Terms and Conditions of Use Agreement
1. THIS IS A BINDING AGREEMENT
1.1 Below are the terms that apply to all Subscribers of MyMedicalRecords.com, Inc. products and services. MyMedicalRecords.com provides you with secure, safe online storage for your important personal health and medical records, and other vital documents. You should familiarize yourself with these terms because they establish your rights and responsibilities as a Subscriber. We understand that the privacy and security of your personal records are important, and we use the most advanced security technology available to protect that privacy. However, please keep in mind that your records are only secure if you protect your password and change your password frequently. As you navigate our web site and use the services we offer, do not hesitate to contact us if you have any questions.
This Terms and Conditions of Use Agreement (Agreement) between you and MMR sets forth the general terms and conditions governing your use of the MyMedicalRecords.com site ("Site") and the products and services available on the Site. BY ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE MYMEDICALRECORDS.COM SITE.
1.2 As used in this Agreement, the terms “MyMedicalRecords”, “MyMedicalRecords.com”, “MMR”, “"we," "us," or "our" refer to MyMedicalRecords.com, Inc. As used in this Agreement, the term “Subscriber” is as defined herein.
1.3 The MyMedicalRecords.com web site (“MyMedicalRecords.com” or the “Site”) is an on-line information and communications service provided by MyMedicalRecords.com that contains health and health-related information about an individual or multiple related individuals that is submitted and/or entered by healthcare providers, healthcare organizations, and/or the individual and/or his or her designee.
(a) “Account” means the file of health and health-related information of a Subscriber and/or his or her family members that may be accessed, stored, used, and updated only by the Subscriber and/or his or her designee(s).
(b) “Disclosing Party” means the party that is disclosing health or health-related information so that it may be included in a Subscriber’s Account.
(c) “Subscriber” means an individual who executes or enters into this Agreement with MMR to maintain and store health and health-related information in a personal Subscriber Account that may be accessed at the MyMedicalRecords.com Site, and/or who accepts the terms and conditions set forth in this Agreement so as to be able to access and/or use the MyMedicalRecords.com Site. A Subscriber may access, use, store, and maintain his or her own information in the Subscriber’s Account as well as the health and health-related information of family members.
(1) A “Personal Subscriber” is a Subscriber who obtains his/her subscription individually and not through an employer or other organization (“Member Organization”) and pays for the subscription directly.
(2) A “Member Subscriber” is a Subscriber who obtains his or her subscription through a Member Organization which pays for the subscription on behalf of the Member Subscriber.
(3) The term “Subscriber” used hereinafter includes both Personal Subscribers and Member Subscribers.
(d) “User” means an individual whose health or health-related information is stored in a Subscriber’s Account and who accesses or uses the Site with the permission and at the discretion of the Subscriber.
1.5 The MyMedicalRecords.com Site is for personal and noncommercial access and use only. As a condition of continued use of the Site, Subscribers and Users agree to use the Site solely in accordance with the terms and conditions set forth in this Agreement, as amended from time to time without notice.
2. RIGHT TO USE, SITE CONTENT, GENERAL INFORMATION
2.1 MMR hereby grants to the Subscriber and Users the right to access, view, and use the Site, subject to the terms and conditions of this Agreement. MMR reserves the right to add new features to the Site and remove current features from the Site without notice. The Subscriber and/or a User may download and/or print a copy of the information stored in their respective Accounts from the Site for personal use only and, when appropriate, in a manner consistent with Section 8 (Copyright).
2.2 MMR NEITHER PRACTICES MEDICINE NOR DISPENSES MEDICAL SERVICES.
2.3 The content on the MyMedicalRecords.com Site and in Subscribers’ Accounts, including but not limited to, text, graphics, images, information obtained from third parties, links, and other material (“Content”) is intended for informational and educational purposes only.
2.4 The Content on the MyMedicalRecords.com Site should not be considered medical or health advice. Nothing on the Site is intended to be used for medical diagnosis or treatment, or to suggest a course of treatment for a particular Subscriber or User. The Content is not intended to be a substitute for professional medical advice, diagnosis, or treatment.
2.5 Subscribers and Users should never disregard professional medical advice or treatment or delay seeking professional medical advice or treatment because of something on the MyMedicalRecords.com Site. The Content on the MyMedicalRecords.com Site should not be used in place of a visit, call, consultation, or advice to, with, or from a qualified healthcare provider, including a personal physician.
2.6 Information that is obtained from the MyMedicalRecords.com Site is not exhaustive, should not be considered complete, and does not cover all diseases, ailments, physical or mental conditions, or their treatment. The advice of the Subscriber’s or User’s physician and/or any other qualified healthcare provider should be obtained directly from that physician or provider as appropriate. ANY QUESTIONS ABOUT ANY MEDICAL CONDITION OR TREATMENT FOR ANY CONDITION SHOULD BE DIRECTED TO YOUR PHYSICIAN OR A QUALIFIED HEALTHCARE PROVIDER.
2.7 MMR is not a covered entity as that term is defined in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and is not required to comply with its requirements.
3. ACCESS TO AND USE OF THE SITE BY SUBSCRIBERS AND USERS
3.1 Access to and use of the MyMedicalRecords.com site is available on a pre-paid annual or monthly subscription basis.
(a) The Subscription Fee to access and use the MyMedicalRecords.com Site and to establish an Account is defined in the Enrollment section of the MyMedicalRecords.com Site. Subscribers may register on the MyMedicalRecords.com Site for an Annual or a Monthly Subscription in accordance with Paragraph 3.1(b) (Subscription Period) hereinafter. Member Subscribers are provided a Monthly Subscription during the term of their relationship with the Member Organization.
