Last Updated: August 4, 2017
Welcome to EngenderHealth, which is operated by EngenderHealth, Inc. (“EngenderHealth”, “we”, “us” or “our”). Please read these Terms of Service (“Agreement”) carefully, as it constitutes legally binding terms and conditions and applies to your use of (a) engenderhealth.org, fistulacare.org, champions4choice.org, leadcollaborative.com, respond-project.org, acquireproject.org, and 3for1.org, and all corresponding sub domains, web pages and websites associated with the foregoing URLs, (b) EngenderHealth applications (e.g., mobile, web, console, desktop, device and other apps, browser-enabled portals and dashboards, etc.), which may be made available on the iOS, Android and/or other operating systems and platforms and (c) any other content, documentation, materials, applications, systems, features, functionality, software, information, products and services offered by EngenderHealth in connection therewith (collectively (i.e., the subsections (a), (b) and (c) above), the “Services”). This Agreement applies whether you are accessing the Services via a personal computer, a wireless or mobile device or any other technology or device (each, a “Device”). This Agreement does not cover other services, platforms, applications, websites or any corresponding content, information, features, programs, promotions or activities made available by any other company, person or entity, unless specifically stated.
IMPORTANT: DO NOT USE THE SERVICES FOR ANY CRISIS OR EMERGENCY MEDICAL OR HEALTH-RELATED NEEDS.
IMPORTANT: PLEASE SEE SECTION 20 OF THIS AGREEMENT FOR IMPORTANT DISCLAIMERS AND OTHER TERMS BEFORE PROCEEDING TO ACCESS OR USE THE SERVICES.
This Agreement shall remain in full force and effect while you use the Services. You may terminate your use of or registration for the Services at any time, for any reason, and EngenderHealth may terminate your use of or registration to the Services at any time, for any or no reason, with or without prior notice or explanation, and without liability or obligation to you or any third party.
We may modify this Agreement from time to time, and at any time, without notice to you, for any reason, in our sole discretion. We will post or display notices of material changes on the Services and/or notify you via electronic means, whether via e-mail, messaging or upon login or use of the Services about these changes; the form of such notice is at our discretion. Once we post or make them available on or in connection with the Services, these changes become effective immediately and if you use the Services after they become effective it will signify your agreement to be bound by the changes. We recommend that you check back frequently and review this Agreement regularly so you are aware of the most current rights and obligations that apply to you.
By using the Services, you represent and warrant that (a) you are 13 years of age or older and reside in the United States of America, its territories and possessions (the “U.S.”) and acknowledge and agree that certain features, activities, offerings, applications (“apps”) and other aspects of the Services may be subject to specific territorial requirements (e.g., a requirement you be located in specific jurisdiction to use a Service), heightened age and/or other eligibility requirements and restrictions (e.g., certain health or other similar content, donations, purchases, contests, promotions, etc.); (b) your access to or use of the Services does not violate any applicable law, rule or regulation; and (c) you shall make timely and satisfactory payment for any Services purchased by you. If you are a user between the ages of 13 and 18, please review this Agreement with your parent or guardian. Your parent or guardian should agree to this Agreement on your behalf and parental discretion is advised. If you provide any information that is untrue, inaccurate, not current or incomplete, or EngenderHealth suspects that such information is untrue, inaccurate, not current or incomplete, EngenderHealth has the right to suspend or terminate your registration (in whole or in part) and refuse any and all current or future use of the Services (or any portion thereof), in its sole discretion, with or without notice to you, and without liability or obligation to you or any third party.
4. USER REGISTRATION
In order to access and use the Services, we may require that you register for the applicable Services and have a unique username and password combination (“User Credentials”) and provide certain additional information, which may include, without limitation, your email address, legal name, date of birth, country of residence, zip code, mobile phone number, etc., and, for fee-based transactions and purchases (e.g., donations, subscriptions, one-time purchases, add-ons, additional features, upgrades, etc.), your physical address, telephone number(s), applicable payment data and information (e.g., credit card/debit card number and expiration date), etc. (collectively, a “User Account”). You represent and warrant that all registration and account information you submit is truthful and accurate and you shall maintain and promptly update the accuracy of such information. You may only have one User Account and are responsible for maintaining the strict confidentiality of your User Credentials, and you shall be responsible and liable for any access to or use of the Services by you or any person or entity using your User Credentials or Device, whether or not such access or use has been authorized by you or on your behalf, and whether or not such person or entity is your employee or agent, including, without limitation, any fee-based transactions. It is therefore critical that you do not share your User Credentials with anyone. You agree to immediately notify EngenderHealth of any unauthorized use of your User Credentials, User Account and/or Device, or any other breach of security, including, without limitation, in the event your Device is lost or stolen. It is your sole responsibility to (a) control the dissemination and use of your User Credentials, User Account and Device, (b) update, maintain and control access to your User Credentials, User Account and Device, and (c) cancel your User Account on the Services. We reserve the right to deny access, use and registration privileges to any User of the Services if we believe there is a question about the identity of the person trying to access any account or element of the Services. EngenderHealth shall not be responsible or liable for any loss or damage arising from your failure to comply with this Section 4.
