TheraNest Terms of Service
Effective date: July 24, 2018
The following Terms of Service (the “Terms”) are provided by TheraNest, LLC, and they form an agreement between us and you that governs your use of and access to (a) the public portions of www.theranest.com and http://www.therapadapp.com (the “Websites”); (b) our cloud-based electronic health record and practice management software, accessible via the password-protected portions of the Websites and the TheraNest and TheraPad mobile applications (together, the “Apps”); (c) our telehealth platform, which is accessible via the Websites (the “Telehealth Platform”); and (d) those portions of the Apps which may be accessed by patients at the direction of the health care providers who subscribe to TheraNest (the “Patient Portal”) (The Websites, the Apps, the Telehealth Platform, and the Patient Portal are collectively referred to herein as the “Services”).
This is a legally binding agreement. Please read these terms and conditions carefully. By accessing or using the Services, you signify your agreement to these Terms. By clicking the button on the online registration web page to accept this agreement, you represent that you have the full legal authority to enter this agreement on behalf of the party identified in the registration process, and in that capacity you acknowledge such party’s agreement to be bound by the terms and conditions set forth or referenced below. If you do not wish to be bound by these Terms, you must not access or use the Websites, the Apps, or the Services.
For customers who are covered entities (as that term is defined by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)), these Terms shall include TheraNest’s standard Business Associate Addendum, which shall be provided via email and is incorporated herein by reference. For customers who are data controllers or data processors (as those terms are defined under the EU General Data Protection Regulation, 2016/679 (the “GDPR”), these Terms shall include TheraNest’s standard Data Processing Addendum, which shall be provided via email and is incorporated herein by reference. In the event of a conflict between these Terms and the terms of the Business Associate Addendum or the Data Processing Addendum, the Business Associate Addendum or the Data Processing Addendum shall control. For customers who are neither a covered entity under HIPAA nor a data controller or a data processor under the GDPR, the Business Associate Addendum and the Data Processing Addendum are not incorporated into these Terms.
“TheraNest” and “Company,” “we,” “us,” “our,” or any other first person pronoun shall refer to the company TheraNest, LLC, a Limited Liability Company incorporated in the state of Delaware;
“User,” “you,” “your,” or any other second person pronoun shall refer to any person or entity accessing, using, or making purchases through the Services;
“User Data” shall refer to any data which Users upload or submit to the servers, website, or any other area of service, including but not limited to Protected Health Information (“PHI”);
“Services” shall collectively refer to all services offered by TheraNest including, but not limited to, access to its Software as a service (“SaaS”) which is a practice management and Electronic Health Record (“EHR”) software, payment processing, website, mobile application, all services associated with the Client Portal, the Add-On Services, or otherwise. Without limiting the foregoing, the term “Services” shall also include those optional add-on services offered by TheraNest, including, but not limited to, TheraNest’s Telehealth Platform and its Messaging Service (as such terms are defined herein).
“TheraNest Software” shall refer to the software provided to Users by TheraNest, its suppliers or partners, under license, in connection with the Services;
“Protected Health Information” and “PHI” shall refer to the protected health information as defined in HIPAA, 45 C.F.R. § 160.103; and
“HIPAA” shall refer to the Health Insurance Portability Accountability Act of 1996.
Changes to Terms of Service and Notices
TheraNest may modify the Terms at any time, under its discretion. Should there be any material changes to the Terms, TheraNest will attempt to notify Users by email within one week of the new terms, with the option to cancel within 14 days of the new effective date should terms not be acceptable. At the beginning of each set of Terms, the effective date shall be posted. TheraNest reserves the right to add, modify, or eliminate aspects, features or any functionality of Services from time to time, for the purposes of compliance with applicable laws and regulations, to effect improvements in security and functionality, to correct errors, or for other commercially reasonable purposes as deemed by TheraNest. Users agree that a User shall be deemed to have accepted the modifications hereto if such User: (i) is sent notice by email of the modifications and fails to cancel the Services within 14 days of the new effective date; or (ii) accesses the Services more than 14 days after the effective date. For the avoidance of doubt, notice by email is effective upon sending thereof to User’s email address as provided by User to Company.