(b) In the case of an Annual Subscription, the Subscriber will be entitled to access and use the MyMedicalRecords.com Site for an Initial Term of one (1) year from the date of registration provided the Subscriber and any Users of the Subscriber’s Account remain in compliance with the terms and conditions of this Agreement. In the case of a Monthly Subscription, the Subscriber will be entitled to access and use the MyMedicalRecords.com Site for an Initial Term of one (1) month from the date of registration provided the Subscriber and any Users of the Subscriber’s Account remain in compliance with the terms and conditions of this Agreement.
(c) This Agreement will be automatically renewed for a Renewal Term of an additional one (1) year in the case of an Annual Subscription or for one (1) month in the case of a Monthly Subscription at the end of the Initial Term and at the end of each automatic Renewal Term thereafter, unless this Agreement is terminated in accordance with Paragraphs 5.3, 5.4, and 5.5 herein.
(d) By registering as a Personal Subscriber and/or registering Users within the Personal Subscriber’s Account on MyMedicalRecords.com, each Personal Subscriber authorizes MMR to charge the Personal Subscriber’s credit card for the amount of the Subscription Fee within 24 hours of registration. The Subscription Fee will be charged on the first day of the Initial Term and the first day of each Renewal Term.
(e) MMR reserves the right to charge an additional $1.25 per each additional one-quarter (1/4) gigabyte of storage in a Personal Subscriber’s Account once the total storage in that Account has exceed one-half (1/2) gigabyte.
(f) MMR reserves the right to charge or change Subscription Fees, surcharges, and/or other fees at any time upon thirty (30) days prior written notice.
3.2 Each Subscriber and User may enter or upload, maintain, and store information, including copies of documents, records, images, and information submitted to the Subscriber by healthcare providers or other healthcare organizations, to a personal, secure, and unique Account established for the Subscriber. MMR, or a third party acting on behalf of MMR, will electronically store and maintain Subscribers’ Accounts on servers at MMR or at the site of a third party acting on MMR’s behalf.
(a) A Subscriber may elect to subscribe to MMR's Personal Touch Service. A description of MMR's Personal Touch Service and the additional charges associated with the Personal Touch Service are presented in MMR's Personal Touch Service Additional Terms and Conditions which is attached hereto and incorporated herein as Exhibit A.
3.3 Each Subscriber Account can be tailored by the Subscriber to upload, maintain, and store health and health-related information for one or more members of the Subscriber’s family for access and use by the Subscriber and the family members on the Subscriber’s Account.
3.4 Whenever a Subscriber’s information is submitted to or entered in the Subscriber’s Account, that information will be communicated using encryption technology called Secure Socket Layer ("SSL") encryption software. However, MMR cannot and will not guarantee that: (a) the information, during its transmission to a Subscriber’s Account, will be protected against loss, misuse or alteration by third parties; or (b) access to Subscribers’ Accounts will be uninterrupted; or (c) SSL encryption cannot be breached.
3.5 It is the responsibility of each Subscriber to ensure that no unauthorized person has access to the Subscriber’s User ID and Passwords. It is each Subscriber’s sole responsibility to control the dissemination and use of the Subscriber’s User ID and Passwords, authorize, monitor and control access to and use of the Subscriber’s Account, and promptly inform MMR of any need to deactivate or change the Subscriber’s User ID and/or Passwords. MMR cannot and will not assume any responsibility or liability for any information submitted to a Subscriber’s Account or any information that is used or misused whether submitted, used, or misused by (a) the Subscriber; (b) Users on the Subscriber’s Account; (c) the Subscriber’s designee; (d) healthcare providers; (e) other healthcare organizations; (f) other third parties; or (g) Member Organizations, whether or not acting on the Subscriber’s behalf.
3.6 The Subscriber understands and agrees, consents, and authorizes: (a) his or her individually identifiable health information and that of any of the Users on the Subscriber’s Account to be stored, entered, and maintained on the MyMedicalRecords.com Site in accordance with the terms of this Agreement; and (b) the Subscriber, and anyone with the Subscriber’s MyMedicalRecords.com User ID and Password, can access, view, add, revise, and/or delete information from the Subscriber’s Account; and (c) the Subscriber, and anyone with the Subscriber’s User ID and Emergency Password, can access and view information stored in the Subscriber’s Emergency Folder and in one or more of the Subscriber’s Folder(s) if such Folder(s) is marked “Accessible”.
3.7 The Subscriber hereby grants MMR, its employees, officers, directors, agents, and contractors, and all other persons or entities involved in the operation of MMR or of the Site the right to access, transmit, receive, monitor, retrieve, store, maintain, and use the information in the Subscriber’s Account to operate the Site, including but not limited to converting documents received on the Subscriber’s behalf to an electronic format, printing and delivering personal Emergency Cards and Stickers, and maintaining the Subscriber’s Account.
3.8 Subscribers to MyMedicalRecords.com may also upload or submit by e-mail or facsimile their personal health information and medical records, X-rays and other personal medical images, and other health-related information to their respective Accounts. To the extent permitted by law, any images submitted to MMR for uploading to a Subscriber's Account will become the property of MMR and will not be returned. MMR assumes no responsibility for the quality of X-rays or other personal medical images reproduced on the MyMedicalRecords.com Site or for medical decisions which are based on X-rays, EKGs, or other personal medical images archived on the MyMedicalRecords.com Site.
3.9 The entity or individual, including any Subscriber, that submits or enters health or health-related information into a Subscriber's Account is solely responsible for that information's accuracy and completeness. Each Subscriber is responsible for reviewing information in his or her Subscriber’s Account as well as any documents produced from MMR or the MyMedicalRecords.com Site such as Emergency Cards and Stickers and notifying MMR, or a third party designated by MMR, of any errors.