5. THIRD PARTY PLATFORMS
6. LOCATION-BASED CONTENT AND PUSH NOTIFICATIONS
The Services may allow access to, or make available opportunities for you to view, and/or receive, certain content, products, services, information and other materials based, in whole or in part, upon your location (“Located Content”). In order to make Located Content available to you, the Services will determine your location using one or more points of data, reference and/or information associated with, among other things, your Device, including, without limitation, GPS, beacons, device software/features/services and other points of data, reference and information. If you have set your Device to disable GPS, Bluetooth, WiFi or other location determining or assisting software, features or services, or do not authorize the Services to access your location data, the Services may not be able to determine your location and you may not be able to access, view and/or receive Located Content. In addition, the Services may make use of push notifications to provide alerts, notifications, notices and other information, whether in connection with any access to and/or use of Located Content or any other content, products, services, information and other materials, and, as part of your use of the Services, you may be asked to accept or deny push notifications and/or other similar alerts depending upon your Device and its corresponding settings, parameters, features and functionalities. If you reject, deny or disable push notification or similar functionality, then you will not receive any push notifications and may not be provided with access to Located Content and/or other features and functionalities of the Services. If you accept push notification or similar functionality, push notifications will be automatically sent to you. If you no longer wish to receive push notifications on your Device from the Services, then you must disable same by using the settings on your Device.
7. PERSONAL INFORMATION
8. PROPRIETARY RIGHTS
8.1. Ownership. As between you and EngenderHealth, EngenderHealth owns, solely and exclusively, all right, title and interest in and to the Services and all content contained and/or made available on, through or in connection therewith (“Content”), and all such Content is protected, without limitation, under U.S. Federal and State, as well as applicable foreign laws, rules, regulations and treaties. The term “Content” includes, without limitation, all reports, manuals, studies, copy, text, audio/visual content, artwork, photographs, illustrations, graphics, logos, computer code, software, music (including the musical compositions therein), data, user interfaces, visual interfaces, information, materials, and all copyrightable or otherwise legally protectable elements of the Services, including, without limitation, the design, selection, sequence, look and feel, and arrangement of the Services, and any copyrights, trademarks, service marks, trade names, trade dress, patent rights, database rights and/or other intellectual property and/or proprietary rights therein (including, without limitation, with respect to any content contained and/or made available in any advertisements or information presented to you via the Services). Unless the context clearly requires otherwise or we explicitly set forth in writing, the term “Services” includes “Content” as well.8.2 You acknowledge and agree that all User Postings are the sole responsibility of the person from which such User Postings originated. This means that you are solely and entirely responsible for the consequences of all User Postings that you submit, upload, post, email, display, transmit or otherwise make available. User Postings do not reflect the views of EngenderHealth or its affiliates, and you understand that by using the Services, you may be exposed to other people’s User Postings that could be offensive, indecent or objectionable and, as such, EngenderHealth does not guarantee the accuracy, integrity, quality or content of any User Postings. Under no circumstances shall EngenderHealth be liable in any way for User Postings, including, without limitation, errors or omissions in any User Postings, or any loss or damage of any kind incurred as a result of any User Postings submitted, uploaded, posted, emailed, displayed, transmitted or otherwise made available.
