NexHealth Inc. Terms of Service

Last Modified: February 12, 2021

Acceptance of the Terms of Service


NexHealth, Inc. ("Company", “we”, or “us”) develops, operates and distributes certain software applications (Apps), which include web apps, hosted applications and applications for mobile devices. The Apps, together with the services for communications, coordination and management by patients and healthcare professionals regarding medical conditions, and the data collection, storage, analysis and reporting tools, functions and services, that are provided via the Apps, are collectively referred to as the “Service” or “Services”. The Service is offered and provided subject to acceptance without modification of all of the terms and conditions contained herein (“Terms of Service”). The Terms of Service shall be deemed to include all other operating rules, conditions, policies and procedures that are referred to herein or that may otherwise be published by Company, from time to time, on their website or via any App (collectively, Policies), including without limitation, the Privacy Policy.


These Terms of Service are entered into by and between You and the Company. The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, "Terms of Service"), govern your access to and use of our Services whether as a guest or a registered user.

Please read the Terms of Service carefully before you start to use the Service. By using the Service or by clicking to accept or agree to the Terms of Service when this option is made available to you, you accept and agree to be bound and abide by these Terms of Service and our Privacy Policy, found at https://www.nexhealth.com/legal/privacy, incorporated herein by reference. If you do not want to agree to these Terms of Service or the Privacy Policy, you must not access or use the Service.

This Service is offered and available to users who are 18 years of age or older and reside in the United States or any of its territories or possessions, or at least 13 years of age who have the express permission of their parent or guardian. By using this Service, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Service.

The Service is intended by Company to be made available only to individuals who are either a Clinician or Patient who has been specifically identified for onboarding and use of the Service by a Clinical Partner. As used in the Terms of Service: “Clinical Partners” are hospitals, clinics, practices or other medical groups or healthcare systems that have contracted with Company to permit use of the Service by their respective Clinicians and Patients; “Clinicians” are practitioners, patient advocates or other individuals who (as employees of or contractors to a Clinical Partner) provide healthcare services to Patients; and “Patients” are individual patients of the Clinical Partner who receive medical treatments or other healthcare services from one or more Clinicians. If you do not qualify, then you are prohibited from downloading, accessing, using and registering for the Service.


The Clinical Partner, not Company, is solely responsible for establishing the criteria and determining which of its clinicians and patients will be (and continue to be) eligible to use the Service. Without limiting the foregoing, the Clinical Partner is solely responsible for determining whether the Service will be (and continues to be) clinically appropriate and safe for each Patient. Company will comply with any instruction from a Clinical Partner to discontinue offering the Service to any of its Clinicians or Patients. In addition, Company may refuse to offer or continue offering the Service to any person and may change its eligibility criteria from time to time.


Changes to the Terms of Service

We may revise and update these Terms of Service from time to time in our sole discretion. All changes are effective immediately when we post them. However, any changes to the dispute resolution provisions set forth in Governing Law and Jurisdiction will not apply to any disputes for which the parties have actual notice on or prior to the date the change is posted on the Service.

Your continued use of the Service following the posting of revised Terms of Service means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.

Accessing the Service and Account Security

We reserve the right to withdraw or amend this Service, and any service or material we provide on the Service, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Service is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Service, or the entire Service, to users, including registered users.

You are responsible for both:

  • Making all arrangements necessary for you to have access to the Service.
  • Ensuring that all persons who access the Service through your internet connection are aware of these Terms of Service and comply with them.

To access the Service or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Service that all the information you provide on the Service is correct, current and complete. You agree that all information you provide to register with this Service or otherwise, including, but not limited to, through the use of any interactive features on the Service, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Service or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Service.


Registration

Although you may be able to visit the Company website and download Apps without registering, you will not be able to access or use any valuable aspect of the Service. To complete your application for registration, you need to be specifically identified by your Clinical Partner, who will provide you with the necessary password or other similar credential. The Service may be accessed: by visiting the Company website directly; or by using an Service that is downloaded from Company (or a Channel Partner), which then communicates with Company’s web servers.

The term “Channel Partner” means any distribution platform operator or other third party who is authorized to make Services available for distribution pursuant to arrangements with Company. Currently, the only Channel Partner is Apple Inc. (via the App Store).

