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Terms & Services
Last Updated: May 1, 2023
The following Terms of Use (“Terms”) governs the access and use of the Site and Services (as such terms are defined below) provided by Calico Care, LLC, a Delaware limited liability (“Company”, “Calico Care”, “us”, “our”, “we”). This is a legal agreement between you (as defined below) and Calico Care and incorporates by reference the Privacy Policy located at www.calico.care/privacy-policy (the “Privacy Policy”), provided, however, that to the extent that there are any conflicts between any of the terms or conditions of these Terms and any of the terms or conditions of the Privacy Policy (provided that the inclusion of additional terms in the Privacy Policy that are not included in these Terms shall not be deemed to constitute a conflict, and such additional terms shall apply to your access and use of the Site and the Services), the applicable terms and provisions of these Terms shall control.
Consent and Use of the Site and Services
By visiting, using, ordering, subscribing, or logging into the website at www.calico.care, related subdomains, and the related Calico Care mobile applications (the “Apps”) (collectively the “Site”) and related Services (defined below), you agree to the terms and conditions of these Terms, governing your access to and use of the Site and, if applicable, the Services, including but not limited to your agreement to arbitrate disputes relating to the Site and/or the Services. If you are entering into these Terms on behalf of a party that is a company or other legal entity, you represent and warrant that you have the authority to bind such entity to these Terms, in which case the terms “you” or “your” shall refer to such entity. These Terms are effective as of the date you accept these Terms by accessing the Site and/or Services (“Effective Date”).
IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE SERVICE TERMS, YOU (AND THE ENTITY ON WHOSE BEHALF YOU ARE SEEKING TO ENTER INTO THESE SERVICE TERMS) MAY NOT USE THE SITE AND/OR SERVICES.
Consent and Use of the Site and Services
By visiting, using, ordering, subscribing, or logging into the website at www.calico.care, related subdomains, and the related Calico Care mobile applications (the “Apps”) (collectively the “Site”) and related Services (defined below), you agree to the terms and conditions of these Terms, governing your access to and use of the Site and, if applicable, the Services, including but not limited to your agreement to arbitrate disputes relating to the Site and/or the Services. If you are entering into these Terms on behalf of a party that is a company or other legal entity, you represent and warrant that you have the authority to bind such entity to these Terms, in which case the terms “you” or “your” shall refer to such entity. These Terms are effective as of the date you accept these Terms by accessing the Site and/or Services (“Effective Date”).
IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE SERVICE TERMS, YOU (AND THE ENTITY ON WHOSE BEHALF YOU ARE SEEKING TO ENTER INTO THESE SERVICE TERMS) MAY NOT USE THE SITE AND/OR SERVICES.
Definitions
a. “Administrator” means an Authorized User of Subscriber (as defined below) with authority to designate additional Authorized Users and/or Administrators, and the authority to commit the Subscriber to additional Services from Calico Care.
b. “Authorized User” means an individual employee, temporary employee, independent contractor, partner or member of Subscriber who has been added to the Subscriber’s account as a user.
c. “Confidential Information” means the Content (defined below) and any information, technical data, or know-how considered proprietary or confidential by either party to these Terms including, but not limited to, either party’s research, services, inventions, processes, specifications, designs, drawings, diagrams, concepts, marketing, techniques, documentation, source code, customer information, personally identifiable information, pricing information, procedures, menu concepts, business and marketing plans or strategies, financial information, and business opportunities disclosed by either party before or after the Effective Date of these Terms, either directly or indirectly in any form whatsoever, including in writing, orally, machine-readable form or through access to either party’s premises.
d. “Content” means any information, text, images, or logos that Subscriber or any Authorized User uploads or posts to the Services, and any information provided by Subscriber or any Authorized User to Calico Care in connection with the Services.
e. “Discount Tier” means the discount available for your agreement to obtain specific levels of Services and such discounts shall only apply to the level of Services indicated, and not globally to all Services.
f. “Fees” means any charges or fees for the Services or Hardware, as more specifically provided in an applicable Order Form or any change request with respect to the Services or Hardware.
g. “Hardware” means any hardware, sensors, or peripherals you obtain from Calico Care in connection with the Services.
h. “Order Form” means the order form provided by Calico Care for you to sign up to receive the Services or make changes to the Services.
i. “Patient” means any of Subscriber’s patients, customers, or customers, for or with whom Subscriber uses the Services and Hardware.