8.2. Restrictions. The Services are to be used solely for your personal, non-exclusive, non-assignable, non-transferable and limited, non-commercial and non-business use and for no other purposes. You must not alter, delete or conceal any copyright, trademark, service mark or other notices contained on the Services, including, without limitation, notices on any Content you transmit, download, display, print, stream or reproduce from the Services. Except as expressly authorized by EngenderHealth and set forth in Additional Terms (e.g., Services that allow for the use of embeddable or viral features, applications, etc.), you shall not, nor shall you allow any third party (whether or not for your benefit or otherwise) to, reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third party website or platform), or otherwise use, any Content without the express, prior written consent of EngenderHealth or its owner if EngenderHealth is not the owner. Moreover, the framing or scraping of or in-line linking to the Services or any Content contained thereon and/or the use of webcrawler, spidering or other automated means to access, copy, index, process and/or store any Content made available on or through the Services other than as expressly authorized by us is writing in advance is prohibited. You further agree to abide by exclusionary protocols (e.g., Robot.txt, Automated Content Access Protocol (ACAP), etc.) used in connection with the Services. Any unauthorized or prohibited use of any Content may subject you to civil liability, criminal prosecution, or both, under applicable federal, state, local laws, or applicable foreign laws, rules, regulations and treaties. We require Users to respect our copyrights, trademarks, and other intellectual property rights and shall aggressively enforce same to the fullest extent of the law, including, without limitation, seeking criminal prosecution. We likewise respect the intellectual property of others. If you believe that the Services contain elements that infringe your copyrights in your work, please follow the procedures set forth in Section 11 below.
9. USER CONDUCT
You are solely responsible for your conduct in connection with the Services. We want to keep the Services safe and enjoyable for everyone and the use of the Services for unlawful or harmful activities is expressly prohibited. You represent, warrant and agree that, while using the Services, you shall not:
(a) intentionally or unintentionally engage in or encourage conduct that would violate any applicable local, state, national or international law, rule, regulation, judicial or government order or treaty or give rise to civil liability or violate or infringe upon any intellectual property, proprietary, privacy, moral, publicity or other rights of ours or of any other person or entity;
(b) submit, post, email, display, transmit or otherwise make available on, through or in connection with the Services any material or take any action that is or is likely to be unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or publicity rights, harassing, profane, obscene, vulgar or that contains explicit or graphic imagery, descriptions or accounts of excessive violence or sexual acts (including, without limitation, sexual language of a violent or threatening nature directed at another individual or group of individuals), contains a link to an adult website or is patently offensive, promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
(c) submit, post, email, display, transmit or otherwise make available on, through or in connection with the Services any material that you do not have a right to make available under any law, rule or regulation or under contractual or fiduciary relationships (such as inside information, proprietary or confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), or otherwise creates a security or privacy risk for any other person or entity;
(d) intentionally or unintentionally engage in or encourage conduct that affects adversely or reflect negatively on EngenderHealth or its affiliates, or any of their respective successors, assigns, programs, initiatives, partners, business units, directors, officers, employees, representatives, agents, licensors, advertisers, suppliers, operators or service providers (collectively, the “EngenderHealth Parties”), the Services, the EngenderHealth Parties’ goodwill, name or reputation or causes duress, distress or discomfort to us or anyone else, or discourages any person or entity from using all or any portion, features or functions of the Services, or from collaborating, supporting, advertising, linking or becoming a supplier to us in connection with the Services;
(e) submit, post, email, display, transmit or otherwise make available on, through or in connection with the Services any material that contains a software virus, worm, spyware, Trojan horse or other computer code, file or program designed to interrupt, impair, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(f) use the Services for commercial or business purposes, including, without limitation, engaging in barter arrangements, pyramid schemes, advertising, marketing or offering goods or services or exploiting information or material obtained on, through or in connection with the Services, whether or not for financial or any other form of compensation or through linking with another website, platform or service;
(g) modify, disrupt, impair, alter or interfere with the use, features, function, operation or maintenance of the Services or the rights or use or enjoyment of the Services by any other User;
(h) impersonate any person or entity, including, without limitation, an EngenderHealth official, employee, partner, agent or representative or falsely state or otherwise represent your affiliation with a person, entity or User Posting (as defined herein), transmit or otherwise make available on, through or in connection with the Services false or misleading indications of origin, information or statements of fact;
(i) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted on, through or in connection with the Services, including, without limitation, User Postings (as defined herein);
(j) solicit passwords or personal identifying information for commercial or unlawful purposes from other Users or engage in spamming, flooding, harvesting of email addresses or other personal information, “spidering”, “screen scraping”, “phishing”, “database scraping”, or any other activity with the purposes of obtaining lists of Users or other information;
(k) modify, reverse engineer, decompile or disassemble any part of the Services, whether in whole or in part, or create any derivative works from any part of the Services, or encourage, assist or authorize any other person to do so; or
(l) intentionally or unintentionally submit, post, email, display, transmit, disseminate, report or otherwise make available on, through or in connection with the Services any false, incorrect, misleading, fraudulent, exaggerated or inaccurate data or information, including, without limitation, as it pertains to any conduct, activities, achievements, initiatives, programs, recommendations, resources and/or opportunities.