In order to use Services, Users must be 18 years old, or older, and have the requisite power and authority to accept these Terms. If one is under 18 years of age, such person is strictly prohibited from using Services. Users further agree that as a condition to accessing TheraNest, you will submit to account verification as required by TheraNest, and provide only true and accurate identification documentation to TheraNest or its third party service providers to verify User’s age and other account related information.
People, businesses, or otherwise, may not access Services if they are a known or unknown competitor of Company, or if they have been previously banned from Services. If you are using Services on behalf of a company, entity, or organization, then you represent and warrant you are: an authorized representative of such organization; have the requisite authority to bind the organization to these Terms; and agree to be bound by these Terms on behalf of such organization.
TheraNest grants Users permission to use Services subject to all restrictions set out in these Terms. Use of Services is at User’s own risk, including the risk of exposure to offensive, indecent, inaccurate, objectionable, or otherwise inappropriate content.
TheraNest provides Services to Users, and Services may be interrupted, suspended, un-secure, modified, updated, discontinued, or unavailable in particular locations. This may happen without notice from Company, and Company shall not be held liable for any problems regarding Services availability. TheraNest shall not be liable for any interruption of Service, intentional or not, and Users understand they will not be entitled to any refunds of fees or other compensation for such interruption. Users agree that in the event of loss of any User Data, Company will not be liable for any purported damage or harm arising therefrom.
Fees and Billing
TheraNest provides Services for fees and other charges set forth on Company’s website, and in User’s subscription settings page. TheraNest may add new services for additional fees and charges, or prospectively amend fees and charges for its existing services. Users acknowledge it is their responsibility to ensure payment in advance for all paid aspects of the Services, and to ensure their credit or debit cards or other payment instruments accepted by Company continue to be valid and sufficient for such purposes. TheraNest may exercise its suspension or termination rights as provided in the Termination Section below, in the event of any payment delinquency.
TheraNest handles and processes credit card payment for fees associated with its Services. TheraNest acts as a marketplace to help its Users accept credit card payments from patients and clients. payment is subject to fees as determined by TheraNest and displayed to the subscriber. However, TheraNest reserves the right to alter, or change this fee, for any of its Users. Should a chargeback fee or service fee arise, such fee shall be non-refundable. All Users are solely responsible for any chargeback or service fees, and any original fees associated with such fees. TheraNest reserves the right, but is not obligated, to dispute any chargeback that may arise with one of its Users.
TheraNest may use third parties, such as Stripe, Vantage, and others for payment processing services. By using our credit card processing services, you agree to the Stripe Connected Account Agreement at Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”), https://stripe.com/legal. You also agree to the Vantage “Sub-Merchant Agreement,” found here: http://www.vantagecard.com/Media/Default/files/Vantage-ProFac-Submerchant-Agreeement.pdf.
As a condition of TheraNest enabling payment processing services through Stripe or any of our payment services, you agree to provide TheraNest accurate and complete information about you and your business, and you authorize TheraNest to share it and transaction information related to your use of the payment processing services provided by any of the payment services we use.
Fees and Billing
In order to use Services, Users must create a User Account and provide personal information for its creation. Only one person may use an account, and only one person or entity may own a User account. Users agree to only provide accurate, current and complete information about them as prompted by the signup form (“Registration Data”) and profile page, and to keep your Registration Data accurate, current and complete. Users must submit an account/tenant name to identify them to TheraNest in connection with their Account (“Tenant or Organization Name”). Users are solely responsible for remembering and maintaining the security of their User names and passwords. User must notify TheraNest of any unauthorized access to user Accounts. TheraNest may suspend, terminate, modify, or delete User accounts, with or without notice, to Users, at any time and for any reason. Users are expressly prohibited from creating names with false information, false names, false business names, or creating multiple User Accounts.
Users may delete their account, account content, and all other account information, at any time through the self serve portal, or by sending an email to TheraNest to the address below with the following subject line:
Subject: Account Termination
Appointment Reminder Messaging Service:
We offer SMS text and voice message appointment reminders as an optional add-on Service (“Messaging Service”) for an additional subscription fee.
The Messaging Service functionality within the Apps is only intended for persons located in the United States. By subscribing to and using the Messaging Service, you acknowledge and agree that you are using the Messaging Service from, and only for providing appointment reminders to persons within, the United States.