j. “Services” means the software, apps, platform, and/or services provided by Calico Care.
k. “Subscriber” shall refer to the purchaser of the Services provided by Calico Care that is entering into these Terms, and shall also include any present or former agent, representative, independent contractor, employee, servant, attorney and any entity or person who had authority to act on behalf of Subscriber.
l. “Security Emergency” means a violation by Subscriber, an Authorized User, or Visitor, of these Terms that (i) could disrupt (A) Calico Care's provision of the Services; (B) the business of other subscribers to the Services; or (C) the network or servers used to provide the Services; or (ii) provides unauthorized third party access to the Services.
m. “You” or “your” means you as a Visitor, Subscriber, or Authorized User.
n. “Visitor” means an individual or legal entity that visits the Site.
Limited License & Use of the Services
a. Calico Care hereby grants to Subscriber and related Authorized Users, and Visitors, a non-exclusive, non-transferable, limited, revocable, worldwide right to use the Site and, if applicable, the Services, solely for their own internal, non-commercial purposes, subject to the provisions of these Terms. All rights not expressly granted to Subscriber, Authorized Users, or Visitors are reserved by Calico Care and its licensors. In addition, you shall not:
1. license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party (other than Subscriber’s Authorized Users) the Site or the Services in any way;
2. modify or make derivative works based upon the Site;
3. embed the Site as a frame from within another website or application;
4. access the Site or the Services for purposes of monitoring its availability, performance, functionality, or for any other benchmarking;
5. reverse engineer or access the Site in order to (i) build a competitive product or service, (ii) build a product using ideas, features, functions, or graphics that are similar to those related to the Site, or (iii) copy any ideas, features, functions or graphics of the Site;
6. send to or store on the Site any material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
7. interfere with or disrupt the integrity, security or performance of the Site or the data contained therein, or Calico Care’s servers or networks, including, without limitation, by means of submitting a virus to the Site, overloading, “flooding,” “spamming,” “mail bombing” or “crashing” or “DDoS” attacks;
8. attempt to gain unauthorized access to the Site or its related systems or networks;
9. take any action that imposes an unreasonably or disproportionately large load on Calico Care's infrastructure;
10. use the Site or the Services for any unlawful purpose;
11. violate any local, provincial, state, federal or international rules, regulations, laws or ordinances using the Site or the Services;
12. provide any information to Calico Care that is false or misleading, that attempts to conceal your identity or that you do not have the right to disclose; or
13. solicit others to perform or participate in any of the foregoing actions.
b. Calico Care shall be entitled to adjust the scope of the Site, the Services and the underlying technical infrastructure to reflect the continuing development of the Site, the Services and technical advances.
c. Subscriber and each Authorized User grants to Calico Care a non-exclusive, royalty-free right during their use of the Services, to use the Confidential Information for the sole purpose of performing Calico Care's obligations under and in accordance with these Terms. Such rights shall include permission for Calico Care to generate and publish aggregate, anonymized reports on system usage and Content trends and type, during and beyond the term of these Terms, provided they do not conflict with the section entitled Confidentiality.
Access to the Services
a. Subscriber and each Authorized User is only permitted to access and use the Services once Subscriber or Authorized User registers as a Subscriber on the Site. Subscriber and each Authorized User is required to provide their full legal name, a valid email address, and any other information reasonably requested by Calico Care.
b. Each Subscriber and Authorized User will choose or be provided with a unique identifier to access and use the Services (“Username”). Each Username shall only be used by the applicable Subscriber or Authorized User, and shall not be shared with, or used by any other person, including other Subscribers or Authorized Users.
c. The initial Administrator shall be Subscriber, which shall have the authority to administer the subscription and designate additional Authorized Users and/or Administrators. Any Administrator shall be deemed to have the authority to manage the subscription of any Authorized Users. The Administrator will deactivate an active Username if the Administrator wishes to terminate access to the Services for any Authorized User.
d. Administrators are responsible for all use of the Services by Authorized Users on the list of active Authorized Users associated with their subscription to the Services.
e. As between Calico Care and the Subscriber or Authorized User, any Content uploaded or posted to the Services remains the property of the Subscriber or the Authorized User who uploaded or posted it. Upon the cancellation or termination of the Services, Calico Care shall only be responsible for the return of Content directly to the Administrator or a designated Authorized User in the event that the Administrator is unable to be reached.
f. All access to and use of the Services via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Services is strictly prohibited.
g. We reserve the right to deny registration of any account or Username at our discretion.