4. SUBSCRIBERS’ AND USERS’ RESPONSIBILITIES
4.1 Subscribers and Users agree:
(a) to maintain all equipment required for access to and use of the MyMedicalRecords.com Site, other than equipment owned or operated by MMR or its affiliates and vendors;
(b) to maintain the security of User IDs, Passwords, and other confidential information relating to the Subscriber’s MyMedicalRecords.com Account;
(c) not to introduce onto the Site or to users of the Site, directly or indirectly, computer viruses, worms, Trojan horses or other code that manifests or could potentially manifest contaminating or destructive properties;
(d) as to Personal Subscribers and their associated Users, to be responsible for all charges resulting from the access and use of the Subscriber’s Account, including any unauthorized access and use, if any;
(e) to notify MMR as soon as reasonably practicable of any real or suspected unauthorized use of the Subscriber’s Account;
(f) to comply with instructions provided by MMR for using, maintaining, or correcting the Subscriber’s Account; and
4.2 Each Subscriber and User is responsible for the communications submitted to or entered into the Subscriber’s Account and their respective access and use of the MyMedicalRecords.com Site. A Subscriber, User, and/or a Subscriber’s designee may not, under any circumstances, do any of the following:
(a) transmit any information that is libelous or defamatory;
(b) transmit any message, data, image or program that is indecent, obscene or pornographic;
(c) transmit any message, data, image or program that would violate the property rights of others, including unauthorized copyrighted materials, trade secrets or other confidential proprietary information and trademarks or service marks used in an infringing manner;
(d) use the MyMedicalRecords.com Site to threaten, harass, stalk, abuse or otherwise violate the legal rights, including rights of privacy and publicity, of others;
(e) intercept or attempt to intercept the transmission of files or other private communications not intended for the Subscriber;
(f) send e-mails to other Subscribers or Users of the MyMedicalRecords.com Site for any purpose other than personal communication;
(g) use the MyMedicalRecords.com Site to advertise or offer, on an unsolicited basis, to sell goods or services to other Subscribers or Users or use the Site for purposes of distributing unsolicited messages to one or more individuals;
(h) upload or download files that contain software or other material protected by intellectual property laws, privacy laws, or publicity laws, or any other applicable law unless personally owned or controlled or unless the necessary consent(s) to use, access, and/or communicate such files has been received;
(i) upload information, documents, and/or files that contain viruses, worms, Trojan horses, corrupted data or other code that manifests or potentially could manifest contaminating or destructive properties;
(j) use the MyMedicalRecords.com Site in such a manner as to affect adversely the availability of its resources to others;
(k) falsely or fraudulently purport to be an employee or agent of MMR;
(l) cause disruptive incidents;
(m) fail to comply with applicable laws and regulations while using or accessing the MyMedicalRecords.com Site; or
(n) post or transmit any message or information that is harmful, threatening, abusive or hateful. MMR reserves the right to take any action as it deems appropriate in cases where the MyMedicalRecords.com Site is used to disseminate statements that are deeply and widely offensive and/or harmful.
4.3 Each time a Subscriber or User uploads or posts information, data, a document, or a file to the MyMedicalRecords.com Site, the Subscriber or User, as applicable, represents and warrants that he or she owns or otherwise controls the rights to the information, data, document, or file, or that he or she has the necessary consents to upload or post it.
4.4 You represent and warrant that you are at least 18 years of age and that you possess the legal right to enter into this Agreement and to use the MyMedicalRecords.com Site in accordance with this Agreement.
4.5 As to Personal Subscribers, you agree to be financially responsible for the use of the MyMedicalRecords.com Site and for use of your Account by others, including minors for whom you have responsibility and/or who are living with you and for other immediate family members living with you.
4.6 You further understand and agree to comply with the responsibilities and obligations as set forth in this Agreement, and you understand and agree that failing to comply with any of the foregoing limitations or obligations may result in civil or criminal liability.
5. TERM; TERMINATION
5.1 The Effective Date of this Agreement is the date on which the Subscriber enrolls with the MyMedicalRecords.com Site.
5.2 Subject to payment of applicable fees, a Subscriber and the Users included in the Subscriber’s Account, if any, may access and use the MyMedicalRecords.com Site:
a. for a Term of one (1) year, commencing on the Effective Date if Subscriber purchases an “Annual Subscription;” or
b. for a Term of one (1) month, commencing on the Effective Date is Subscriber purchases a “Monthly Subscription”.
5.3 Either party may terminate the Subscriber’s right to use the Site and/or his or her Account and participation under this Agreement at any time, with or without cause, by giving written notice to the other party no later than thirty (30) days prior to the end of the Initial or any Renewal Term.
a. In the case of a Member Subscriber, this Agreement will terminate upon the Member Subscriber ceasing its affiliation with the Member Organization. The Member Subscriber may elect to continue to access and use his or her Account as a Personal Subscriber, in which case the obligations of Personal Subscribers will apply, including without limitation, the payment of applicable fees.
5.4 Notwithstanding anything to the contrary in this Agreement, MMR may immediately terminate this Agreement or suspend a Subscriber’s Account in the event that MMR determines, in its sole discretion, that a Subscriber or a User of the Subscriber’s Account has violated a material provision of this Agreement, including failing to make timely payment for the right to access and use the Site. MMR shall confirm such termination or suspension by subsequent written notice.
5.5 The termination of this Agreement will not affect any provision of this Agreement which, by its wording or its nature, is intended to remain effective and to continue to operate in the event of termination of this Agreement, and will not prejudice or affect the rights of any party against another with respect to any breach of the terms and conditions of this Agreement. Notwithstanding the foregoing, the provisions of Sections 8 (Copyright), 10 (Indemnification), 11 (Waiver, Release and Limitation of Liability), and 12 (Miscellaneous) will survive Termination of this Agreement.
5.6 In the case of an Annual Subscriber, MMR shall refund the excess, if any, of the annual subscription paid over the monthly subscription cost for each of the elapsed months, both full and/or partial, from the most recent starting date of the Annual Subscription. In the case of a Monthly Personal Subscriber, MMR shall refund the excess, if any, of the months paid in advance. No refund will be provided for the month in which the Agreement is terminated.