This Messaging Service may contain links and embedded content from third party websites, platforms, servers, APIs, and other environments not operated by TheraNest, including, but not limited to, Twilio. In choosing to subscribe to our Messaging Service, you acknowledge and agree to the terms of service set forth by Twillio that are applicable to customers. You may find a full copy of Twilio’s terms of service at https://www.twilio.com/legal/tos.
The Telephone Consumer Protection Act (“TCPA”) is a federal law regulating the way consumers are contacted by telephone, fax and text message. The TCPA applies to text and automated landline messages that you enable through the use of the Messaging Service. HIPAA also applies to the data and text messages and automated landline messages that you send.
In using the Messaging Service, you acknowledge, agree and understand that:
- You are the transmitter of all data and messages through the service and that we are acting at your direction as a technology conduit for the transmission;
- The appointment reminder data and messages are not secured by encryption and, therefore, it is possible that third parties may be able to access the data and messages.
- You will not transmit or allow to be transmitted any data or messages through the Messaging Service for which you do not have legally sufficient consent, permission, or authorization from the recipient of such data or messages as may be required by TCPA and HIPAA;
- You will routinely verify that recipients of SMS text messages through the Messaging Service are the subscribers of the wireless telephone numbers to which the messages are sent;
- In the event you have knowledge that a recipient of appointment reminders has revoked his or her consent, authorization or other permission as may be required for you to transmit such messages to such recipient, you (i) will immediately cease to utilize the Messaging Service to communicate with such recipient and deactivate any script or automated delivery of appointment reminders to such recipient and (ii) understand and agree that you are responsible for all liability for any failure to opt users out of the appointment reminders available through the Messaging Service; and
- TheraNest makes (i) no representations as to any default templates for appointment reminders available within the Messaging Service and (ii) assumes no responsibility for your use of the templates or any customization of content you implement into the templates. You are solely responsible for determining the legality of the default appointment reminder templates available through the Messaging Service and of the use of appointment reminders that have been customized by you for compliance with applicable laws and regulations, including, but not limited to HIPAA and TCPA.
- We offer a secure Telehealth Platform with live video and audio chat session capabilities as an optional add-on Service for an additional subscription fee.
- The Telehealth Platform is only intended for users located in the United States. By using the Telehealth Platform, you acknowledge and agree that you are using the Telehealth Platform from, and only for video and audio chat sessions with persons within, the United States.
- The Telehealth Platform may contain links and embedded content from third party websites, platforms, servers, APIs, and other environments not operated by TheraNest, including, but not limited to, ToxBox. In choosing to subscribe to our Telehealth Platform, you acknowledge and agree to the terms of service set forth by ToxBox that are applicable to customers and end-users. You may find a full copy of ToxBox’s terms of service at at https://tokbox.com/support/tos.
- You acknowledge and agree that it is your sole responsibility to use the Telehealth Platform in a manner fully compliant with applicable federal and state laws, including HIPAA and state privacy laws, laws governing your professional license, certification or registration, and state laws governing the provision of telehealth or telemental services. For the avoidance of doubt, TheraNest assumes no responsibility or liability for your use of the Telehealth Platform.
Communication and Data Retention
Users with User Accounts must submit an email address where they can receive emails from Company and Users, regarding communication in connection with Services. Users may opt out of communications by following the directions located at the bottom of each communication.
Sensitive information includes, but is not limited to: User financial information, email addresses, passwords, usernames, medical information, medical records, and social security numbers. Except as otherwise agreed by the parties, TheraNest will keep sensitive information for the shortest possible duration that is reasonably necessary in order to carry out the task for which it was collected. TheraNest has taken all reasonable and appropriate security measures to ensure the security of sensitive information. Furthermore, any and all data and communications shall be retained to minimally meet any applicable legal or ethical reporting or document retention requirements.
TheraNest Intellectual Property
TheraNest owns all intellectual property connected to Services, including but not limited to its website, applications, or otherwise. This shall include visual interfaces, graphic design, website design, logo, application development, interactive features, compilation, technological code, software, Company hardware, and any method of compiling or analyzing Users’ Content. This shall be considered Company intellectual property, which is protected worldwide by copyrights, trademarks, trade secrets, and any other applicable intellectual property rights. These rights shall apply to property now existing or that which is created in the future by TheraNest. User shall not copy, reproduce, distribute, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of Company content on Services. Such unauthorized use may violate copyright, trademark, and communication regulations.