Subscriber’s Responsibilities
Subscriber is responsible for all of Subscriber’s activity on the Site and for all activity occurring under Subscriber’s and Subscriber’s Authorized User accounts, and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Subscriber’s use of the Site and the Services, including those related to data privacy, international communications and the transmission of technical or personal data.
Subscriber is solely responsible for all Content provided to the Site in connection with
Subscriber’s and Subscriber’s Authorized Users use of the Site and Services. Calico Care does not own any Content provided hereunder, provided that Subscriber hereby grants to Calico Care a worldwide, royalty-free, non-exclusive, sublicensable right to use, reproduce, create derivative works of, distribute, perform, transmit and publish all Content for the purpose of providing the Site and the Services.
Account Information
In the course of Subscriber’s use of the Site or the Services, we may ask Subscriber for certain information, including Subscriber’s name, email address, phone number, mailing address, billing address, shipping address, and payment card information (collectively, “Account Information”).
If Subscriber opens an account or commences any transaction of business at or on the Site, Subscriber may be required to complete the registration process by providing certain additional information and registering a Username and password for at least one Administrator. Subscriber’s and any Administrator’s Account Information must be up-to-date and accurate at all times. Should any such Account Information change, Subscriber and/or the applicable Administrator must update it in Subscriber’s or such applicable Administrator’s user profile. Subscriber agrees that Subscriber is solely responsible for the accuracy and content of Subscriber’s Account Information.
Password and Security
Subscriber and each Authorized User is responsible for maintaining the confidentiality of their Username and password and also for all activities that take place under their Username and/or account.
Consistent with and without limiting the scope of provisions limiting liability elsewhere in these Terms, in no event will Calico Care be liable for any indirect or consequential loss or damage of any kind whatsoever resulting from the disclosure of Subscriber’s, Administrator’s, or any Authorized User’s Username and/or password or their failure to comply with this section.
Subscriber and each Authorized User shall: (a) notify Calico Care immediately of any unauthorized use of any password or account used for access to the Site or the Services, or any other known or suspected breach of security related to the Site or the Services; (b) not provide false identity information to gain access to or use the Site or the Services; (c) not use the Site or the Services to defame, abuse, harass, threaten or otherwise violate the legal right of others; (d) not publish, post, upload, email, distribute or disseminate any defamatory, misleading, infringing or unlawful content; and (e) not collect, store or transmit personal information about individuals or any information that is subject to applicable privacy laws or regulations.
Payment, Refunds, and Subscription Changes
Subscriber will be charged upon the expiration of any applicable trial period. Services canceled prior to the expiration of any trial period, will not be charged except as otherwise stated in an applicable Order Form. We charge and collect the greater of (a) 1/12th of the Minimum Annual Fee, if any specified in your Order Form, and (b) with the known Fees for that month (e.g. if Subscriber has a fixed number of Patients and associated Hardware at a rate higher than the minimum, we will bill that amount). The Fees (as described in an Order Form ), for all other Services, including increases to number or levels of “Patients” or “Hardware”, will be billed on a monthly basis and payable in the time specified in your Order Form. Fees based upon “Patients” or “Hardware” are billed on a pro-rated amount based 30-day month from date of first service in relation to a particular Patient or item of Hardware through the time that we receive the returned Hardware utilized with such Patient or until you assign the Hardware to a new Patient through the Services. Subscriber has 30 days to assign equipment to a new patient without cost or return the equipment to Calico Care. Early return fees might be applicable. All Fees are exclusive of all federal, state, provincial, municipal, or other taxes which Subscriber agrees to pay based on where the Subscriber is located. In the event of updated tax rates, Calico Care will apply the new tax rate without notice to Subscriber. All Fees are final and non-refundable.
The amount charged on the next billing cycle will be automatically updated to reflect any changes to the Services, including upgrades or downgrades (or adding or removing Patients), and including the addition or removal of discounts included for the purchase of suite Services or Hardware. Adding Services may trigger prorated charges in the current billing cycle. Subscriber authorizes Calico Care to apply updated charge amounts. Changes to the requested Services, including downgrades to Hardware, may result in loss of access to Content, features or certain of the Services, or an increase or reduction in the amount of available capacity for Content provided by the Services.
Outstanding balances shall accrue interest at a rate equal to the lesser of one a percent (1.0%) per month and the maximum rate permitted by applicable law, from due date until paid, plus Calico Care's reasonable costs of collection.