The term “Business Partners” refers to and includes all Clinical Partners and Channel Partners. Regardless of how you access the Service, to ensure the integrity of the Service, you must complete an account registration process and provide Company with current, complete and accurate information, as more specifically required by then current registration procedures and operational prompts.

If some or all of your registration information has already been provided to Company by the Clinical Partner, then you will need to review and confirm, complete or correct your information. By way of illustration and not limitation, you may be required to provide the following information in order to establish your account and register for and use the Service: name, address, telephone number, e-mail address, date of birth, username, password and certain preferences and permissions.

You are required to maintain and update your registration data from time to time, to ensure that it is always current, complete and accurate. Company may refuse to accept your application to register for the Service, in its sole discretion. Upon acceptance, Company will activate the access credentials for your account.


Fees and Payments

At this time, Patients and Clinicians may access and use the Service with charge, and each of them is responsible for procuring all equipment and services needed to connect to the Service (such as, for example, mobile devices, computers, Internet services and cellular data services).


Services Are Not Healthcare Services

Company does not offer or provide any kind of medical advice, health insurance or other healthcare service, including without limitation, any counseling, testing, medication, procedure or therapy related to the avoidance, prevention, diagnosis or treatment of any acute or chronic illness, disease or condition (collectively, Healthcare Services). The Service is not a substitute for professional Healthcare Services. Always seek the advice of your physician or other qualified healthcare provider with questions regarding any medical condition, or call 911 in an emergency. The Service is intended only as a tool, which can be used to assist Patients and Clinicians in coordinating, managing and communicating about routine Healthcare Services. The Service is not intended for use in any emergency or urgent matter. As a result of its limited role as an intermediary between Patients and Clinicians, Company has no control over the appropriateness, accuracy, quality, timeliness, scope, price or risks of or associated with any Healthcare Service. Therefore, you agree to release Company from any and all claims, demands, damages and liabilities, of any type and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with Healthcare Services (including any injuries or disability arising therefrom). To the extent that any Healthcare Services are offered to any Patient, they are provided by the applicable Clinical Partner and its affiliated Clinicians, not Company. Accordingly, Healthcare Services are not deemed to be within the scope of the Service provided by Company, and Company shall have no obligation or liability regarding Healthcare Services. Company does not recommend or endorse any specific Clinical Partner, Clinician or Healthcare Service.

HIPAA Compliance

In connection with the use of the Services, Clinical Partners, Clinicians and Patients shall comply with all applicable laws, rules, and regulations, and the rights of third parties. Company has designed the Services to support compliance with the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act and the regulations promulgated under these statutes, including without limitation, the privacy and security regulations (45 C.F.R. 160 and 164) and the transaction and code set regulations (45 C.F.R. 162) (collectively, “HIPAA”), as applicable to the Services. Company and Clinical Partners hereby agree to the form business associate agreement identified during the Company registration process (or otherwise negotiated and agreed to by the parties) (in either case, the “BAA”). The BAA is hereby incorporated by reference into this Agreement, and any breach of the BAA is subject to this Agreement.


Intellectual Property Rights

The Service and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by the Company, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.

These Terms of Service permit you to use the Service for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Service, except as follows:

  • Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
  • You may store files that are automatically cached by your Web browser for display enhancement purposes.
  • You may print or download one copy of a reasonable number of pages of the Service for your own personal, non-commercial use and not for further reproduction, publication or distribution.
  • If we provide desktop, mobile or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.

You must not:

  • Modify copies of any materials from this site.
  • Use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text.
  • Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from this site.

You must not access or use for any commercial purposes any part of the Service or any services or materials available through the Service.

If you wish to make any use of material on the Service other than that set out in this section, please address your request to: contact@nexhealth.com.

If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Service in breach of the Terms of Service, your right to use the Service will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the Service or any content on the Service is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Service not expressly permitted by these Terms of Service is a breach of these Terms of Service and may violate copyright, trademark and other laws.


Trademarks

The Company name, the terms NexHealth, and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs and slogans on this Service are the trademarks of their respective owners.