Users hereby automatically grant TheraNest a non-exclusive, worldwide, royalty-free, sub-licensable, and transferable license to use, reproduce, distribute, prepare derivative works of, and display the User Data solely for the purposes of providing the Services. Users agree that the license includes the right to copy, analyze and use any User Data as Company may deem necessary, or desirable, for purposes of debugging, testing, or providing support or development services in connection with the Services and future improvements to the Services. The license granted in this Section shall be referred to as the “Service Data License.” Users also hereby acknowledge the Service Data License granted to TheraNest with respect to Users’ Content will survive any termination, and permit TheraNest to: retain server copies of particular instances of Users’ User Data, including copies stored in connection with back-up, debugging, and testing procedures; and to enable the exercise of the licenses granted in this Section for any other copies or instances of the same User Data that you have not specifically deleted from the Service.
TheraNest shall be able to use any ideas or suggestions made by Users in connection with the Services, if Company chooses to do so. User is not entitled to any remuneration of any kind, under any circumstances, for such information. Any submitted suggestion shall provide TheraNest with complete ownership and any intellectual property rights arising therefrom. TheraNest shall be entitled to unrestrictive use of such information.
TheraNest Intellectual Property
As part of its services, TheraNest incorporates John Wiley and Sons, Inc. Practice Planners®. Copyright to all Practice Planners® are designed to provide accurate and authoritative information regarding relevant subject matter. This content is sublicensed with the understanding that the publisher is not engaged in rendering professional services or advice. If legal, accounting, medical, psychological, or other expert assistance is required, the services of a competent professional person shall be sought.
The Practice Planners® and all information therein are provided “as is” and express and implied warranties and representations of any kind, including any implied warranty of merchantability, fitness for any particular purpose, or quality, accuracy, completeness and/or suitability are disclaimed.
You are not entitled to any refund of any amounts paid for Practice Planners®, regardless of whether such amounts were paid in advance.
The following Copyright Policy (the “Policy”) explains how TheraNest respects the intellectual property rights (the “IP Rights”) of others and describes TheraNest’s policy concerning rules and regulations of its Company and Services. If anyone believes their IP Rights have been infringed, please contact TheraNest with contact information found in the Contact Information Section located at the end of this Policy.
- Changes to Policy. TheraNest may modify this Policy at any time, under its discretion. Should there be any material changes to the Policy, Users shall be notified with a one (1) month notice prior to the effective date of the new policy. It shall be posted on Services and on the Company mobile application. At the beginning of each set of Policies, the effective date shall be posted. Users agree the continued access of Services after the effective date, warrants their acceptance to the modifications.
- Prohibitions. TheraNest prohibits Users from uploading, posting, transmitting, or otherwise making available, any content that violates any IP Rights of any person, company, or otherwise. This prohibition shall apply to any of the Services including websites, web pages, applications, widgets, blogs, social networks, or otherwise. Any violations of US Copyright Law, shall subject offenders to its penalties to the fullest extent allowed under law. TheraNest reserves the right to terminate any User who is in violation of IP Rights of other users, persons, company, or otherwise. TheraNest requests Users adhere to these same policies. Pursuant to the Digital Millennium Copyright Act of 1998 (17 U.S.C. § 512) (the “DMCA”) and US Copyright Law. TheraNest may terminate Users’ access to Services, and use thereof, if Company deems User is repeatedly infringing the IP Rights of another User, person, company, or otherwise. TheraNest is not responsible for any errors in web based material and shall not be liable for any damages arising from the use of such material found on TheraNest’s website.
- DMCA. The DMCA and US Copyright Law provides the framework for owners of IP Rights who believe their material that is appearing in public infringes their IP Rights under US Copyright Law. It is TheraNest’s policy to respond to all notices and counter-notices that are in conformity with the requirements under 17 U.S.C. § 512(c)(3)). Notices and counter-notices must meet the then-current statutory requirements imposed under the DMCA. Please visit http://www.copyright.gov for up to date details of current DMCA legislation.