Except as specifically stated in your Order Form, the fixed fees and other fees expressed as stated dollar amounts in these Terms and your Order Form may be increased annually, commencing on the one-year anniversary date of the date you first acquired the right to use the Services (“Effective Date”). You agree to pay all charges, recurring Fees, applicable taxes and other charges incurred by you at the rates in effect for the billing period in which those charges are incurred.
Subscriber is responsible for paying all taxes associated with the subscription to the Services. If Calico Care has the legal obligation to pay or collect taxes for which Subscriber is responsible under this section, the appropriate amount shall be charged to and paid by Subscriber, unless Subscriber provides Calico Care with a valid tax exemption certificate authorized by the appropriate taxing authority. Any and all payments by or on account of the compensation payable under these Terms shall be made free and clear of and without deduction or withholding for any taxes.
Subscription Cancellation and Termination
Administrators are solely responsible for canceling Subscriber’s subscriptions. Administrator may cancel Subscriber’s subscription, as permitted in the Order Form, by emailing us at info@calico.care. For security reasons, cancellations shall only be performed by an Administrator. The Administrator may be directed to call support to complete the cancellation. Cancellations shall not be accepted by any other means.
Calico Care in its sole discretion has the right to suspend or discontinue providing the Services to any Subscriber or Authorized User without notice for actions that are (a) in violation of these Terms and (b) create a Security Emergency.
To avoid additional Fees, all Hardware that has not been in continuous use for a period of 12-months must be returned to us within fifteen (15) days following termination of the Agreement or your election to not assign the Hardware to a new Patient.
Representations & Warranties
Subscriber and agents, employees, or contractors acting on behalf of Subscriber, Authorized User, and Visitor, in entering into these Terms, each individually represents and warrants that they have the legal power and authority to enter into these Terms and that they (a) are an individual who is at least 18 years of age; (b) have not falsely identified themselves nor provided any false information to gain access to the Site or Services; (c) will provide current, complete and accurate payment and Account Information in connection with their use of the Site or Services; and (d) will promptly update Account Information and other Subscriber information, including but not limited to Subscriber’s email address and credit card information, so that Calico Care may facilitate Subscriber’s requested Services and contact Subscriber as needed.
Confidentiality
Each party agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except as necessary to perform its obligations under these Terms.
Calico Care and any third party vendors and hosting partners it utilizes to provide the Services shall hold Content in strict confidence and shall not use or disclose Content except (a) as required to perform their obligations under these Terms; (b) in compliance with the section entitled “Legal Compliance,” or (c) as otherwise authorized by Subscriber in writing.
HIPAA COVERED SERVICES
When submitting Protected Health Information (“PHI”) to, or using PHI with, any of the
Services, Customer must ensure that the submission of PHI to, or use of PHI with, the Services comply with applicable laws, including without limitation the Health Information Technology for Economic and Clinical Health Act (as incorporated in Title XIII of the American Recovery and Reinvestment Act of 2009) (“HITECH Act”) and Health Information Technology for Economic and Clinical Health Act (as incorporated in Title XIII of the American Recovery and Reinvestment Act of 2009) (“HITECH Act”). Further, prior to submission of PHI to, or use of PHI with, that you will have entered into our standard Business Associate Agreement or such other form as we may agree.
We use encryption technology to ensure the privacy of the PHI and other identifying information you provide or collected through the Services as part of the Services provided herein.
By agreeing to these Terms, you are authorizing us to utilize the PHI submitted to, or used with, the Services, and any other Content that you submit in connection with your use of the Services, to collect, use, and disclose the Content in order to provide you with access to and use of the Services. In addition, we may use the PHI for evaluation of the Services and for quality improvement purposes, and if applicable, for receiving payment. Our use and disclosure of any Protected Health Information will be conducted in accordance with our Privacy Policy found at www.calico.care/privacy-policy and applicable federal and state regulations.
HIPAA COVERED SERVICES
When submitting Protected Health Information (“PHI”) to, or using PHI with, any of the
Services, Customer must ensure that the submission of PHI to, or use of PHI with, the Services comply with applicable laws, including without limitation the Health Information Technology for Economic and Clinical Health Act (as incorporated in Title XIII of the American Recovery and Reinvestment Act of 2009) (“HITECH Act”) and Health Information Technology for Economic and Clinical Health Act (as incorporated in Title XIII of the American Recovery and Reinvestment Act of 2009) (“HITECH Act”). Further, prior to submission of PHI to, or use of PHI with, that you will have entered into our standard Business Associate Agreement or such other form as we may agree.