Feedback License

If you provide Company with any idea, recommendation or other suggestion regarding possible corrections, improvements or extensions related to the Service or Content (collectively, Feedback), in any form or by any means (whether through the Service, or by direct communication (e.g., e-mail) with Company or any of its officers, directors, employees, representatives, agents or Business Partners), then you: represent and warrant that the Feedback does not include your own or any third party’s confidential or proprietary information; and acknowledge and agree that Company is under no obligation of confidentiality, express or implied, with respect to the Feedback; and agree to grant and do hereby grant to Company and its affiliates and licensees a non-exclusive, transferable, perpetual, irrevocable, royalty-free, worldwide right and license to use, modify and make derivative works of the Feedback, in any manner, in any media and for any purpose, and to permit third parties to do the same.


User Rules and Conduct

The Service is provided only (a) in the case of Patients, for your personal, noncommercial use or (b) in the case of Clinicians, for your use related to providing Healthcare Services (within the scope of your duties for the applicable Clinical Partner) to Patients (whichever applies, the Authorized Use). Any unauthorized use of the Service (including without limitation, accessing any aspect of the Service for which you are not authorized, or any commercial use by you, such as, for example, reselling any App or marketing Healthcare Services) is expressly prohibited. You are solely responsible for all acts or omissions that occur under your account, username or password, including messaging conducted via the Service. As a condition of use, you hereby promise not to use the Service for any purpose that is unlawful, or that is commercial in nature (such as, for example, collecting money, or advertising or promoting any product, service, pyramid scheme or other venture) or that is prohibited by the Terms of Service, or for any other purpose not reasonably intended by Company. You agree to abide by all applicable local, state, national and international laws, regulations and rules.


Prohibited Uses

You may use the Service only for lawful purposes and in accordance with these Terms of Service. You agree not to use the Service:

  • In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
  • For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
  • To send, knowingly receive, upload, download, use or re-use any material which does not comply with the Content Standards set out in these Terms of Service.
  • To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any "junk mail," "chain letter," "spam," or any other similar solicitation.
  • To impersonate or attempt to impersonate the Company, a Company employee, another user or any other person or entity (including, without limitation, by using e-mail addresses associated with any of the foregoing).
  • To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Service, or which, as determined by us, may harm the Company or users of the Service, or expose them to liability.
  • To engage in revealing any confidential, proprietary, or other information that you are required to keep secret, including without limitation, non-public Personal Data about another individual.
  • To engage in revealing any personal information about another individual, including another person’s Personal Data or any other information that could be used to track, contact, or impersonate that person, unless such information has been provided by that person in a public communication or forum.
  • To engage in registering or creating user accounts by any automated means or under false or misleading pretenses, including by the use of a false, misleading, or disguised e-mail address.
  • To engage in harvesting, scraping, or collecting any information from the Service;
  • To engage in using scripts, bot, or other automated means that only simulates compliance with the Terms of Service or other requirements applicable to the Service.

Additionally, you agree not to:

  • Use the Service in any manner that could disable, overburden, damage, or impair the site or interfere with any other party's use of the Service, including their ability to engage in real time activities through the Service.
  • Use any robot, spider or other automatic device, process or means to access the Service for any purpose, including monitoring or copying any of the material on the Service.
  • Use any manual process to monitor or copy any of the material on the Service, or for any other purpose not expressly authorized in these Terms of Service, without our prior written consent.
  • Use any device, software or routine that interferes with the proper working of the Service.
  • Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
  • Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Service, the server on which the Service is stored, or any server, computer or database connected to the Service.
  • Attack the Service via a denial-of-service attack or a distributed denial-of-service attack.
  • Otherwise attempt to interfere with the proper working of the Service.


