Last Updated Date: February, 2016
You acknowledge and agree that, by accessing or using the Agewize Services, or by downloading, uploading or posting any content from or on the Site or through the Agewize Services, you are indicating that you have read, and that you understand and agree to be bound by, these Terms, whether or not you have registered via the Site. If you do not agree to these Terms, then you have no right to access or use the Site or Agewize Services.
NO MEDICAL ADVICE
If you are having a medical emergency, dial 911 immediately.
When you register with us for access to the Agewize Services and successfully complete the account registration process you will become a “Member” of the Agewize Service. As a Member, you will have the opportunity to create one or more care profiles (“Profiles”) and to add information, data, and images to your Profile(s) (“Profile Content”). A Profile may relate to you or it may relate to your child, parent or other loved one. As a Member, you will have the opportunity to invite third-party caregivers (“Caregiver”) to access the Profiles that you create. If you elect to invite a Caregiver to access your Profile(s), that Caregiver will receive an invitation to register with the Agewize Services and will need to complete the account registration process to become a Member. In addition, any Caregiver that you invite to access your Profile(s) will have full access to all Profile Content within your Profile(s) as well as the ability to add, delete, distribute, download and edit the same. Because of the sensitive and private nature of your healthcare and the healthcare of those loved ones on whose behalf you may be creating a Profile, we recommend that you protect the private and sensitive information contained within your Profile(s) and consider carefully whether to permit any Caregiver to access your Profiles. All Members are responsible for monitoring the Profile Content uploaded or added to their Profiles, whether uploaded by the Member, by a Caregiver or by other third parties.
Please note that you, and not Agewize, are responsible for maintaining and protecting all Profile Content. Agewize will not be liable to you for any loss or corruption of your Profile Content, or for any costs or expenses associated with backing up or restoring any of your Profile Content.
Certain areas of the Site (and your access to or use of certain aspects of the Agewize Services) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions in order to obtain access to or use of that Site area or Agewize Service. Any additional terms will be made available to you at the time you access that applicable Site area or Agewize Service. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site or a particular Agewize Services, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site or particular Agewize Services, as applicable.
Agewize reserves the right, at its sole discretion, to modify, discontinue or terminate the Agewize Services or to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post the modified Terms and alert you to the modified Terms on the Site or otherwise provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms. By continuing to access or use the Agewize Services after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site and Agewize Services.
The Site and Agewize Services are intended solely for persons who are 13 or older. Any access to or use of the Agewize Services by anyone under 13 is expressly prohibited. By accessing or using the Agewize Services you represent and warrant that you are 13 or older.
In order to access the Agewize Services, including to (i) create and manage a Profile and (ii) post any Profile Content through the Agewize Services, you must register to create an account (“Account”) and become a Member. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Agewize reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You will be asked to create a password when you create your Account. Agewize does not have access to your passwords and if you forget your password you will be asked to create a new one. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify Agewize if you become aware of any unauthorized use of your Account.
The Site, Agewize Services and the news and other content provided by Agewize through the same, including the trademarks, trade dress and copyrightable text (collectively, the “Agewize Content”), are protected by copyright, trademark, and other laws of the United States and foreign countries and are the proprietary designations of Agewize. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties. You acknowledge and agree that the Site, Agewize Services and Agewize Content, including all associated intellectual property rights, are the exclusive property of Agewize and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Agewize Services or Agewize Content.
LICENSE GRANTED BY MEMBER
LICENSES GRANTED BY AGEWIZE TO AGEWIZE CONTENT AND MEMBER CONTENT
Subject to your compliance with the terms and conditions of these Terms, Agewize grants you a limited, non-exclusive, non-transferable license to view, download and print any Agewize Content solely for your personal and non-commercial purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, download, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site, Agewize Services or Agewize Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Agewize or its licensors, except for the licenses and rights expressly granted in these Terms. Any misuse of the Site, Agewize Services or Agewize Content available via the same may be pursued by Agewize to the fullest extent permitted by law.