EngenderHealth reserves the right to investigate and take appropriate legal action against anyone who, in EngenderHealth’s or its affiliates’ sole discretion, violates, or is suspected of violating, this Section 9, including, without limitation, reporting you to law enforcement authorities. Further, you acknowledge, consent and agree that EngenderHealth and its affiliates may access, preserve and disclose your account and registration information and any other content or information if required to do so by law or if based on a good faith belief that such access, preservation or disclosure is reasonably necessary to (i) comply with the legal process or any applicable law, rule or regulation; (ii) enforce this Agreement; (iii) respond to claims that any content or information violates the rights of any third party; (iv) respond to your requests for customer or technical service; or (v) protect the rights, property or personal safety of the EngenderHealth Parties, Users or any third parties.
10. USER POSTINGS
10.1. Defined; Acknowledgements. The Services may provide you and other Users with an opportunity to participate in feeds, forums, communities and other message, comment and communication features and functionalities and may provide you with the opportunity to submit, post, email, display, transmit or otherwise make available comments, reviews, links, materials, ideas, opinions, messages, user information and other information via the Services (each, a “User Posting”, and collectively, “User Postings”). When you submit User Postings you may also be asked to provide information about you and your submission. This may include, without limitation, such things as your User Credentials, a descriptive title, information about the User Posting, your location, activities, preferences, photographs, media and/or similar information. By submitting User Postings, you acknowledge and agree that the term “User Posting” also includes, without limitation, and refers to all of the information you submit or we may receive that is related to your User Posting. You further acknowledge and agree that all User Postings made by means of or in connection with any portion of the Services are public and that (a) you have no expectation of privacy in any User Posting and (b) no confidential, fiduciary, contractually implied or other relationship is created between you and EngenderHealth by reason of your transmitting a User Posting to any area of or in connection with the Services.
10.2. Responsibility; Liability. You understand, acknowledge and agree that all User Postings are the sole responsibility of the person from which such User Postings originated. This means that you are solely and entirely responsible for the consequences of all User Postings that you submit, upload, post, email, display, transmit or otherwise make available. User Postings do not reflect the views of the EngenderHealth Parties, and you understand that by using the Services, you may be exposed to other people’s User Postings that could be threatening, abusive, offensive, indecent or objectionable and, as such, EngenderHealth does not guarantee the accuracy, integrity, quality, or other aspect of any User Postings. Under no circumstances shall the EngenderHealth Parties be liable in any way for User Postings, including, without limitation, errors or omissions in any User Postings, or any loss or damage of any kind incurred as a result of any User Postings submitted, uploaded, posted, emailed, displayed, transmitted or otherwise made available.
10.3. Usage; Restrictions. The Services, including, without limitation, all User Posting features and functionality, is for non-commercial, non-business and personal purposes only and you may not submit, post, email, display, transmit or otherwise make available, in any manner, any User Posting that we deem to be an Unauthorized Posting (as defined herein). We have the right, but not the obligation, to review any User Posting and to delete, remove, move, edit or reject, without notice to you, for any reason or for no reason whatsoever, any User Postings, including, without limitation, any Unauthorized Postings; provided, however, that EngenderHealth shall have no obligation or liability to you or any third party for failure to do so or for doing so in any particular manner. As used herein, the term “Unauthorized Posting” means any User Posting that is or may be construed as violating this Agreement, including, without limitation, Section 9 herein, or is deemed to be unacceptable to EngenderHealth or affiliates for any reason, as determined in EngenderHealth’s or affiliates’ sole discretion.
10.4. License; Usage. In connection with all User Postings you submit, post, email, display, transmit or otherwise make available, you grant to EngenderHealth and its affiliates the unqualified, unrestricted, unconditional, unlimited, worldwide, non-exclusive, irrevocable, perpetual, fully-paid up and royalty-free right, license, authorization and permission, in any form or format, on or through any media or medium and with any technology or devices now known or hereafter developed or discovered, in whole or in part, to host, cache, store, maintain, use, reproduce, distribute, display, exhibit, perform, publish, broadcast, transmit, modify, prepare derivative works of, adapt, reformat, translate, and otherwise exploit all or any portion of your User Posting on the Services and any other websites, channels, services, and other distribution platforms, whether currently existing or developed in the future, for any purpose whatsoever (including, without limitation, for any promotional purposes) without accounting, notification, credit or other obligation to you, and the right to license and sub-license (through multiple levels) and authorize others to exercise any of the rights granted hereunder to EngenderHealth and its affiliates, in their sole discretion. For the avoidance of doubt, the rights, licenses and privileges described in this Agreement and granted hereunder shall commence immediately upon submission of your User Posting and shall continue thereafter perpetually and indefinitely, regardless of whether you use the Services as a registered User or not.