Service Data and Analytics

The Service collects, stores, processes and analyzes Service Data and produces Analytics. Accordingly, whenever you interact with the Service, a variety of technologies are employed to automatically or passively collect Service Data. The term “Service Data” means all data and information that are provided by you during registration and subsequent use of the Service (including messaging related to Healthcare Services), and all other data and information about you that are otherwise discerned or collected by Company based on your access and use of the Service. For clarity, Service Data includes, but is not limited to: Personal Data; browser or device type; operating system; time of day; identification of website or App page views; use of particular Service features; geographic location. The term “Analytics” means user profiles and statistics, metrics, abstractions and other analyses that are based on or derived from your use of the Service and Service Data, which are developed in the aggregate with other data, results and measurements or in a manner that does not disclose the identity of any Patient, Clinician or Clinical Partner or any specific Service Data (except in de-identified form). You hereby authorize Company to use your Service Data and to exploit Analytics in the manner and for the purposes described in these Terms of Service, including without limitation: to use Service Data to communicate with you and your Patients, Clinician(s) and Clinical Partner (as the case may be); to include, copy, disclose, distribute, transmit and display Service Data in communications between a Patient and his or her Clinician (and vice versa) that have been properly initiated via the Service; to access, record, collect, copy, store, process, analyze and use Service Data to provide the Service (including with regard to the use of Protected Health Information (PHI) in messaging between a Patient and his or her Clinician); to develop, improve, extend and test the Service (and underlying technology platforms); to design, develop and produce Analytics; to market and promote Company and the Service using Analytics (but not identifiable Service Data); and to disclose, distribute and transmit Service Data and/or Analytics to Clinical Partners.


Connections

You may be able to use the Service, access the Service and/or communicate with the Service from, and you may be able to link or communicate from the Service to, applications, devices, distribution platforms and websites owned and operated by Channel Partners and Clinical Partners. These other applications, devices, platforms and websites are not operated or controlled by Company, and you agree that Company is not responsible for the availability, accuracy, legality, appropriateness or any other aspect of the content or function of such applications, devices, platforms and websites. Any such connection to or from the Service does not constitute or imply any guarantee or endorsement by Company of that application, device, platform or website or any association with its operators. Additional or different terms and conditions (including without limitation, privacy and security practices) apply when you access and use such other applications, devices, platforms and websites.


User Contributions

The Service may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, and other interactive features (collectively, "Interactive Services") that allow users to post, submit, publish, display or transmit to other users or other persons (hereinafter, "post") content or materials (collectively, "User Contributions") on or through the Service.

All User Contributions must comply with the Content Standards set out in these Terms of Service.

Any User Contribution you post to the site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Service, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material for any purpose.

You represent and warrant that:

  • You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns.
  • All of your User Contributions do and will comply with these Terms of Service.

You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not the Company, have fully responsibility for such content, including its legality, reliability, accuracy and appropriateness.

We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the Service.

Monitoring and Enforcement; Termination

We have the right to:

  • Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
  • Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms of Service, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Service or the public or could create liability for the Company.
  • Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
  • Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Service.
  • Terminate or suspend your access to all or part of the Service for any or no reason, including without limitation, any violation of these Terms of Service.

Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Service. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

However, we cannot review all material before it is posted on the Service, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

Content Standards

These content standards apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, User Contributions must not:

  • Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
  • Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
  • Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.
  • Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Service and our Privacy Policy.
  • Be likely to deceive any person.
  • Promote any illegal activity, or advocate, promote or assist any unlawful act.
  • Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.
  • Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
  • Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising.
  • Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

Copyright Infringement

If you believe that any User Contributions violate your copyright, please see our Copyright Policy for instructions on sending us a notice of copyright infringement. It is the policy of the Company to terminate the user accounts of repeat infringers.

Reliance on Information Posted

The information presented on or through the Service is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Service, or by anyone who may be informed of any of its contents.

This Service may include content provided by third parties, including materials provided by other users, bloggers and third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

Changes to the Service

We may update the content on this Service from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Service may be out of date at any given time, and we are under no obligation to update such material.

Information About You and Your Visits to the Service

All information we collect on this Service is subject to our Privacy Policy. By using the Service, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

Online Purchases and Other Terms and Conditions

All purchases through our site or other transactions for the sale of services or information formed through the Service, or as a result of visits made by you are governed by our Terms of Sale (available at https://www.nexhealth.com/terms-of-sale), which are hereby incorporated into these Terms of Service.

Additional terms and conditions may also apply to specific portions, services or features of the Service. All such additional terms and conditions are hereby incorporated by this reference into these Terms of Service.

Linking to the Service and Social Media Features

You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part

This Service may provide certain social media features that enable you to:

  • Link from your own or certain third-party Services to certain content on this Service.
  • Send e-mails or other communications with certain content, or links to certain content, on this Service.
  • Cause limited portions of content on this Service to be displayed or appear to be displayed on your own or certain third-party Services.