In addition, if you are invited as a Caregiver to receive access to one or more Profile(s) by another Member(s) subject to your compliance with the terms and conditions of these Terms, Agewize grants you a limited, non-exclusive, non-transferable license to access and use the Profile Content to which you are granted access by another Member. You have no right to sublicense the license rights granted in this section. Unless otherwise agreed between you and the Member granting you access to such Profile Content, all Profile Content is deemed to be confidential and you may not publicly disclose, display, distribute, transmit, stream, broadcast or otherwise use or exploit any Profile Content for any purpose other than the lawful provision and assistance of the management of the personal health care of the individual to whom the Profile Content relates.
From time to time, we may present you with offers or promotions we believe to be helpful or relevant, which may be from us at Agewize or they may be from third parties. Certain of these offers may require you to share or enter additional information about you or your loved one. You are responsible for managing the information you choose to share. Agewize is providing the platform through which these services can be coordinated and managed, and although we do our best to select the highest quality third party partners and providers, we are not responsible for the choices you make to share your private information, or the accuracy or quality of such third party services. In that instance the Agewize Services are only a venue for you to access those third party services and Agewize is not a party to, nor are we otherwise involved in any transactions entered into via or facilitated by the Agewize Services. Furthermore, Agewize is not liable or responsible for any dispute that arises between you and any third party.
In addition, Agewize will do its best to enable you to use the Agewize Service as a singular console through which these third party services may be managed, including facilitating the delivery and receipt of communications between you and your healthcare providers, from pharmacies to physician’s offices. We cannot guarantee that we can or will be able to maintain our relationship with any particular third party. We also are not responsible for any of the service levels, availability or quality of any such connections with third parties, and disclaim any responsibility for errors or miscommunication with the same. To the extent providing other services requires actions on your behalf, you consent to appointing Agewize as your agent as reasonably needed to facilitate those services.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Agewize Services (“Feedback”). You may submit Feedback by emailing us at firstname.lastname@example.org, or via the Help and Feedback link on the Site. You acknowledge and agree that if you submit any Feedback to us, you hereby grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose without any compensation to you of any kind.
You agree not to do any of the following:
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation;
Post, upload, publish, submit or transmit any Profile Content that: (i) infringes, misappropriates or violates a third party’s privacy or any rights of publicity, or any patent, copyright, trademark, trade secret, moral rights or other intellectual property rights; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances; Use, display, mirror or frame the Site, or any individual element within the Agewize Services or Agewize Content, or Agewize's name, any Agewize trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Agewize's express written consent;
Access, tamper with, or use restricted areas of the Site, Agewize's computer systems, or the technical delivery systems of Agewize's providers; Attempt to probe, scan, or test the vulnerability of any Agewize system or network or breach any security or authentication measures; Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Agewize or any of Agewize's providers or any other third party (including another user) to protect the Site, Agewize Services, Agewize Content or Profile Content; Attempt to access or search the Site, Agewize Services or Agewize Content or download Agewize Content or Profile Content from the Agewize Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Agewize or other generally available third party web browsers;
Use the Agewize Services or Site to send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Use any meta tags or other hidden text or metadata utilizing a Agewize trademark, logo URL or product name without Agewize's express written consent; Use the Site, Agewize Services, Agewize Content or Profile Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms; Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site or Agewize Services to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site or Agewize Services;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site or Agewize Services; or Encourage or enable any other individual to do any of the foregoing.
Agewize will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Agewize may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms.
You acknowledge that Agewize has no obligation to monitor your access to or use of the Site or Agewize Services or to review or edit any Profile Content, but has the right to do so for the purpose of operating the Site and Agewize Services, to ensure your compliance with these Terms, and to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.
Agewize reserves the right, at any time and without prior notice, to remove or disable access to any Profile Content that Agewize, at its sole discretion, considers to be in violation of these Terms or otherwise harmful to the Site or Agewize Services.