We use encryption technology to ensure the privacy of the PHI and other identifying information you provide or collected through the Services as part of the Services provided herein.
By agreeing to these Terms, you are authorizing us to utilize the PHI submitted to, or used with, the Services, and any other Content that you submit in connection with your use of the Services, to collect, use, and disclose the Content in order to provide you with access to and use of the Services. In addition, we may use the PHI for evaluation of the Services and for quality improvement purposes, and if applicable, for receiving payment. Our use and disclosure of any Protected Health Information will be conducted in accordance with our Privacy Policy found at www.calico.care/privacy-policy and applicable federal and state regulations.
Legal Compliance
Calico Care endeavors to protect the Confidential Information to the extent the law allows. Calico Care reserves the right to provide the Confidential Information to third parties as required and permitted by law (such as in response to a subpoena or court order), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter.
If Calico Care is required by law to make any disclosure of the Confidential Information that is prohibited or otherwise constrained by these Terms, then Calico Care will provide you with prompt written notice (to the extent permitted by law) prior to such disclosure so that you may seek a protective order or other appropriate relief. Subject to the foregoing sentence, Calico Care may furnish that portion (and only that portion) of the Confidential Information that it is legally compelled or otherwise legally required to disclose.
Availability Support
Calico Care represents and warrants that it will provide the Site and perform the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof. Calico Care will use commercially reasonable efforts to cause the Site to be available twenty-four (24) hours per day, seven (7) days a week, three hundred and sixty-five (365) days per year, outside of scheduled downtime for maintenance and upgrades and extraordinary circumstances or causes beyond our control (such as fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, strikes, lockouts, labor difficulties, generalized internet interruptions (through denial of service, worms, telecommunications problems or the like)) but does not guarantee, represent or warrant such availability. Calico Care, from time to time, may make enhancements or upgrades to the Site and/or Services which result in the Site and/or Services being unavailable, which Calico Care shall take reasonable steps to schedule so as to minimize the unavailability of the Site and/or Services and user inconvenience.
THE SITE AND THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CALICO CARE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Integrations, Third Party Links
The Services may link to or otherwise allow Subscriber or Authorized Users to access or use or integrate with third party providers of products and services (“Third Party Services”). Such Third Party Services are not “Services” under these Terms and are not subject to any provisions related to the Services, including related warranties, indemnities, service commitments or othe robligations. The availability of any Third Party Services through the Services does not imply Calico Care's endorsement of or affiliation with the provider. Access to and use of any Third Party Services are subject to the separate terms and conditions required by the providers of the Third Party Services. Calico Care does not control the Third Party Services and will have no liability to Subscriber in connection with any Third Party Service. Calico Care has no obligation to monitor or maintain any Third Party Service and may replace, disable, or restrict access to any Third Party Service or cancel related integrations at any time, without notice. The calculation of downtime of the Site, if any, does not include the unavailability of any integration to a Third Party Service.
If a Third Party Service is enabled for Subscriber or an Authorized User’s account, please be mindful of any Account Information or Content that will be shared with the third party provider
and the purposes for which the provider requires access. We will not be responsible for any use, disclosure, modification or deletion of Account Information or Content that is transmitted to, or accessed by, a Third Party Service.
BY USING OR ENABLING ANY THIRD PARTY SERVICE, YOU EXPRESSLY
ACKNOWLEDGE THAT ANY LIABILITY AND REMEDIES RELATED TO A THIRD
PARTY SERVICE IS WHOLLY GOVERNED BY THE APPLICABLE THIRD PARTY
AGREEMENT AND CALICO CARE DISCLAIMS ALL LIABILITY RELATED TO SUCH THIRD PARTY SERVICE.
Disclaimer of Warranties
CALICO CARE AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SITE, THE SERVICES OR ANY CONTENT. CALICO CARE AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SITE OR THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SITE OR THE SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, LEADS OR OTHER MATERIAL PURCHASED OR OBTAINED BY SUBSCRIBER THROUGH THE SITE OR THE SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVERS THAT MAKE THE SITE AND THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
THE SITE AND ALL CONTENT IS PROVIDED TO SUBSCRIBER STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY CALICO CARE AND ITS LICENSORS. CALICO CARE MAKES NO REPRESENTATION OR WARRANTY REGARDING ANY TRANSACTIONS SOUGHT TO BE EFFECTED THROUGH YOUR USE OF THE SITE OR THE SERVICES.
