Acceptance of the Terms of Use.
By accessing or using the website offered by Acellus Health, Inc. (“Acellus Health,” “we,” “us” or “our”) at acecancer.com and all associated pages and services (collectively referred to as our “Website”) and/or the services available through the Website (collectively referred to with the Website as the “Services”), you (the “User”, “your” or “you”) confirm that you have read, understand and agree to be bound by these terms of use (“Terms of Use”) and our Privacy Policy. Please read the Terms of Use and Privacy Policy carefully and print a copy for your records.
IF YOU ARE UNWILLING TO BE BOUND BY THESE TERMS OF USE OR THE PRIVACY POLICY, DO NOT ACCESS OR USE THE SERVICES.
THE services ARE NOT MEDICAL CARE AND ARE NOT INTENDED TO BE USED FOR URGENT OR EMERGent HEALTH CARE NEEDS. IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, PLEASE DIAL 911.
PLEASE BE AWARE THAT SECTION 15 OF THESE TERMS OF USE, BELOW, CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND ACELLUS HEALTH HAVE AGAINST EACH OTHER ARE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT CLAIMS THAT YOU HAVE AGAINST ACELLUS HEALTH TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT IN SECTION 15 OF THESE TERMS: (i) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST ACELLUS HEALTH ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR className MEMBER IN ANY className OR REPRESENTATIVE ACTION OR PROCEEDING; AND (ii) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION PROVISIONS SET FORTH IN SECTION 15 OF THESE TERMS COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING className ACTION LITIGATION. PLEASE SEE SECTION 15 FOR MORE INFORMATION REGARDING THESE ARBITRATION PROVISIONS, INCLUDING THE ARBITRATION PROVISIONS’ IMPACT ON THE PENDING className LITIGATION AND HOW TO OPT OUT OF ARBITRATION. THE TERMS OF SERVICE LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Beta Version of Services.
The Services are still under development, are not generally available and may have bugs, defects, errors, operational problems or other non-conformities. You acknowledge that you are accessing the Services for purposes of testing and evaluating the Services and providing feedback on the Services. We ask that you report any bugs, defects, errors, operational problems or other non-conformities that you discover while using the Services, but we are under no obligation to correct such issues.
YOU AGREE THAT THE SERVICES MAY NOT HAVE NOT BEEN FULLY DEVELOPED, FULLY TESTED OR USED IN A LIVE PRODUCTION ENVIRONMENT. YOU AGREE THAT THE SERVICES ARE EXPERIMENTAL AND THAT WE DO NOT WARRANT THE PERFORMANCE OF THE SERVICES IN ANY WAY. WE DO NOT GUARANTEE THAT ANY SERVICES WILL EVER BE MADE GENERALLY COMMERCIALLY AVAILABLE, OR THAT ANY GENERALLY COMMERCIALLY AVAILABLE VERSION WILL CONTAIN THE SAME OR SIMILAR FUNCTIONALITY AS THE VERSION MADE AVAILABLE TO YOU.
Changes to these Terms of Use.
By accessing our Services, you acknowledge that we have the right to revise and amend these Terms of Use without prior notice. Your continued use of the Services following our posting of any such changes will mean that you accept such changes. Notwithstanding the foregoing, We may notify you at the email address provided to us or by a posting on the Website in the event that we make any material changes to these Terms of Use, and you may have to agree to or reject the updated Terms of Use at that time, in order to continue using the Services.
The Services are For Use by Individuals 18 Years of Age and Older.
While Acellus Health stores, processes and transfers data of individuals of all ages, including data regarding children based on their guardian’ s or parent’ s consent, the Services are intended solely to be accessed by natural persons who are eighteen (18) years of age or older, and any registration by, use of, or access to the Services by any person under 18 is unauthorized and in violation of these Terms of Use. We may terminate your use of the Services without notice if we believe you are less than 18 years old. By using the Services, you represent and warrant that, you are a natural person, you are 18 or older, and that you agree to and will abide by all of the terms and conditions of these Terms of Use.
Services Use Restrictions.
Register for more than one account or register or operate an account on behalf of another person unless you are the personal representative, parent or legal guardian of such other person;
Impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age, or your affiliation with or authority to act on behalf of any person or entity;
Upload, post, transmit, share, store, or otherwise make publicly available through the Services any material that contains private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers, and credit card numbers;
Upload, post, transmit, share, or otherwise make available any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of the Services;
Transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter”, “spam”, or any other similar solicitation.
Use any automated means to access the Services, or collect any information from Services (including, without limitation, robots, spiders, scripts, or other automatic devices or programs);
Frame the Services in any manner, utilize framing techniques to enclose any content or other proprietary information, place pop-up windows over any of the Sites’ pages, or otherwise affect the display of any pages on the Site;
Engage in the practices of “screen scraping,” “database scraping” or any other activity with the purpose of obtaining content or other information;
Use the Services in any manner that could disable, overburden, damage, or impair the Services, or otherwise interfere with any other party’s use of the Services, including their ability to engage in real time activities through the Services;
Engage in any conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm Acellus Health or users of the Services, or expose them to liability; or
Access, use or monitor our Services for benchmarking or any direct competitive purposes.