10.5. Rights; Representations. EngenderHealth does not acquire any title or ownership rights in the User Postings that you submit and/or make available. After you submit, post, email, display, transmit or otherwise make available any User Posting, you continue to retain any such rights that you may have in such User Posting, subject to the rights, licenses and privileges granted herein. You also represent, warrant and covenant that (a) you own the User Posting posted by you or otherwise have the right to grant the rights, licenses and privileges described in this Agreement and to perform and comply with all of the requirements set forth herein; (b) your submission, uploading, posting, emailing, displaying, transmission and/or making available of User Postings does not violate this Agreement, any rights of any other party or entity, any of your obligations, any law, rule or regulation or infringe upon, misappropriate or violate any intellectual property, proprietary, privacy, moral, publicity or other rights of any party or entity; (c) you have the legal right and capability to enter into this Agreement and perform and comply with all of its terms and conditions; and (d) you hold and shall continue to hold all the ownership, license, proprietary and other rights necessary to enter into, authorize, grant rights and perform your obligations under this Agreement and shall pay for all royalties, fees, and any other monies owing to any person or entity by reason of your User Postings.
10.6. California Removal Rights. Registered Users of Services who are California residents and are under 18 years of age may request and obtain removal of User Postings located on the Services that they themselves post by emailing us at firstname.lastname@example.org. All requests must be labeled “California Removal Request” on the email subject line. All requests must provide a description of the content or information in your User Posting that you want removed and information reasonably sufficient to permit us to locate the material and, so that we can process your request and contact you if we have questions, include your registered username, name, street address, city, state, zip code and email address (your street address is optional if you wish to receive a response to your request via email), include the name and URL (if applicable) of the website, application or other interactive service and indicate your preference on how our response to your request should be sent (email or postal mail). We shall not accept requests via postal mail, telephone or facsimile. We are not responsible for notices that are not labeled or sent properly, or may not be able to respond if you do not provide complete information. We may also provide you the ability to remove individual specific User Postings that are comments by navigating to the comment, selecting the delete option when you hover over the right-hand side of the comment with your cursor and verifying the deletion request. Please also note that any requests for removal do not ensure complete or comprehensive removal of the Content or information from the Services. For example, content that you have posted may be republished or reposted by another User or third party.
11. DIGITAL MILLENIUM COPYRIGHT ACT
11.1. If you are a copyright owner or an agent thereof and believe that any content on the Services infringes upon your copyrights, your may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Agent (as set forth below) with the following information in writing (see 17 U.S.C. 512(c)(3) for further details):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a representative list of such works on the Services;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if applicable, e-mail 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 the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Written notification of claimed infringement must be submitted to the following Designated Agent:
EngenderHealth Copyright Agent
c/o Tor de Vries
440 Ninth Avenue
New York, NY 10001
Facsimile Number of Designated Agent: 212-993-9866
Email Address of Designated Agent: email@example.com
For clarity, only DMCA notices should be sent to the Designated Agent and any other feedback, comments, requests for technical support, and other communications should be directed to EngenderHealth support by sending an email to firstname.lastname@example.org. You acknowledge and agree that if you fail to comply with all of the requirements of this Section 11, your DMCA notice may not be valid.
11.2. If you believe that your content was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to applicable law, to make such content available to EngenderHealth for use on the Services, you may send a counter-notice containing the following information to our Copyright Agent:
- Your physical or electronic signature;
- Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the content was removed or disabled as a result of a mistake or a misidentification of the content; and
- Your name, address, telephone number, and, if applicable, e-mail address, and a statement that you shall accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by our Copyright Agent, EngenderHealth may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider or the User, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at EngenderHealth’s sole discretion.
12. ADDITIONAL TERMS AND REQUIREMENTS
12.1. Availability. You acknowledge that EngenderHealth licenses some or all of the Content under agreement from third parties, and that EngenderHealth may add, delete or disable Content, and/or add, delete, disable or modify some or all of the Services, at its sole election, and you acknowledge: (a) that you may no longer be able to use the Services to the same extent, or at all, as prior to such change or discontinuation, and (b) that EngenderHealth shall have no obligation or liability to you in such case. In no event shall EngenderHealth be liable for the removal of or disabling of access to any Content, the Services, materials or any features or portions of the Services. EngenderHealth may also impose limits on the use of or access to certain features or portions of the Content or the Services, in any case and without notice or liability to you. By way of example, and not limitation, not all Users of the Services, depending upon the User’s geographic location, equipment, Device, age and other factors, will have access to all Content and Services.