- Take-Down Notices. If one believes their IP Rights have been infringed upon by any materials in TheraNest’s Services, such person may submit a notification pursuant to the DMCA (17 U.S.C. §512(c)(3)) by sending a properly formatted take-down notice to Company at the address in Contact Information Section. Please include all required information, including:
- The electronic or physical signature of the owner of the copyright or a person authorized to act on the owner’s behalf;
- In sufficient detail, provide the copyrighted work that you claim has been infringed. If multiple copyrighted works on the websites are covered by a single notification, you may provide a representative list of such works on the websites; however, the representative list must still contain sufficient detail of the copyrighted works so that we can identify them;
- The URL or other specific location on the websites that contain the material that you claim to be infringing your copyright. You must provide us with reasonably sufficient information to enable us to locate the alleged infringing material, so that we can comply with your request to remove or deny access;
- Your name, address, telephone number, and email address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that you swear under penalty of perjury that the information contained in your notification is accurate and that you are the copyright owner or that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Response to Take-Down Notices. TheraNest shall take response to such DMCA notice, and will make a good faith attempt to contact any party believed to have infringed the IP Rights of another. DMCA infringement notices may be forwarded to the party who originally made the alleged infringed content available on Services.
- Counter-Notices. If you believe in good faith that your own copyrighted material has been removed from Services as a result of a mistake or misidentification, you may submit a written counter notification letter to Company pursuant to the DMCA (17 U.S.C. 512(g)(2-3)). If a counter-notice is received by TheraNest, Company may send a copy of such counter-notice to the original complaining party that Company may reinstate the removed content. Unless the alleged IP Rights holder files a court action against the party that provided the counter-notice, the removed content may be reinstated on Company’s Services. Counter-Notices require the following information:
- Your physical or electronic signature;
- Identification of the material that has been removed or disabled, and the location at which the material appeared before it was removed or disabled;
- A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
- Your name, address and telephone number; and
- A statement that you consent to the jurisdiction of the Federal District Court in which your address is located, or if your address is outside the United States, that you consent to the jurisdiction of the United States District Court for the Northern District of Alabama and a statement that you will accept service of process from the party, or party’s agent, that filed the notification of alleged copyright infringement.
- Contact Information. Should you require any further information regarding these policies, please contact:
1500 1st Avenue North, Suite L135
Birmingham, AL 35203
Email: firstname.lastname@example.org; Subject: “Copyright Policy – DMCA Notification”
This contact information is for DMCA purposes only. Any other inquiries to the DMCA Agent will not be answered. Any material misrepresentations regarding copyright violations shall, as permitted by law, subject complainant to court costs and attorney fees.
Users hereby agrees not to post or upload any of the following prohibited Content:
- Content known by User to be false, misleading, or Content that encourages or promotes illegal activity;
- Content that is abusive, threatening, obscene, defamatory, or libelous;
- Content that harasses any other User, person, business, or person, in any way;
- Content that violates another person’s intellectual property rights;
- Content that solicits any private information, including passwords, or personal identification information;
- Content that is offensive to any User, person, or business, including, but not limited to: racism, bigotry, hatred, physical harm of any kind against any group, minority, or individual;
- Content promoting any business venture of the User, person, business, or otherwise;
- Content used to solicit information from minors or other protected classes;
- Content involving the transmission of junk mail, chain letters, or unsolicited mass mailing; or
- Content displaying obscene, pornographic, or sexually explicit material, of any kind.
User hereby agrees, while using Services, not to commit any of the following actions:
- Upload content or any information that could damage, disable, overburden, or impair any of TheraNest’s servers or networks;
- Attempt to gain any unauthorized access to other Users’ account, Company computer networks, systems or infrastructure, by any means;
- Attempt to gain access to other Users’ accounts, for any reason;
- Use data mining, robots, or other data gathering devices on or through Services;
- Frame or link to the Services without express permission;
- Attempt in any way to reverse engineer, decompile, interrupt, or disassemble, any part of Services or its security features;
- Modify, distribute, reproduce, copy, adapt, or create any derivative work in any way, of Service;
- In any way restrict other Users or persons from gaining access or creating accounts;
- Use any technology or tool that automatically retrieves, alters, or combines Company content or Services;
- Reverse engineer any content, Services, website, or application of Company and its Users;
- Breach TheraNest rights regarding intellectual property rights, or otherwise;
- Use the Services or content to transmit any computer viruses, Trojan horses, worms, or otherwise, that could potentially cause any damage to software or hardware of Users or Company;
- Use of the Services or content in any manner that violates applicable laws, including, but not limited to HIPAA and state privacy laws, TCPA, and state professional practice acts governing you, and state telehealth or telemental laws.