5.7 Upon the termination or expiration of this Agreement, MMR will retain data in a Subscriber’s Account pursuant to MMR’s standard data retention policy, but in no case less than thirty (30) days from the date of this Agreement's expiration or termination. After such period of retention, MMR shall destroy Subscriber's Account data.
7. MMR AND SITE OPERATIONS
7.2 MMR shall maintain technological systems, policies, and procedures to guard against unauthorized access to information that is transmitted electronically, including encryption and/or appropriate technical security mechanisms.
7.3 MMR shall not use, disclose, or process the information submitted for inclusion in a Subscriber’s Account except to the extent necessary for the proper management and administration of the information or in order to carry out the legal responsibilities of MMR.
7.4 Subscribers and Users are encouraged to use discretion while browsing the Internet on searches initiated from the MyMedicalRecords.com Site. Subscribers and Users understand that the MyMedicalRecords.com Site may link unintentionally to sites containing information that some people may find inappropriate or offensive. Links may also lead to sites that contain inaccurate information, false or misleading advertising, or information that violates copyright, libel or defamation laws.
7.5 MMR makes no representations concerning any effort to review any or all of the content of sites for which links are provided on the MyMedicalRecords.com Site. MMR does not in anyway operate, control or endorse any information, products or services provided by third parties through the Internet.
7.6 The inclusion of any link on the MyMedicalRecords.com Site does not imply an endorsement by MMR of any information, products, or services offered by the linked website, but is for MMR Subscribers’ and Users’ reference and convenience only.
7.7 Clicking on a link on the MyMedicalRecords.com Site which directs the Subscriber or User to an off-Site page or to another site is at the Subscriber’s or User’s own risk and subject to the terms and conditions of use of such sites.
7.8 The MyMedicalRecords.com Drug Interaction Tool. The MMR Drug Interaction Tool (the "Drug Interaction Service") is a service provided to MMR by Multum Information Services, Inc. ("Multum"). By accessing the Drug Interaction Service on the MyMedicalRecords.com Site, Subscribers and Users understand and agree that:
(a) MMR and Multum are not responsible for the results of your decisions resulting from the use of the Drug Interaction Service, including, but not limited to, your choosing to seek or not to seek professional medical care, or your choosing or not choosing a specific treatment based upon the Drug Interaction Service.
(b) Multum and MMR do not guarantee the accuracy, timeliness or completeness of the drug information provided through the Drug Interaction Service.
(c) MMR and Multum do not endorse drugs, practice medicine, diagnose patients, or recommend treatment or therapy. The Drug Interaction Service is an informational resource designed to provide Subscribers and Users with drug-specific information. The Drug Interaction Service is not a substitute for the care provided by licensed healthcare providers who should be consulted in all instances.
(d) The absence of a warning for a given drug or drug combination in no way should be construed to indicate that the drug or drug combination is safe, effective or appropriate.
(e) MMR and Multum do not assume any responsibility for any aspect of healthcare services administered or not administered with the aid of information the Drug Interaction Service. In addition, the drug information contained herein may be time sensitive and should not be utilized as a reference resource beyond the date hereof.
7.9 MMR cannot and will not review communications and materials posted or uploaded to the MyMedicalRecords.com Site for accuracy or completeness, and MMR is not responsible for the content of such communications and materials.
7.10 MMR reserves the right to remove or block communications or materials that MMR determines, in its sole discretion, to (a) be abusive, libelous, defamatory or obscene, (b) be fraudulent, deceptive or misleading, (c) violate a copyright or trademark or other intellectual property right of another, (d) contain or have attached a program, virus, worm, or other device or code that could pose a security risk to MMR or the MyMedicalRecords.com Site, or (e) be offensive or otherwise unacceptable to MMR.
8.1 All content on the MyMedicalRecords.com Site, including but not limited to, all graphs, graphics, photographs, text, sounds, data, and audio and video clips, is the exclusive property of MMR, its licensors, or its content suppliers, and is protected by U.S. and international copyright laws. The compilation, collection, selection, arrangement, assembly and coordination of all content available on the Site is the exclusive property of MMR and protected by U.S. and international copyright laws.
8.2 All information is deemed the exclusive property of the Disclosing Party prior to uploading or entering any information into an individual Subscriber’s Account.
8.3 Except as provided in Section 3.8 herein or otherwise expressly agreed to in writing, disclosure of any information to the MyMedicalRecords.com Site does not transfer legal title of such information to MMR.
8.4 MMR is entitled to non-exclusive possession of the information submitted to or entered into a Subscriber’s Account subject to the terms of this Agreement. The right to possess such information will be automatically terminated upon the expiration or termination of this Agreement unless (a) otherwise agreed to in writing; or (b) return or destruction of the information is not feasible, in which event the right of possession is limited to possession for the purpose(s) which makes return or destruction of the information not feasible.
8.5 Information on the MyMedicalRecords.com Site may be displayed, reformatted, and/or printed for the Subscriber’s or User’s personal, non-commercial use only. Information on the MyMedicalRecords.com Site may not be reproduced, retransmitted, distributed, disseminated, sold, published, broadcast, or circulated to or for anyone. Any copy made of information obtained through the MyMedicalRecords.com Site must include the copyright notice.
8.6 The MyMedicalRecords.com Site and any additional sites that are owned or controlled by MMR are trademarks of MMR and are protected by state and federal laws. Any unauthorized use of trademarks appearing on the Site may constitute a violation of law, which could result in both civil and criminal penalties.
9. DISCLAIMER; NO WARRANTIES
9.1 The MyMedicalRecords.com Site is provided "AS IS" and "AS AVAILABLE" without warranty of any kind, either express or implied, including but not limited to, warranties of merchantability, fitness for a particular use or purpose, title, infringement, accuracy, reliability, completeness, timeliness, usefulness, adequacy or suitability of the Content.