12.2. Device and Messaging Requirements and Terms. In order to access and use the Services and the Content, you will be required to use Device(s) and other technology meeting certain system, configuration and other requirements established by EngenderHealth and its affiliates and their its content partners, licensors and other third parties (e.g., storefront, network, website, platform and other operators, etc.) (collectively, “Operators”), and you are responsible for ensuring that your Device(s) and other technology meet all such requirements at all times. Additionally, the Services may provide you and other Users with the opportunity to use certain messaging, commenting and social networking features and functionality that allow you to send messages, content and communications to other Users of the Services, as well as other contacts and social networks outside of the Services (whether sent via email, instant message, SMS text or other means), and you acknowledge and agree that you may receive such messages from us and other Users of the Services as well. Certain wireless carrier and data access provider charges may apply to SMS messages and other messages sent to certain Devices received by you or received by the individual to whom you sent such messages. You expressly acknowledge and agree that you are solely responsible for any data access, messaging and other service rates and charges you may incur in connection with your Device and use of the Services.
12.3. Objectionable Material. You understand that by using the Services, you may encounter Content that may be deemed offensive, indecent, or objectionable by some, which Content may or may not be identified as such. Nevertheless, you agree to use the Services at your sole risk and that EngenderHealth shall have no liability to you for Content that may be found to be offensive, indecent, or objectionable.
13. GIVING, PAYMENT, PRICING, AND RELATED TERMS OF SERVICE
13.1. Fee-Based Services. We may make available certain fee-based transactions, content and other e-commerce services, including, without limitation, the ability to make donations, purchase goods and services, on and/or in connection with the Services (“Fee-Based Services”). For example, you may be able to purchase apps, products, services and/or licenses through the Services, including, without limitation, additional Service features and functionality. Additional Terms may apply to your use of, access to and purchase of Fee-Based Services and such Additional Terms are incorporated herein by reference. You may only use the Fee-Based Services if, and you hereby represent, warrant and agree that (a) you are 18 years of age or older and a legal resident of U.S. and (b) you shall pay in full the prices and fees (including, without limitation, all applicable taxes (as more fully described below) for any purchases you, or anyone using the User Account registered to you, make via an Authorized Payment Method (as defined below).
13.2. Payment Method and Terms. The Services accept certain methods of payment which will be indicated at the time of purchase as forms of payment (each, an “Authorized Payment Method”), subject to certain restrictions, including, without limitation, territory restrictions, bank/payment card restrictions, spending limits, third party service provider restrictions or otherwise, which may prevent the processing of your order. If a transaction has been declined online due to payment card issues, please ensure all data is correct and resubmit. If the transaction is not accepted online, you will be unable to use that card for your transaction and should use another Authorized Payment Method. If a payment card company is being used for a transaction, EngenderHealth may obtain a pre-approval from the applicable payment card company for an amount up to the amount of the order. All purchases are final once you click the “Submit” or similar button/link and billing to your payment card occurs at such time or shortly thereafter. If payment is not received by us from your credit, debit or charge card issuer or its agents or other payment service provider, you agree to promptly pay all amounts due upon demand by us. EngenderHealth reserves the right to change any and all prices for any Services and other Content at any time, for any reason.
13.3. Taxes. You are responsible for any taxes imposed on any fee-based transactions conducted on or in connection with the Services and applicable taxes will be added to the amount charged for the applicable transaction. Fee-based transactions in connection with the Services may include, without limitation, sales tax, use tax and any other applicable taxes, which may be based on various factors, including, without limitation, the bill-to address and tax rates in effect at the time your transaction is completed. Except as expressly designated by EngenderHealth in writing, no Users are eligible for tax exemptions for transactions made in connection with the Services.
13.4. Additional Terms and Conditions. EngenderHealth may revise any or all of the fees and prices associated with the Fee-Based Services at any time for any or no reason. Further, EngenderHealth does not guarantee that product descriptions or other content and products will be available, accurate, complete, reliable, current or error-free. Descriptions and images of, and references to, products or services on or in connection with the Fee-Based Services do not imply the EngenderHealth Parties’ endorsement of such products or services. Moreover, EngenderHealth and its third party operational service providers reserve the right, with or without prior notice, for any or no reason, to change product descriptions, images, and references; to limit the available quantity of any product; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any User from conducting any or all transaction(s); and/or to refuse to provide any User with any product. Further, if EngenderHealth terminates your use of or registration to the Services because you have breached or violated this Agreement, you shall not be entitled to a refund of any unused portion of any fees, payments or other consideration.