The Site may contain links to third-party websites or resources. You acknowledge and agree that Agewize is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Agewize of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the content, products, or services on or available from such websites or resources.
TERMINATION AND ACCOUNT CANCELLATION
If you breach any of these Terms, Agewize will have the right to suspend or disable your Account or terminate these Terms and disable access to your Profiles that those Profiles to which you have been permitted access by other Members, at its sole discretion and without prior notice to you. Agewize reserves the right to revoke your access to and use of the Site and Agewize Services at any time, with or without cause. You may cancel your Account at any time by sending an email to email@example.com.
You warrant and represent to Agewize that your use of the Agewize Services, whether as a Profile-creator or as a Caregiver, is solely for lawful purposes to facilitate the care of the individual that is the subject of the Profile. Neither the Agewize Services, nor the Site, nor any Agewize Content, nor any Profile Content may be used in any instance for any unlawful purpose.
The Site, Agewize Services and Agewize Content are provided “AS IS”, without warranty of any kind, either express or implied. Without limiting the foregoing, Agewize explicitly disclaims any warranties of merchantability, fitness for a particular purpose, quiet enjoyment or non- infringement, and any warranties arising out of course of dealing or usage of trade. Agewize makes no warranty that the Site, Agewize Services or Agewize Content will meet your requirements or be available on an uninterrupted, secure, or error-free basis. Agewize makes no warranty regarding the quality of any services or Agewize Content available from or obtained through the Agewize Services or the accuracy, timeliness, truthfulness, completeness or reliability of any Agewize Content or Profile Content obtained through the Agewize Services. Profile Content is submitted solely by Members and Agewize has no responsibility or liability for the truthfulness or accuracy of the same.
No advice or information, whether oral or written, obtained from Agewize or through the Site or Agewize Services, will create any warranty not expressly made herein.
You agree to defend, indemnify, and hold harmless Agewize, its officers, directors, employees and agents, from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Site, Agewize Services, any Agewize Content or any Profile Content (whether or not it is a Profile you created or otherwise), (ii) any use of our Site or Agewize Services for any unlawful or inappropriate conduct, or (iii) any act or omission by you that constitutes an actual or alleged violation of these Terms.
LIMITATION OF LIABILITY
You've acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Site and Agewize Service remains with you. Neither Agewize nor any other person or entity involved in creating, producing, or delivering the Site or Agewize Services will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with these Terms or from the use of or inability to use the Site or Agewize Services or the inability to use or access a Profile or any specific Profile Content, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Agewize has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.
In no event will Agewize's aggregate liability arising out of or in connection with these Terms or from the use of or inability to use the Site or Agewize Services exceed the amounts you have paid to Agewize for use of the same, if you have made any payments to Agewize for use of the same or one hundred dollars ($100), whichever is greater. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Agewize and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you.
CONTROLLING LAW AND JURISDICTION
These Terms and any action related thereto will be governed by the laws of the State of Vermont without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights, as contemplated below in “Dispute Resolution” will be the state and federal courts located in Vermont and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
These Terms constitute the entire and exclusive understanding and agreement between Agewize and you regarding the Site and Agewize Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Agewize and you regarding the Site and Agewize Services. In the event that you have elected to access restricted portions of the Site or use additional Agewize Services, which are subject to additional terms and conditions, any additional terms and conditions applicable to that portion of the Site or additional Agewize Service are expressly included within these Terms as well.
You may not assign or transfer these Terms, by operation of law or otherwise, without Agewize's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Agewize may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Agewize: (i) via email (in each case to the address that you provide); or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
You and Agewize agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Agewize Services (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Agewize are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Agewize otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available from their web site or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Vermont and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and Agewize otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Agewize submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Agewize will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Agewize will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). Changes. Notwithstanding the provisions of the “Modification” section above, if Agewize changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of Agewize's email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Agewize in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
The failure of Agewize to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Agewize. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
If you have any questions about these Terms, please contact Agewize at:
157 Columbus Ave New York, NY 10023