9.2 MMR cannot and will not warrant against human and machine errors, omissions, delays, interruptions or losses, including loss of data or inability to access data. Further, MMR cannot and does not warrant or guarantee that the functions or services performed on the MyMedicalRecords.com Site will be uninterrupted or error-free, or that defects in the MyMedicalRecords.com Site will be corrected.
9.3 MMR cannot and will not guarantee that any one or all of your healthcare providers will transmit all or any portion of your medical records or other health information. You should not rely exclusively on the MMR Content to describe accurately and completely your past, present, or future physical or mental health or condition or the provision of health care to you.
9.4 MMR will not independently and separately verify the truth and accuracy of information supplied by your healthcare providers or entered by you. Information that is submitted by your healthcare providers or entered by you or your designee will be considered by MMR as accurate and complete. You and your healthcare providers are solely responsible for identifying and correcting any and all errors in information stored oN the MyMedicalRecords.com Site on your behalf.
9.5 SUBSCRIBERS AND Users of the MyMedicalRecords.com Site are solely responsible for (a) implementing and maintaining adequate procedures and checkpoints to satisfy their particular requirements for accuracy of data input and output and (b) maintaining a means external to MMR for the reconstruction of any lost data.
9.6 You understand and agree that information communicated to or otherwise entered in the mymedicalrecords.com site will be communicated over local exchange, interexchange and internet backbone carrier lines and through routers, switches and other devices owned, maintained and serviced by third party local exchange and long distance carriers, utilities, Internet Service Providers and others, all of which are beyond the control of MMR. MMR cannot and will not assume any liability for or related to the delay, failure, interruption, interception or corruption of any data or other information communicated to or entered in the mymedicalrecords.com Site.
9.7 MMR cannot and will not guarantee or warrant that files available for downloading from this Site will be free of infection by viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties.
9.8 MMR CANNOT AND will not assume any liability for any of the Content on the Site. Reliance on any information presented on the Site is at THE USER’S own risk. MMR reserves the right to change or discontinue any aspect or feature of the Site from time to time without notice.
9.9 Information entered by a subscriber OR USER or provided by his or her healthcare providers AND ORGANIZATIONS will be used by MMR only for THE FOLLOWING purposes:
(A) providing subscriberS AND USERS the ability to ACCESS AND use the MyMedicalRecords.com site via a valid MyMedicalRecords.com USER ID AND passwordS.
(B) PROVIDING EMERGENCY ACCESS AND USE OF A SUBSCRIBER’S ACCOUNT TO HEALTH CARE PROVIDERS AND OTHERS WHO ACCESS THE MYMEICALRECORDS.COM SITE USING A VALID EMERGENCY LOGIN PASSWORD.
(C) aS NECESSARY FOR THE PROPER MANAGEMENT AND ADMINISTRATION OR IN ORDER TO CARRY OUT THE LEGAL RESPONSIBILITIES OF MMR.
9.10 MMR CANNOT AND WILL NOT BE LIABLE FOR THE AUTHORIZED OR UNAUTHORIZED USE, misuse, and/OR DISCLOSURE OF Information that is stored and/or maintained in a subscriber’s account, including the information contained within THE EMERGENCY FOLDER AND/OR ANY OF THE SECONDARY FOLDERS.
You agree to indemnify, defend, protect, release, and hold MMR, its officers, directors, employees, agents, and its affiliates, Information Providers, and Suppliers and their respective officers, directors, agents, and employees harmless from and against any and all losses, expenses, damages to persons or property, injuries or deaths of persons, liability, claims, liens, demands, and causes of action, including claims of infringement of copyright, trademark, or other intellectual property rights, and including the amounts of judgments, penalties, interest, court costs, and legal fees including reasonable attorney’s fees incurred by MMR, its affiliates or their respective officers, agents, and employees in defense of same (“Claims”) arising in favor of any person, corporation, or other entity, including the parties hereto and their employees, contractors, and agents in connection with this Agreement or any activity related to your Account or your use of the MyMedicalRecords.com Site. You understand and agree that such indemnity shall apply regardless of whether the Claims arise in whole or in part from the actual or alleged sole, comparative, concurrent, active, passive, contributory or gross negligence of MMR, its affiliates and their respective officers, directors, agents, and employees or by you or any other person accessing and/or using the Site and/or your Account.
11. WAIVER, RELEASE AND LIMITATION OF LIABILITY
11.1 You agree that neither MMR nor its officers, directors, employees, and agents, nor its affiliates, Information Providers, or Suppliers and their respective officers, directors, employees, and agents shall have any liability to you under any theory of liability or indemnity in connection with, arising out of, or in any way incident to this Agreement or any activity related to your Account or your access or use of the MyMedicalRecords.com Site. You hereby release and forever waive any and all claims you may have against MMR, its officers, directors, employees, and agents and its affiliates, Information Providers, and Suppliers and their respective officers, directors, employees, and agents for losses or damages you sustain in connection with your use of the MyMedicalRecords.com Site.
11.2 Notwithstanding the foregoing paragraph, the total collective liability of MMR, its officers, directors, employees, and agents, and its affiliates, Information Providers, and Suppliers and their respective officers, directors, employees, and agents, if any, for losses or damages will not exceed the fees paid during the immediately preceding one (1) calendar year by the Subscriber for the particular information or service provided. All other damages, direct or indirect, special, incidental, consequential or punitive, including but not limited to, lost profits or damages resulting from lost data or business interruption arising from any use of or inability to use any Content or other parts of the MyMedicalRecords.com Site, are hereby excluded even if MMR, its officers, directors, employees, and agents and its affiliates, Information Providers, and Suppliers and their respective officers, directors, employees, and agents have been advised of the possibility of such damages.