Limitation of Liability
Except in the case of a violation by Calico Care of its obligations under the sections entitled “Confidentiality” and except as provided in the section entitled “Indemnification by Calico Care”, Calico Care shall not be liable for, and each Subscriber, Authorized User, and Visitor waives the right to claim any loss, injury, claim, liability or damage of any kind resulting in any way from the Services provided to such party by Calico Care.
IN NO EVENT SHALL CALICO CARE's AGGREGATE LIABILITY PURSUANT TO THESE SERVICE TERMS EXCEED THE FEES ACTUALLY PAID BY SUBSCRIBER TO CALICO CARE IN THE THREE (3) MONTHS PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM OR IN THE CASE OF AN AUTHORIZED USER, VISITOR, OR OTHER PARTY, $1,000.00. EXCEPT IN CONNECTION WITH ITS INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL CALICO CARE AND/OR ITS LICENSORS BE LIABLE UNDER THESE TERMS TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SITE OR THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SITE OR THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SITE OR THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF CALICO CARE OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
You are solely be responsible for any damage and/or loss of Content contained in your
technology which occurs as a result of your electronic equipment and/or your computer system.
Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
Indemnification by Calico Care
Calico Care shall defend, indemnify, and hold Subscriber and Authorized Users harmless against any loss, damage, or costs (including reasonable attorneys’ fees) in connection with claims, demands, suits, or proceedings made or brought against Subscriber and Authorized Users by a third party alleging that the Services, or use of the Services as contemplated hereunder, infringes a copyright, a U.S. patent issued as of the date of final execution of these Terms, or a trademark of a third party or involves the misappropriation of any trade secret of a third party (each, a “Third Party Claim”); provided, however, that Subscriber or Authorized User:
(a) promptly give written notice of the Third Party Claim to Calico Care, and in no event later than five (5) days after learning of the Third Party Claim (provided, however, that the failure to so notify shall not relieve Calico Care of its indemnification obligations unless Calico Care can show that it was materially prejudiced by such delay and then only to the extent of such prejudice);
(b) give Calico Care sole control of the defense and settlement of the Third Party Claim (provided that Calico Care may not settle any Third Party Claim unless it unconditionally releases Subscriber of all liability); and
(c) provide to Calico Care, at Calico Care's cost, all reasonable assistance. Calico Care shall not be required to indemnify Subscriber and Authorized Users in the event of:
(i) modification of the Services by Subscriber and any Authorized User in conflict with their obligations or as a result of any prohibited activity as set forth herein to the extent that the infringement or misappropriation would not have occurred but for such modification; (ii) use of the Services in combination with any other product or service not provided by Calico Care to the extent that the infringement or misappropriation would not have occurred but for such use; or
(iii) use of the Services in a manner not otherwise contemplated by these Terms to the extent that the infringement or misappropriation would not have occurred but for such use.
Release and Indemnification
In the event you have a dispute with one or more Visitors, Subscribers, or Authorized Users (including those Subscriber authorizes) of the Site or the Services (including, but not limited to, any dispute regarding any survey, user generated Content, or other results of using the Services) or any third party website or service that may be linked to or otherwise interact with the Site, including, without limitation, any social media website, application, or service, Subscriber hereby agrees to release and forever discharges Calico Care and its agents, directors, shareholders, members, partners, managers, officers, employees, information providers, suppliers, distributors, vendors, attorneys and affiliates (collectively, the “released parties”) from any and all rights, claims, complaints, demands, causes of action, proceedings, liabilities, obligations, legal fees, costs and disbursements of any nature whatsoever, whether known or unknown, which now or hereafter arise from, relate to, or are connected with such dispute and/or your use of the Site and/or the Services, to the fullest extent permitted by law.
You further agrees to indemnify, defend and hold harmless, to the fullest extent permitted by law, the released parties from and against all claims, demands, liabilities, losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from, arising out of or in connection with your use, unlawful use or other misuse, or inability to use the Site or the Services, your breach of these Terms, or otherwise relating to the business we conduct on the Site (including, without limitation, any potential or actual communication, transaction or dispute between Subscriber and any other third party), any Content or Confidential Information posted by Subscriber or on your behalf to the Site or Services, any use of any service provided by a third party provider, or any use of a service offered by us that interacts with a third party website or application, including any social media site or other communications platform (each, an “Indemnifiable Claim”). Subscriber shall cooperate as fully as reasonably required in the defense of any Indemnifiable Claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any Indemnifiable Claim, and Subscriber shall not settle any Indemnifiable Claim without our written consent. This section survives termination of these Terms.