13.5. Support. If you have a complaint or dispute about a certain charge, or about a certain feature or product made available on or in connection with the Fee-Based Services, you must promptly notify EngenderHealth of such complaint or dispute by sending a detailed email to email@example.com.
13.6. THIRD PARTY PRODUCTS AND SERVICES. ENGENDERHEALTH AND ITS AFFILIATES ARE NOT RESPONSIBLE AND HAVE NO LIABILITY WHATSOEVER FOR GOODS OR SERVICES YOU OBTAIN THROUGH THIRD PARTY SERVICE PROVIDERS OR OTHER WEB SITES, WEB PAGES, APPLICATIONS AND PLATFORMS (EVEN IF ACCESSED WITHIN, THROUGH OR IN CONNECTION WITH THE SERVICES), AND ANY SUCH PURCHASES ARE SUBJECT TO THEIR RESPECTIVE TERMS AND CONDITIONS OF USE. YOU ACKNOWLEDGE AND AGREE THAT PRODUCT/SERVICE SPECIFICATIONS AND OTHER INFORMATION HAVE EITHER BEEN PROVIDED BY THE APPLICABLE THIRD PARTY VENDORS OR COLLECTED FROM PUBLICLY AVAILABLE SOURCES AND WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY OR RELIABILITY OF ANY SUCH INFORMATION. ACCORDINGLY WE ENCOURAGE YOU TO MAKE WHATEVER INVESTIGATION YOU FEEL NECESSARY OR APPROPRIATE BEFORE PROCEEDING WITH ANY TRANSACTION WITH ANY OF THESE THIRD PARTIES AS SAME IS CONDUCTED AT YOUR SOLE RISK. FURTHER, THE ENGENDERHEALTH PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE SECURITY OF ANY INFORMATION (INCLUDING, WITHOUT LIMITATION, CREDIT CARD AND OTHER PERSONAL INFORMATION) YOU MIGHT BE REQUESTED TO GIVE ANY SUCH THIRD PARTY, AND YOU IRREVOCABLY WAIVE ANY CLAIM AGAINST US AND OUR AFFILIATES WITH RESPECT TO ANY SUCH TRANSACTION. WE ARE NOT RESPONSIBLE FOR ASSISTING YOU IN CORRECTING ANY PROBLEM YOU MAY EXPERIENCE WITH GOODS AND SERVICES PURCHASED THROUGH A THIRD PARTY SERVICE PROVIDER, EVEN IF THE GOODS OR SERVICES ARE ACCESSED WITHIN, THROUGH OR IN CONNECTION WITH THE SERVICES. WE CANNOT ENSURE THAT YOU WILL BE SATISFIED WITH ANY PRODUCTS OR SERVICES THAT YOU PURCHASE FROM ANY THIRD PARTY OPERATIONAL SERVICE PROVIDER AS THOSE ARE OWNED AND OPERATED BY INDEPENDENT ENTITIES. CUSTOMER SERVICE ISSUES RELATED TO GOODS OR SERVICES SHOULD BE DIRECTED TO THE RELEVANT THIRD PARTY OPERATIONAL SERVICE PROVIDER.
14. CUSTOMER SUPPORT
For assistance with technical issues related to the Services, contact firstname.lastname@example.org.
15. THIRD PARTY SERVICES AND CONTENT
The appearance, availability, license or your use of (a) URLs, APIs, telephone numbers, contact information or hyperlinks referenced or included anywhere on, through or in connection with the Services or any other form of link or re-direction of your connection or call to, with or through the Services (e.g., webpages, URLs, feeds, updates and related content accessed from within the Services, etc.), or (b) any third party websites, platforms, content, data, information, applications, goods, services or materials, including, without limitation, Third Party Platforms (collectively, “Third Party Services”) does not constitute an endorsement by, nor does it incur any obligation, responsibility or liability on the part of the EngenderHealth Parties. We do not verify, endorse, or have any responsibility for Third Party Services or any third party business or professional practices, conduct or services (including, without limitation, their privacy policies and other terms and requirements), whether the Services’ or the EngenderHealth Parties’ logos, names, marks and/or sponsorship identification is on the Third Party Services as part of a branding, cobranding, promotional, collaboration, partnership or outsourcing arrangement or otherwise. If any Third Party Services you interact with obtains or collects personal or other information from you, in no event shall the EngenderHealth Parties assume or have any responsibility or liability in connection with any use, collection or disclosure by or in connection with such Third Party Services or otherwise. Accordingly, we encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policies of each Third Party Service you access, use or interact with.