12. BINDING ARBITRATION.
A. Purpose: If you have a Dispute (as defined below) with MMR, you or MMR may elect to arbitrate that Dispute in accordance with the terms of this Arbitration Provision rather than litigate the Dispute in court. Arbitration means you will have a fair hearing before a neutral arbitrator instead of in a court by a judge or jury.
B. Definitions: As used in this Provision, the term “Dispute” means any dispute, claim or controversy between you and MMR, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence or any other intentional tort), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Provision (with the exception of the enforceability of the class action waiver clause provided in Section E(2) below). “Dispute” is to be given the broadest possible meaning that will be enforced. As used in this Provision, “MMR” means MyMedicalRecords.com, Inc., its officers, directors, employees and agents, and all entities using the brand name “MyMedicalRecords”. As used in this Provision, the term “Arbitration Provision” means all the terms of this Section 13.
C. Initiation of Arbitration Proceeding/Selection of Arbitrator: If you or MMR elect to resolve your Dispute with MMR through arbitration pursuant to this Arbitration Provision, the party initiating the arbitration proceeding may select from the following arbitration organizations, which will apply the appropriate rules for consumer claims to arbitrate the Dispute:
1. American Arbitration Association (“AAA”), 335 Madison Ave., Floor 10, New York, NY 10017-4605, 1-800-778-7879, www.adr.org
2. USA&M Portland, Oregon, 1000 S.W. Broadway, Suite 1710, Portland, OR 97205, (503) 223-2671, www.usam-oregon.com
3. National Arbitration Forum (“NAF”), P.O. Box 50191, Minneapolis, MN 55405-0191, 1-800-474-2371, www.arbitration-forum.com
D. Arbitration Procedures: Because the service provided to you by MMR concerns interstate commerce, the Federal Arbitration Act (“FAA”), not state arbitration law, will govern the arbitrability of all Disputes. However, applicable federal law or the law of the state where you receive the service from MMR may apply to and govern the substance of any Disputes. Any state statutes pertaining to arbitration, however, will not be applicable under this Arbitration Provision.
If there is a conflict between this Arbitration Provision and the rules of the arbitration organization chosen, the rules contained in this Arbitration Provision will govern. If the arbitration organization that you selected will not enforce this Arbitration Provision as written, it cannot serve as the arbitration organization to resolve your dispute with MMR. If this situation arises, the parties shall agree on a substitute arbitration organization. In the event that the parties are unable to agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint a service that will enforce the Provision as written. If there is a conflict between this Arbitration Provision and the rest of the Subscriber Agreement, this Arbitration Provision will govern.
You and MMR agree that a single arbitrator will resolve the Dispute. You should know that participating in arbitration may result in limited discovery depending on the rules of the arbitration organization that is chosen to resolve the Dispute. The arbitrator will apply applicable statues of limitation (as modified by this Arbitration Provision), will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information, including the use of protective orders to prohibit disclosure outside of the arbitration, if requested to do so by you or MMR.
The arbitrator will make any award in writing but need not provide a statement of reasons unless one is requested by a party. Upon a request by you or MMR, the arbitrator will provide a brief statement of the reasons for the award. An award rendered by the arbitrator may be entered in any court having jurisdiction over the parties.
If an award granted by the arbitrator exceeds Seventy-Five Thousand Dollars ($75,000.00), either party can appeal that award to a three-arbitrator panel administered by the same arbitration organization. The members of the three-arbitrator panel will be selected according to the rules of the arbitration organization. The party wishing to appeal the decision of the single arbitrator shall have thirty (30) days from the date of entry of the written arbitration award to notify the arbitration organization, through a written notice of appeal, that it is exercising its right to appeal. The arbitration organization will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel shall be final and binding, except for any appellate right which exists under the FAA.
1. YOU MUST CONTACT MMR WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE, OR YOU WAIVE THE RIGHT TO PURSUE A CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.
2. ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE IS NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS-ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS SIMILARLY SITUATED.
F. Location of Arbitration: The arbitration will take place at a location, convenient to you, in the area where you receive the service from MMR.
G. Payment of Arbitration Fees and Costs: MMR WILL ADVANCE ALL ARBITRATION FILING FEES AND ARBITRATOR’S COSTS AND EXPENSES UPON YOUR WRITTEN REQUEST. YOU ARE RESPONSIBLE FOR ALL ADDITIONAL COSTS THAT YOU INCUR IN THE ARBITRATION, INCLUDING, BUT NOT LIMITED TO ATTORNEYS OR EXPERT WITNESSES. IF THE ARBITRATION PROCEEDING IS DECIDED IN MMR’S FAVOR, YOU SHALL REIMBURSE MMR FOR THE FEES AND COSTS ADVANCED TO YOU ONLY UP TO THE AMOUNT THAT YOU WOULD HAVE PAID TO FILE A CASE REGARDING YOUR DISPUTE WITH MMR IN THE STATE COURT WHERE YOU RECEIVE THE SERVICE FROM MMR. IF THE ARBITRATION PROCEEDING IS DETERMINED IN YOUR FAVOR, YOU WILL NOT BE REQUIRED TO REIMBURSE MMR FOR ANY OF THE FEES AND COSTS ADVANCED BY MMR. IN THE EVENT A PARTY ELECTS TO APPEAL AN AWARD TO A THREE-ARBITRATOR PANEL, THE PREVAILING PARTY IN THE APPEAL IS ENTITLED TO RECOVER ALL REASONABLE ATTORNEYS’ FEES AND COSTS INCURRED IN THAT APPEAL. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS ARBITRATION PROVISION, MMR WILL PAY ALL FEES AND COSTS WHICH IT IS REQUIRED BY LAW TO PAY.