Choice of Law, Arbitration, and Venue
These Terms and any claim or controversy relating to or arising from the use of the Site or the Services, including, but not limited to, any transactions made or entered into at the Site or the Services, any information, content, products, services or promotions herein contained or provided from the Site or the Services, or any functionality, software or programming contained or provided at or from the Site or the Services (hereafter, “Claims”), shall be governed by the laws of the Commonwealth of Massachusetts, without regard to principles of conflicts of law and, as applicable, the laws of the United States of America.
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY CAUSE OF ACTION OR CLAIM MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ARISES, OR THE CAUSE OF ACTION OR CLAIM SHALL BE FOREVER BARRED.
YOU AGREE TO ARBITRATE ANY AND ALL CLAIMS, INCLUDING ALL STATUTORY CLAIMS, AND ANY STATE OR FEDERAL CLAIMS. BY AGREEING TO ARBITRATION,
YOU UNDERSTAND AND AGREE THAT YOU ARE GIVING UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR USE OR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE OR THE SERVICES, WILL BE RESOLVED EXCLUSIVELY AND
FINALLY BY BINDING ARBITRATION.
All Claims shall be decided by one arbitrator pursuant to this provision and the commercial arbitration rules and procedures of JAMS, Inc. at their offices located in County of Suffolk, Commonwealth of Massachusetts. For more information on JAMS and/or the rules of JAMS, visit http://www.jamsadr.com. All Claims shall be brought solely in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. The arbitrator may not consolidate more than one person’s Claims, and may not otherwise preside over any form of a representative or class proceeding with respect to any such Claims. NEITHER PARTY SHALL BE PERMITTED TO OBTAIN AWARDS FOR AND, TO THE EXTENT PERMITTED BY LAW, EACH PARTY HEREBY WAIVES (A) ALL RIGHTS TO CLAIM PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL, ENHANCED, INDIRECT OR CONSEQUENTIAL DAMAGES AND ANY OTHER DAMAGES, OTHER THAN FOR ACTUAL OUT-OF-POCKET EXPENSES, AND (B) ALL RIGHTS TO HAVE DAMAGES MULTIPLIED OR OTHERWISE INCREASED. The decision of the arbitrator shall be final and binding. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, shall be conducted in the courts in and for the County of Suffolk, Commonwealth of Massachusetts or, where applicable, the federal District Court sitting in the County of Suffolk, Commonwealth of Massachusetts. Likewise, in the event that this arbitration agreement is for any reason held to be unenforceable, any litigation shall be commenced only in the federal court located in County of Suffolk, Commonwealth of Massachusetts. You hereby irrevocably consent to the jurisdiction of those courts for such purposes.
BY USING THE SITE OR THE SERVICES IN ANY MANNER, YOU AGREE TO THE TERMS OF THE ABOVE ARBITRATION AGREEMENT. IN DOING SO, YOU GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND ANY CLAIMS BETWEEN YOU AND CALICO CARE. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING.
Copyright/ DMCA Notice and Procedure
It is our policy to respond to allegations of copyright violations in accordance with the Digital Millennium Copyright Act (“DMCA”). If you believe that your work has been copied and is accessible on our Site in a way that constitutes copyright infringement, you may notify the Company’s designated Copyright Agent at the address below. Inquiries not compliant with the procedure outlined below may not receive a response. When a valid DMCA notification is received, Calico Care will respond by taking down the offending content. Calico Care will then take reasonable steps to contact the owner of the removed content so a counter-notification may be filed. Upon receipt of a valid counter-notification, Calico Care will generally restore the content in question, unless Calico Care receives notice from you, the notifying copyright owner, that a legal action has been filed seeking a court order to restrain the alleged infringer from engaging in the infringing activity. The Company may provide copies of such notices to the participants in the dispute or to any other third parties, at our discretion and as required by law. The Company’s Privacy Policy does not protect information provided in these notices.
(a) Notification
If you believe that your work was copied or posted on our Site in a way that constitutes copyright
infringement, please contact our designated Copyright Agent:
Stephan Habermeyer
CALICO CARE LLC
22 Boston Wharf Road, Floor 7
Boston, MA 02108
Please note that you may be liable for damages (including costs and attorneys’ fees) if you
materially misrepresent that content is infringing.
