and their respective personnel are and shall be independent contractors, and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
You acknowledge and agree that any expenses that you incur in furtherance of this Agreement are voluntary in nature and are made with the knowledge that this Agreement may be terminated as provided herein. You shall not make a claim against ABPathfinder, and ABPathfinder shall not be liable with respect to the recoupment of any expenditures or investment made by you in anticipation of the continuation of this Agreement beyond the term hereof.
The parties agree that breach of the provisions of this Agreement would cause irreparable harm and significant injury to ABPathfinder which would be both difficult to ascertain and which would not be compensable by damages alone. As such, the parties agree that ABPathfinder has the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance or other equitable relief without prejudice to any other rights and remedies ABPathfinder may have for your breach of this Agreement.
The validity and effect of these Terms shall be governed by, and construed and enforced in accordance with the laws of Delaware, without regard to its conflicts or choice of laws principles. ANY SUIT, ACTION OR PROCEEDING CONCERNING OR RELATING TO OUR SERVICES (OR ANY PORTION THEREOF), ITS USE, THESE TERMS, ANY SALE OR ANY OTHER PRODUCT, SERVICE, POLICY OR PROCEDURE OF ABPATHFINDER, MUST BE BROUGHT EXCLUSIVELY IN A COURT OF COMPETENT JURISDICTION IN THE STATE OR FEDERAL COURTS LOCATED IN JOHNSON COUNTY, KANSAS, AND YOU HEREBY IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURT (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING, YOU IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH YOU MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT OR IMPROPER FORUM.
If any action at law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting and construing this Agreement.
If the performance of any part of this Agreement by either party (other than payment of money) is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor dispute, act of God, telecommunications failure or any other cause beyond the control of either party, that party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such cause.
This Agreement, including any other agreements or additional terms referenced herein, constitutes the complete and exclusive statement of the Agreement between the parties with respect to our Services, and, unless otherwise expressly provided herein, it supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning our Services. If any provision of this Agreement is found unlawful or unenforceable in any respect, the court shall reform such provision so as to render it enforceable or, if it is not possible to reform such provision so as to make it enforceable, then delete such provision. As so reformed or modified, the court shall fully enforce this Agreement. The provisions of this Agreement that by their content are intended to survive the expiration or termination of this Agreement, including, without limitation, provisions governing ownership and use of intellectual property, representations, disclaimers, warranties, liability, indemnification, governing law, jurisdiction, venue, remedies, rights after termination and interpretation of this Agreement, will survive the expiration or termination of this Agreement for their full statutory period.
The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement.
ABPathfinder makes no representation that our Services, Content or other material or information provided through our Services is appropriate to or available in locations outside of the United States. You may not use our Services or export Content in violation of United States export laws, regulations or restrictions. If you access our Services from outside of the United States, you are responsible for compliance with all applicable laws.