H. Severability: If any clause within this Arbitration Provision (other than the class action waiver clause identified in Section E(2) above) is found to be illegal or unenforceable, that clause will be severed from the Arbitration Provision, and the remainder of the Arbitration Provision will be given full force and effect. If the class action waiver clause is found to be illegal or unenforceable, the entire Arbitration Provision will be unenforceable, and the dispute will be decided by a court.
In the event that this entire Arbitration Provision is determined to be illegal or unenforceable for any reason, or if a claim is brought in a Dispute that is found by a court to be excluded from the scope of this Arbitration Provision, you and MMR have each agreed to waive, to the fullest extent allowed by law, any trial by jury.
I. Exclusions from Arbitration: YOU AND MMR AGREE THAT THE FOLLOWING WILL NOT BE SUBJECT TO ARBITRATION: (1) ANY CLAIM FILED BY YOU OR BY MMR THAT IS NOT AGGREGATED WITH THE CLAIM OF ANY OTHER SUBSCRIBER AND WHOSE AMOUNT IN CONTROVERSY IS PROPERLY WITHIN THE JURISDICTION OF A COURT WHICH IS LIMITED TO ADJUDICATING SMALL CLAIMS; (2) ANY DISPUTE OVER THE VALIDITY OF ANY PARTY’S INTELLECTUAL PROPERTY RIGHTS; (3) ANY DISPUTE RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH UNAUTHORIZED USE, THEFT OR PIRACY OF SERVICE.
J. Continuation: This Arbitration Provision will survive the termination of your service with MMR.
13.1 Applicable Law. This Agreement is governed by and is to be construed according to the laws of the State of Delaware, without regard to that State’s conflicts of law principals.
13.2 Third Party Rights. The provisions of paragraphs 10 (Indemnification) and 11 (Waiver, Release and Limitation of Liability) are for the benefit of MMR and its officers, directors, employees, and agents, and its affiliates, Information Providers, Suppliers, and their respective officers, directors, employees, and agents. Each of these individuals or entities will have the right to assert and enforce those provisions directly against you on its own behalf.
13.3 Nonwaiver. MMR's failure to insist upon or enforce strict performance of any provision of this Agreement or to exercise any rights herein will not be construed as a waiver of any provision or relinquishment to any extent of MMR’s right to assert or rely upon such provisions or rights on any future occasion. Neither the course of conduct between the parties nor trade practice will act to modify any provision of this Agreement.
13.4 Assignment. MMR may assign its rights and obligations under this Agreement to any party at any time without notice. Commencing immediately upon such assignment, MMR will be relieved of any further obligation hereunder.
13.5 Notices. Any notice which may be or is required to be given under this Agreement must be in writing and must be sent by first class mail, fax, courier, as an electronic record attached to an e-mail or sent to the Subscriber’s Site message box. All notices will be effective upon receipt by the party at each party’s address as follows:
If by means of electronic mail, to the most recent e-mail address provided by the Subscriber at the time of registration or modification of the Subscriber’s profile.
If by means of first class mail, fax, or courier, to the Subscriber’s address on file in MMR's account information.
10100 Santa Monica Blvd, Suite 430
Los Angeles, CA 90067
ATTN: Chief Executive Officer
13.6 Severability. The provisions of this Agreement are severable, and in the event any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability will not in any way affect the validity or enforceability of the remaining provisions hereof, but such invalid or unenforceable provision will be deemed modified to the extent necessary to render it valid or enforceable, preserving to the fullest extent permissible the intent of the parties set forth herein.
13.7 Amendments. MMR reserves the right to amend this Agreement from time to time without notice. Such Amendment will be effective immediately upon either posting the Amendment or this Agreement as amended. A Subscriber’s or User’s continued access to or use of the MyMedicalRecords.com Site will be deemed the Subscriber’s conclusive acceptance of any and all Amendments and the most current amended Agreement.
13.8 Force Majeure. Neither Party will be liable for any performance failure or delay for any cause beyond that Party’s reasonable control.
13.9 Entire Agreement. This Agreement, as amended from time to time, constitutes the entire agreement and understanding between the parties with respect to the services, responsibilities, and obligations specified and agreed upon in this Agreement and supersedes all prior oral or written agreements and understandings between the parties with respect to such services, responsibilities, and obligations.
MMR's Personal Touch Service Additional Terms and Conditions
These MMR's Personal Touch Service Additional Terms and Conditions (Additional T&Cs) between you and MyMedicalRecords.com (MMR) sets forth the additional terms and conditions you agree to be bound by with respect to creating and updating your Personal Health Record ("PHR") in your Account (as that term is defined in MMR's Terms and Conditions of Use Agreement) on the MyMedicalRecords.com site ("Site"). YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THESE ADDITIONAL T&CS. IF YOU DO NOT WISH TO BE BOUND BY THESE ADDITIONAL T&C, MMR WILL NOT INITIALLY CREATE NOR WILL MMR UPDATE YOUR PERSONAL HEALTH RECORD ON THE MYMEDICALRECORDS.COM SITE.
Article 1: Your Duties
1.1 Enrollment. You must enroll in MMR's Personal Touch Service in any one of the ways described below:
(a) Directly through the website by subscribing to an MMR annual plan for MMR's Personal Touch Service; or
(b) By speaking with a MMR Customer Care Representative and providing the information requested of you so that the MMR Customer Care Representative can enroll you; or
(c) Upgrading to MMR's Personal Touch Service by selecting the service upgrade available to you as a current MMR Subscriber (as that term is defined in MMR's Terms and Conditions of Use Agreement).
1.2 Completing Forms. Once you have enrolled in MMR's Personal Touch Service, you:
(a) Must confirm your contact information, other Account information (such as your family members and emergency password), and the cost of MMR's Personal Touch Service with a MMR Customer Care Representative.
(b) Must sign a Patient Authorization Form for each healthcare provider or facility from which you want to obtain copies of health information.