(b) Account Termination
The Company may, in appropriate circumstances, terminate an account holder or user of the Site or the Services if they are a repeat infringer. If you believe that an account holder or user is a repeat infringer, please follow the instructions above to contact the Company’s DMCA
Copyright Agent and provide information sufficient for Calico Care to verify that the account holder or user is a repeat infringer.
Miscellaneous
(a) Entire Agreement. These Terms, including the Order Form, and the Privacy Policy constitutes the entire agreement between you and Calico Care and governs your use of the Site and, as applicable, Services, superseding any prior agreements between you and Calico Care (including, but not limited to, any prior versions of these Terms).
(b) Headings. Headings in these Terms are for reference purposes only and in no way define, limit, construe or describe the scope or extent of the applicable section to which such heading applies.
(c) Waiver. The failure of either party to enforce any provision of these Terms shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
(d) Severability. If any provision in these Terms is deemed unlawful, void or unenforceable, then that provision will be deemed severed from these Terms and the remaining provisions shall remain in full force and effect as if no invalid or unenforceable provision had been part of these Terms.
(e) Local Laws and Export Control. The Site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of other applicable countries. Subscriber acknowledges and agrees that the Site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States or any other applicable country maintains an embargo collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Site, Subscriber represents and warrants that Subscriber is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Subscriber agrees to comply strictly with all U.S. and other applicable export laws and to assume sole responsibility for obtaining licenses to export or re-export as may be required. Calico Care and its licensors make no representation that the Site is appropriate or available for use in other locations. If Subscriber uses the Site from outside the United States of America, Subscriber is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries.
(f) Security. You acknowledge the risk that information and the Content stored and transmitted electronically through the Services may be intercepted by third parties. You agree to accept that risk and will not hold Calico Care liable for any loss, damage, or injury resulting from the interception of information. The Content is stored securely and encrypted. Only Calico Care, with strict business reasons, may access and transfer the Content and only to provide Subscriber or Authorized User with the Services.
(g) Third Party Services. You acknowledge and agree that Calico Care may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to provide the Site and the Services.
(h) Relationship. Nothing herein shall be deemed to create an agency, partnership, joint venture, employee-employer or franchise-franchisee relationship of any kind between Calico Care and you or any other person or entity.
(i) Third Party Links The Site may include links to other Internet sites maintained by third parties (“Linked Sites”). The Company provides Linked Sites to you solely as a convenience, and the inclusion of Linked Sites does not imply endorsement by the Company of the Linked Sites. Your access Linked Sites at your own risk, and by accessing them, you leave the Site. Linked Sites are not under the control of the Company and the Company is not responsible for the content of any Linked Sites.
(j) Assignment; Change in Control. These Terms may not be assigned by you without the prior written approval of Calico Care but may be assigned without your consent by Calico Care to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger, consolidation, stock sale or similar. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of Subscriber that results or would result in a direct competitor of Calico Care directly or indirectly owning or controlling 50% or more of Subscriber shall entitle Calico Care to terminate these Terms and Subscriber and its Authorized Users immediately.
(k) Call Monitoring and Recording. For quality assurance, Calico Care may record and/or monitor incoming calls to, and outgoing calls from, Calico Care. By accepting these Terms, Subscriber also consent to any and all call recording and monitoring performed by Calico Care or its agents, employees and/or affiliates.
(l) Modification to Terms. Calico Care reserves the right to modify the provisions of these Terms or the Privacy Policy or any other policies relating to the Site and/or the Services at any time, effective upon posting of an updated version of these Terms, the Privacy Policy, or such other policies, if applicable, on the Site. Subscriber is responsible for regularly reviewing the Site to check for changed or updated versions thereof. Continued use of the Site and/or the Services after any such changes shall constitute your consent to such changes.
(m) Notice. Calico Care may give notice by means of an electronic mail to your e-mail address on record in Calico Care account information, or by written communication sent by first class mail or pre-paid post to your address on record in Calico Care's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Calico Care (such notice shall be deemed given when received by Calico Care) at any time by letter to Calico Care delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Calico Care, in either case, addressed to:
Calico Care LLC
22 Boston Wharf Road, Floor 7
Boston, MA 02108
Questions or Additional Information
If you have questions regarding these Terms or wish to obtain additional information, please
send an e-mail to info@calico.care.