Limited Liability and Disclaimers
The following information applies to the maximum extent permitted under law. User rights are not limited beyond those they are rightfully entitled to. By using the Services, Users hereby agree to the following Terms, and Users forfeiting certain legal rights they may otherwise be entitled to you. If a User is uncertain of any of the following, it is suggested they consult a legal professional.
- Availability. TheraNest provides Services on an “as is” and “as available” basis for Users’ use. TheraNest does not guarantee Services will be available in any location for any User, or that Services will always be available at any given time. TheraNest does not warrant Services will be uninterrupted, timely, error-free, or secure. Furthermore, it does not warrant any defects will be corrected. TheraNest does not guarantee its website or applications will be free from viruses or other harmful components.
- Security. TheraNest makes every effort to keep its Services, Content, website, and application secure. TheraNest accepts no liability for any loss, disruption, or damage incurred by Users to its data, computer, or software, that is a result of unauthorized access by any person who has caused a loss due to any data breach or hacking, even if such breach or hack was the mistake of Company. Users are responsible for taking their own precautions to ensure the electronic process employed for accessing Services, website, or application, does not expose them to the risk of viruses, malicious computer code, Trojan horses, worms, or otherwise, that may interfere, infect, or damage their computers, software, or data. Furthermore, TheraNest limited liability shall extend should any Company computer, server, or software malfunction, and cause any Users any of the aforementioned losses. TheraNest has taken precautions to prevent any malfunction, however User hereby agrees to accept full liability for any loss, of any kind, should they occur.
- Software Updates. TheraNest may make software updates to it mobile application at any given time. In order to use Services, Users may be obligated to download the updated version of the applications. TheraNest may choose to make downloading the updated version of the application a required precedent to continued use of Services. However, TheraNest makes no guarantees any subsequent version of an application will work on Users mobile phone or devices. TheraNest is expressly not liable for any loss incurred due to Users inability to use Services due to the inability to use an updated version of the mobile application on their specific mobile device.
- Third Party Transactions. TheraNest does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Services, hyperlink, website, or any of its applications. Users hereby agree to hold third parties solely liable for any and all claims regarding such transactions with third parties. Any products or services purchased or otherwise acquired by a third party, are separate legal transactions solely between Users and the relevant third party, and in no way involve Company.
- Third Party Sites and Embedded Content. Services may contain links, and embedded content from, third party websites, servers, APIs, offline services, and online services or environments, not operated by TheraNest. TheraNest does not control these services. Linked sites may be provided as a service to Users, and does not imply any endorsement of the activities or content of these sites, nor any association with its operators. Users assume any and all risks, known or unknown, now existing or existing in the future, by following a link to a linked site.
- The Business Associate Agreement sets forth the safeguards used by TheraNest to prevent use or disclosure of Protected Health Information (“PHI”). Users understand and agree that they are responsible for maintaining any other administrative, technical, and physical measures required for appropriate information security with respect to PHI and otherwise comply with HIPAA.
- Limited Liability. Users assume any and all risk associated with using Company’s website, application, or Services. TheraNest, its parents, subsidiaries, affiliates, owners, directors, officers, employees, licensors, distributors, subcontractors, sub-licensees, independent contractors, and agents (collectively known as the “Company Parties”) shall not be liable for any direct, indirect, incidental, consequential, special, punitive, or exemplary damages, or losses of any kind. These include without limitation, loss of profits, business, goodwill, use, data, or other intangible losses, whether based in contract, tort, negligence, strict liability, or otherwise, which may be incurred in connection with the use, or inability to use, Services, termination, including interruption, inaccuracy, error, or omission. Some jurisdictions do not allow the disclaimer of implied warranties, to that extent, the foregoing disclaimer may not apply to you. California residents hereby waive California Civil Code Section 1542, stating, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine. TheraNest, its suppliers, and distributors, shall not be liable for any loss or damage which is not reasonably foreseeable.