(c) Send back to MMR each of the original, signed Patient Authorization Forms indicating which healthcare providers, if any, and which facilities if any, you want MMR to contact on your behalf and to collect your health information. MMR will retain all of your original signed Patient Authorization Forms in MMR's files as long as you subscribe to MMR's Personal Touch Service.
(d) Complete and return to MMR each PHR Status Acknowledgment Form that you receive from MMR within five (5) business days of your receipt of such PHR Status Acknowledgment Form. MMR will retain all of your PHR Authorization Forms in MMR's files as long as you subscribe to MMR's Personal Touch Service.
1.3 Payment for Services. Upon MMR's receipt of your signed Patient Authorization Forms, you agree to pay MMR:
(a) $179.95 on an annual basis for each year you use MMR's Personal Touch Service ("Personal Touch Subscription"). The annual Personal Touch Subscription includes:
(1) A subscription to MyMedicalRecords.com Personal Health Records for purposes of creating your Personal Health Record (PHR); and
(2) MMR's collecting health information from your authorized healthcare providers and/or facilities on your behalf; and
(3) MMR's creating and updating a PHR for up to two (2) adult family members (you and one other adult) and up to two (2) children (under 18 years of age). Such creation and regular uploading
(b) For each additional family member in excess of two (2) adults and two (2) children, $99.95 on an annual basis for each year you use MMR's Personal Touch Service ("Personal Touch Subscription") for such additional family member(s). The annual Personal Touch Subscription includes::
(1) A subscription to the MyMedicalRecords.com Personal Health Records for each additional family member; and
(2) MMR's collecting health information and updating the PHR with such additional family member's health information.
(c) Any additional fees you approve in advance that are charged by your healthcare providers (or a facility) to provide MMR with a copy of your health information.
(1) If MMR receives a bill or invoice from your healthcare provider(s) (or a facility), MMR shall provide you with complete information about the amount the healthcare provider or facility (as appropriate) has charged and receive your approval to incur those charges on your behalf before MMR accepts any health information the healthcare provider or facility sends to MMR to be uploaded into your PHR.
(2) If you approve the healthcare provider's or facility's additional charges, you shall pay such charges on the date of your approval. The additional charges will be billed to your credit card associated with your Account.
(3) If you do not approve the healthcare provider's or facility's additional charges, then MMR shall not request nor upload any health information received from that healthcare provider or facility into your PHR.
Article 2: MMR's Duties
2.1 Managing Enrollment. If you contact MMR's Customer Care Center to enroll in MMR's Personal Touch Service (instead of enrolling directly or choosing that option on the Site), MMR shall enter your information and enroll you in MMR's Personal Touch Service.
2.2 Establishing Your Service. Once you are enrolled in MMR's Personal Touch Service, a MMR Customer Care Representative shall:
(a) Contact you to confirm your enrollment in MMR's Personal Touch Service; and
(b) Confirm your contact information; and
(c) Confirm the cost of your MMR's Personal Touch Service;
(d) Email you a copy of the Patient Authorization Form that you will sign for each healthcare provider and/or facility from which you want MMR to collect your records; and
(e) Work with you to set up your basic Account information (other family members, if any, and emergency password).
2.3 Collecting and Uploading Your Records. Upon receipt of your completed Patient Authorization Form(s), MMR shall:
(a) Contact the healthcare provider and/or facility identified on each Patient Authorization Form(s) to collect your records; and
(b) Upload and populate your PHR with the records that are collected; and
(c) Send you a PHR Status Acknowledgment Form that lists the healthcare providers and/or facilities and the number of records received from each of them as such records are collected.
2.4 Storing Original Records. As long as your enrollment in MMR's Personal Touch Service is effective, MMR shall retain the original records sent from each of your authorized healthcare providers and/or facilities for the length of time specified in MMR's Document Retention Policy ("Retention Period"). At the conclusion of the Retention Period, MMR shall destroy such original records.
Article 3: Term and Termination of MMR's Personal Touch Service
3.1 Term of MMR's Personal Touch Service. These Additional T&Cs will become effective beginning on the date on which you enroll in MMR's Personal Touch Service and your credit card is charged for MMR's Personal Touch Service. These Additional T&Cs will automatically be renewed for successive one (1) year periods on the anniversary date of your enrollment unless these Additional T&Cs are terminated earlier in accordance with the terms herein.
(a) Renewal Charges. Your credit card will automatically be charged on the anniversary date of your initial enrollment in MMR's Personal Touch Service for so long as these Additional T&Cs remain in effect.
3.2 Your Right To Discontinue. You may discontinue MMR's Personal Touch Service at any time, with or without cause, by sending MMR written notice no later than thirty (30) days prior to the anniversary date of your initial enrollment in MMR's Personal Touch Service. No credits will be issued for any part of a year's enrollment.
3.3 MMR's Right to Discontinue. MMR may immediately terminate these Additional T&Cs and discontinue your enrollment in MMR's Personal Touch Service if MMR determines, in MMR's sole discretion, that you have violated a material provision of these Additional T&Cs, including that you have failed to make timely payment of any authorized charges associated with your enrollment in MMR's Personal Touch Service. MMR shall confirm any such termination by subsequent written notice.
3.4 Effects of Discontinuation.
(a) Document Retention. Upon the termination or expiration of these Additional T&Cs, MMR shall retain all original documents obtained during your enrollment in MMR's Personal Touch Service for the length of time specified in MMR's Document Retention Policy ("Retention Period"). At the conclusion of the Retention Period, MMR shall destroy such original documents.
(b) Continuation of MMR's Terms and Conditions of Use Agreement. The termination or expiration of these Additional T&Cs will not affect the MMR's Terms and Conditions of Use Agreement.
Article 4: Warranties and Disclaimers
4.1 Incorporation of Warranties and Disclaimers. Section 9 of MMR's Terms and Conditions of Use Agreement is incorporated herein in its entirety.