You may use these features solely as they are provided by us and solely with respect to the content they are displayed with. Subject to the foregoing, you must not:

  • Establish a link from any Service that is not owned by you.
  • Cause the Service or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other site.
  • Link to any part of the Service other than the homepage.
  • Otherwise take any action with respect to the materials on this Service that is inconsistent with any other provision of these Terms of Service.

The website from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in these Terms of Service.

You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission without notice.

We may disable all or any social media features and any links at any time without notice in our discretion.

Links from the Service

If the Service contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third party websites linked to this Service, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

Geographic Restrictions

The owner of the Service is based in the State of California in the United States. We provide this Service for use only by persons located in the United States. We make no claims that the Service or any of its content is accessible or appropriate outside of the United States. Access to the Service may not be legal by certain persons or in certain countries. If you access the Service from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

Disclaimer of Warranties

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Service will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY SERVICE LINKED TO IT.

YOUR USE OF THE SERVICE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE IS AT YOUR OWN RISK. THE SERVICE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE SERVICE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Limitation on Liability

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICE, ANY SERVICES LINKED TO IT, ANY CONTENT ON THE SERVICE OR SUCH OTHER SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE OR SUCH OTHER SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Indemnification

You agree to defend, indemnify and hold harmless the Company, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Terms of Service or your use of the Service, including, but not limited to, your User Contributions, any use of the Service's content, services and products other than as expressly authorized in these Terms of Service, or your use of any information obtained from the Service.

Governing Law and Jurisdiction

All matters relating to the Service and these Terms of Service, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).

Any legal suit, action or proceeding arising out of, or related to, these Terms of Service or the Service shall be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware although we retain the right to bring any suit, action or proceeding against you for breach of these Terms of Service in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.


International Use

You hereby expressly consent to the transmission, collection, storage, processing and use of the Analytics and your Service Data within, from and to the United States, in addition to the country where you are located (if not the United States). Company makes no representation that the Service is accessible, appropriate or legally available for use in locations outside the United States, and accessing and using the Service is prohibited from territories where doing so would be illegal. If you access or use the Service from other locations, then you do so at your own initiative and risk and are solely responsible for compliance with local laws.

Arbitration

At Company's sole discretion, it may require You to submit any disputes arising from these Terms of Service or use of the Service, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying Delaware law.

Limitation on Time to File Claims

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR THE SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

Waiver and Severability

No waiver of by the Company of any term or condition set forth in these Terms of Service shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Service shall not constitute a waiver of such right or provision.

If any provision of these Terms of Service is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Service will continue in full force and effect.


Terms Required by Apple

In the event that you obtain any App through the App Store, offered by Apple, Inc. (Apple), then the following shall apply: Both you and Company acknowledge that the agreements in the Terms of Service are concluded between you and Company only, and not with Apple, and that Apple is not responsible for the App; You will only use the App in connection with an Apple device that you own or control; You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App; In the event of any failure of the App to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, paid for the App; You acknowledge and agree that Company, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the App; You acknowledge and agree that, in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Company, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim; You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties; Both you and Company acknowledge and agree that, in using the App, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; Both you and Company acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms of Service, and that upon your acceptance of the Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms of Service against you as the third party beneficiary hereof; and In the event you use the App to provide you with real-time route guidance, YOUR USE OF THIS REAL TIME ROUTE GUIDANCE APPLICATION IS AT YOUR SOLE RISK. LOCATION DATA MAY NOT BE ACCURATE.

Terms Required by BrainTree

Company uses Braintree, a division of PayPal, Inc. (Braintree) for payment processing services. By using the Braintree payment processing services you agree to the Braintree Payment Services Agreement available at https://www.braintreepayments.com/legal/gateway-agreement, and the applicable bank agreement available at https://www.braintreepayments.com/legal/bank-agreement.


Entire Agreement

The Terms of Service, our Privacy Policy, Terms of Sale, API Agreement, and Order Form, which are all hereby incorporated by reference, constitute the sole and entire agreement between you and NexHealth, Inc. with respect to the Service and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Service.

Your Comments and Concerns

This Service is operated by NexHealth, Inc., 333 Bush St., Suite 2000, San Francisco, California 94104.

All notices of copyright infringement claims should be sent to the copyright agent designated in our Copyright Policy in the manner and by the means set forth therein.

All other feedback, comments, requests for technical support and other communications relating to the Service should be directed to: contact@nexhealth.com.