- Disclaimer. TheraNest expressly disclaims all warranties, express or implied, including but not limited to: implied warranties of merchantability; fitness for a particular purpose; non-infringement; warranties of title and accuracy; warranties regarding products and services offered by all businesses listed on Company’s website; and warranties in the course of dealing, performance or usage of trade.
- Foreign Disclaimer. TheraNest is a United States service provider. TheraNest makes no representation that any aspect of the Service is appropriate or available for use outside of the United States. Those who access the Service from other locations are responsible for compliance with all applicable laws.
- Maximum Liability. TheraNest’s maximum aggregate amount of liability for any loss or damage a User experiences in Company’s content, Services, website, application, or otherwise, shall not exceed $100.
Limited Liability and Disclaimers
- Class Action Waiver and Other Restrictions. Arbitration shall proceed solely on an individual basis without the right for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of others. The arbitrator’s authority to resolve and make written awards is limited to claims between Users and Company alone. Claims may not be joined or consolidated unless agreed to in writing by all parties. 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. Notwithstanding any other provision in these Terms (including the “Continuation” provision below), and without waiving either party’s right of appeal, if any portion of this “Class Action Waiver and Other Restrictions” provision is deemed invalid or unenforceable, then the entire Arbitration Provision (other than this sentence) shall sever and continue.
- Indemnification. Users agree to indemnify, defend, and hold harmless, TheraNest and Company Parties, from and against all: claims; injuries; damages; obligations; losses; lawsuits; attorney fees; legal fees or filing fees from any and all claims or demands made by any party related to Users’ use of Service, website, or applications; violations of these Terms, goods and services purchased; or misuse of User accounts. TheraNest reserves the right to execute the exclusive defense of any issues arising out of such indemnification. Users are expressly prohibited from settling such claims without the prior written Consent of Company.
- Non-Assignment. Users may not assign these Terms and this Agreement, or its User account without the prior written consent of TheraNest. Users may not transfer or sublicense any licenses granted by TheraNest in these Terms without the prior written consent of TheraNest. TheraNest may assign these Terms and this Agreement, in whole or in part, and all related rights, licenses, benefits and obligations, without restriction, including the right to sublicense any rights and licenses under these Terms and this Agreement.
- Independent Relationship. Users fully understand and accept in no way do these Terms, Services, or otherwise, create a joint venture, agency, partnership, or employment relationship with Company. TheraNest is not liable for any financial or other loss of Users in any way, on any transaction, under any circumstances. Users accept use of TheraNest’s Services often involves financial exchange, and the TheraNest shall bear no liability or responsibility therefor.
- Integration. Both parties agree these Terms are the complete and exclusive statement and the mutual understanding of the parties, and these Terms supersede and cancel all previous written and oral agreements and communications relating to the subject matter of this Agreement. Any waivers or amendments shall be effective only if made in writing and signed by an agent of the respective parties authorized to bind the parties.
- Severability. TheraNest’s failure to exercise, delay in exercising, any privilege, any power or any rights hereunder will not operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. If any provision of these Terms shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable.
- Arbitration Agreement. All claims and disputes arising under or relating to these Terms and Services are to be settled by binding arbitration in the state of Alabama or another location mutually agreeable to the parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees. Any such arbitration shall be conducted by an arbitrator experienced in commercial arbitration and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of diction.
- Notice to California Users. Under California Civil Code Section 1789.3, users of the Services are entitled to the following contact information: The Complaint Assistance Unit of the Division of Consumer Services at the California Department of Consumer Affairs may be contacted in writing or by telephone at:
400 R Street, Suite 1080
Telephone: (916) 445-1254, or (800) 952-5210
TheraNest may provide notice to you and obtain consent from you through: its website; by electronic mail at the electronic mail address associated with such User account; or by written mail communication to User at the address associated with their Account.
User must give all notices required or permitted under these Terms at the address below.
1500 1st Avenue North, Suite L135
Birmingham, AL 35203