Additionally, you agree not to:
Use any device, software, or routine that interferes with the proper working of the Services;
Modify, disassemble, decompile or reverse engineer the Services except to the extent that such restriction is expressly prohibited by law;
Remove, circumvent, disable, damage or otherwise interfere with security-related features of the Services, features that prevent or restrict use or copying of any content accessible through the Services or features that enforce limitations on use of the Services;
Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Services;
Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, the server on which the Services are stored, or any server, computer, or database connected to the Services;
Attack the Site or the Telehealth Platform via a denial-of-service attack or a distributed denial-of-service attack; or
Otherwise attempt to interfere with the proper working of the Services.
We may terminate or disable your access to any or all of the Services for any reason, with or without cause, including if we believe that you have violated or acted inconsistently with these Terms.
User Representations.
Parts of the Services may be accessed only by registering for an account and creating a password. Keep your password secure. You are responsible for the activities on your account. You represent, warrant, and agree that no materials of any kind submitted through your account or otherwise posted or shared by you through the Services will violate or infringe upon the rights of any third party, including without limitation any copyright, trademark, patent, privacy, publicity, or other personal or intellectual property rights; or contain libelous, defamatory, or otherwise unlawful material. You will notify us promptly if you discover any unauthorized use of your account. We are not responsible for any losses resulting from unauthorized use of your account.
The Services Do Not Provide Medical Advice.
The Services are provided for your convenience and education. They contain a Website for a secure, private view into electronic health records and may give you a secure way to communicate with your care team. It may also provide you with tools to help you manage your cancer journey. Use of the Services does not create a health care provider/patient relationship between you and Acellus Health or any of our providers. The Services are not a substitute for professional medical advice, diagnosis or treatment. You should always seek the advice of a physician or other qualified health care provider with any questions regarding personal health or medical conditions.
Never disregard, avoid or delay in obtaining medical advice from your doctor or other qualified health care provider because of something you have read through the Services. If you suspect that you have a medical problem or condition, please contact a qualified health care professional immediately.
IF YOU ARE EXPERIENCING AN EMERGENCY, PLEASE DIAL 911.
Information Posted through the Services.
As between us and you, all content made available on or through the Services, whether uploaded, published, or displayed by us, including designs, text, graphics, pictures, video, information, software, music, sound and other files, and their selection and arrangement, is the property of Acellus Health (collectively the “Acellus Health Content”). To the best of our knowledge, we use only content that we own or have permission to use. No Acellus Health Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the owner’s prior written permission. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication, or otherwise.
You are solely responsible for the information that you post on or through the Services and your conduct regarding the Services. By posting information to or through the Services, you agree to (a) provide accurate, current, and complete information; (b) maintain the security of your password and identification, to the extent you are provided a password and identification; (c) promptly notify us of any changes to information or circumstances that could affect your eligibility to continue using the Services; and (d) be fully responsible for all use of your account and for any actions that take place using your account.
The Services may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Where the Services contain links to Third-Party Links & Ads, these links are provided for your information and convenience only. We have no control over the contents of those sites or resources. Acellus Health does not review, approve, endorse or make any promises with respect to Third-Party Links & Ads. You use Third-Party Links & Ads at your own risk. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, not these Terms of Use.
Disclaimers.
We reserve the right to change any and all content within the Services and any service offered through the Services at any time without notice.
WE PROVIDE THE SERVICES “AS IS” AND ASSUME NO RESPONSIBILITY FOR ANY FAILURE TO PROVIDE THE SERVICES TO YOU. THE SERVICES MAY BE TEMPORARILY UNAVAILABLE FROM TIME TO TIME FOR MAINTENANCE OR OTHER REASONS. WE MAY DISCONTINUE THE SERVICES OR ANY GOODS OR SERVICES AVAILABLE THROUGH THE SERVICES AT ANY TIME AND FOR ANY REASON. WE ARE NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE OR CABLE NETWORK OR LINES, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, FAILURE OF EMAIL, OR TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR ON OR THROUGH THE SERVICES, INCLUDING INJURY OR DAMAGE TO USERS OR TO ANY OTHER PERSON’S DEVICES RELATED TO OR RESULTING FROM USE OF THE SERVICES.
UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING ANY LOSS OR DAMAGE TO ANY USER DATA, FINANCIAL DAMAGES, LOST PROFITS, LOSS OF BUSINESS, OR PERSONAL INJURY OR DEATH, RESULTING FROM ANYONE’ S USE OF THE SERVICES.YOU AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR OWN RISK, AND THAT WE EXPRESSLY DISCLAIM ALL WARRANTIES, TERMS AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES, TERMS AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS AND SATISFACTORY QUALITY.
Limitation of Certain Damage Types.
EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED OR PROHIBITED, IN NO EVENT WILL ACELLUS HEALTH OR ANY OF ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SERVICES OR ANY OF CONTENT OR OTHER MATERIALS ON OR ACCESSED THROUGH THE SERVICES, EVEN IF ANY OF US IS AWARE OF OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Limitation of Liability Amount.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF THE AMOUNT PAID BY YOU TO US FOR THE SERVICES OR PRODUCT AT ISSUE IN THE THREE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM OR $100.00. YOU ACKNOWLEDGE THAT IF NO FEES ARE PAID TO US FOR A SERVICE OR PRODUCT, YOU SHALL BE LIMITED TO, AT MOST, INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PROHIBITED BY APPLICABLE LAW, AND SHALL NOT BE ENTITLED TO ANY OTHER DAMAGES, REGARDLESS OF THE CAUSE OF ACTION.
NOTHING IN THESE TERMS SHALL LIMIT OR EXCLUDE OUR LIABILITY FOR: (i) DEATH OR PERSONAL INJURY RESULTING FROM OUR WILLFUL MISCONDUCT; (ii) FRAUD OR FRAUDULENT MISREPRESENTATIONS; OR (iii) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY APPLICABLE LAW.
Governing Law, Waiver.
By using the Services, you agree that these Terms of Use shall be governed by the laws of the State of Delaware without regard to its conflict of law provisions.
Our failure to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of that right or provision. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, then we nevertheless agree that the court should endeavor to give effect to the intentions reflected in the provision, and the other provisions of these Terms of Use shall remain in full force and effect. The language of these Terms of Use shall be construed as to its fair meaning and not strictly for or against any party.
Arbitration Agreement & Dispute Resolution
Please read this Arbitration Agreement carefully. It is part of your contract with Acellus Health and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A className ACTION WAIVER.
Scope of Arbitration Agreement (“Arbitration Agreement”). You acknowledge and agree that any dispute or claim relating in any way to your access or use of the Services or to any other aspect of your relationship with Acellus Health will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-className, non-representative) basis; and (2) you or Acellus Health may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose before this or any prior agreement. NOW OR IN THE FUTURE, THERE MAY BE LAWSUITS AGAINST ACELLUS HEALTH ALLEGING className, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS. SUCH CLAIMS, IF SUCCESSFUL, COULD RESULT IN SOME MONETARY RECOVERY TO YOU. THE EXISTENCE OF SUCH className, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUITS DOES NOT MEAN THAT SUCH LAWSUITS WILL ULTIMATELY SUCCEED. BUT IF YOU AGREE TO ARBITRATION WITH ACELLUS HEALTH, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVERY MONETARY OR OTHER RELIEF UNDER SUCH className, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUITS. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST ACELLUS HEALTH IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, Steve Sobieski, ssobieski@acellushealth.com. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’ s rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. Payment of all filing, administration, and arbitration fees will be governed by the AAA’s rules. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum.
Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Acellus Health. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages, including attorneys’ fees and costs to the extent authorized by and consistent with law, and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms of Use. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding on you and Acellus Health. The parties agree that a court of competent jurisdiction shall have the authority to enter a judgment upon the award made by the arbitrator or to confirm an arbitration award, and any such proceeding shall not itself be deemed a covered dispute.
Waiver of Jury Trial. YOU AND ACELLUS HEALTH EACH KNOWINGLY AND VOLUNTARILY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Acellus Health are instead electing to have claims and disputes resolved by arbitration. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms of Use as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is limited. In any litigation between you and Acellus Health over whether to vacate or enforce an arbitration award, you and Acellus Health waive all rights to a jury trial, and elect instead to have a judge resolve the dispute.
Waiver of className or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A className BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of className or consolidated actions is deemed invalid or unenforceable, neither you nor Acellus Health is entitled to arbitration. Instead, all claims and disputes will then be resolved in a court as set forth in Section 14 (Disputes, Governing Law, Venue and Jurisdiction) above.
Time Limitation. As allowed by applicable law, any claim must be brought within one (1) year of the date of the event giving rise to such claim.
Opt Out. You may opt out of this Arbitration Agreement. If you do so, neither you nor Acellus Health can force the other to arbitrate. To opt out, you must notify Acellus Health in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Acellus Health username (if any), the email address you used to set up your Acellus Health account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to: contact@acellushealth.com. If you opt out of this Arbitration Agreement, all other parts of these Terms of Use will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us.
Exclusive Venue. To the extent the parties are permitted under these Terms of Use to initiate litigation in a court, both you and Acellus Health agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in New Castle County, Delaware. Indemnity
To the maximum extent permitted by law, you agree to indemnify and hold us, our subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners, and employees, harmless from and against any loss, liability, claim, demand, damages, costs (including attorneys’ fees), and expenses, arising out of or in connection with your use of the Services or any violation of these Terms of Use.
Survival.
The following Sections survive the termination of these Terms of Use: 9 through 17.
How to Contact Us
If you have any questions, comments or notices regarding these Terms, please contact us at contact@acellushealth.com.