From time to time, you may choose to communicate with, interact with, or obtain Third Party Services from our advertisers, sponsors or other promotional partners (collectively, “Advertisers”) found on, through or in connection with the Services or via a hyperlinked website, service or platform (e.g., apparel, accessories and other products bearing the EngenderHealth Parties’ branding sold by third parties). All such communication, interaction and participation is strictly and solely between you and such Advertisers and we shall not be responsible or liable to you in any way in connection with these activities or transactions (including, without limitation, any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the Advertisers or any goods or services you may purchase or obtain from any Advertiser).
17. PROMOTIONS, CONTESTS, SWEEPSTAKES AND PROGRAMS
From time to time, the EngenderHealth Parties may conduct fundraising, promotions and other activities on, through or in connection with the Services, including, without limitation, fund raising challenges, initiatives, contests and sweepstakes and privilege programs (collectively, “Promotions”). Each Promotion may have Additional Terms and/or Rules which shall be posted or otherwise made available to you in connection therewith.
This Agreement, and any rights, licenses and privileges granted herein, may not be transferred, conveyed, subcontracted, delegated or assigned by you, but may be transferred, conveyed, subcontracted, delegated or assigned by EngenderHealth and its affiliates without restriction, notice or other obligation to you or any third party.
You agree to defend, indemnify and hold the EngenderHealth Parties harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees and expenses) arising in any way out of or in connection with (a) your use of the Services, (b) your breach or violation of this Agreement, (c) your violation or non-compliance with any applicable law, rule or regulation or (d) your User Postings. EngenderHealth reserves the right to assume, at its own expense, the exclusive defense and control of any claims or actions and all negotiations for its settlement or compromise, and you agree to fully cooperate with us upon our request.
20. DISCLAIMERS AND LIMITATIONS OF LIABILITY.
20.1. THE SERVICES, AND ALL CONTENT, PRODUCTS, SERVICES AND USER POSTINGS MADE AVAILABLE ON, THROUGH OR IN CONNECTION THEREWITH, INCLUDING, WITHOUT LIMITATION, ANY AND ALL MEDICAL, CRISIS, COUNSELING AND/OR HEALTH-RELATED CONTENT, SERVICES OR INFORMATION, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, OR ANY GUARANTY OR ASSURANCE THAT SAME WILL BE AVAILABLE FOR USE, OR THAT ANY PRODUCTS, FEATURES, FUNCTIONS, SERVICES OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED. ALL IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS RELATING TO THE SERVICES, AND ALL CONTENT, PRODUCTS, SERVICES AND USER POSTINGS ARE HEREBY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, THE ENGENDERHEALTH PARTIES ARE NOT RESPONSIBLE OR LIABLE FOR ANY MALICIOUS CODE, DELAYS, INACCURACIES, ERRORS, FAULTS, VIRUSES OR OMISSIONS ARISING OUT OF YOUR USE OF OR ACCESS TO THE SERVICES.
20.2. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT YOU ARE ASSUMING THE ENTIRE RISK AS TO THE QUALITY, ACCURACY, PERFORMANCE, TIMELINESS, ADEQUACY, COMPLETENESS, CORRECTNESS, AUTHENTICITY, SECURITY AND VALIDITY OF ANY AND ALL INFORMATION, FEATURES, FUNCTIONALITY AND OTHER ASPECTS OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, USER POSTINGS AND CONTENT ASSOCIATED WITH YOUR USE OF THE SERVICES. FURTHER, AND WITHOUT LIMITING THE FOREGOING, THE ENGENDERHEALTH PARTIES MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, REGARDING ANY MATERIALS, INFORMATION, CONTENT, PRODUCTS OR SERVICES (INCLUDING ANY PRODUCT OR SERVICE LITERATURE, FREQUENTLY ASKED QUESTIONS DOCUMENTS, ADVICE, RECOMMENDATIONS, CONTACT DETAILS, HYPERLINKS, RESOURCES, CORRESPONDENCE WITH THE ENGENDERHEALTH PARTIES OR OTHER INFORMATION) WHETHER REQUESTED, DELIVERED, DISPLAYED, MADE AVAILABLE, ORDERED OR OTHERWISE PROVIDED ON, THROUGH OR IN CONNECTION WITH THE SERVICES, WHETHER ORAL OR WRITTEN, AND HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, MADE IN CONNECTION THEREWITH. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THE TECHNOLOGICAL LIMITS AND CAPACITY OF THE SERVICES, IN THE AGGREGATE AND FOR EACH USER, IS LIMITED AND SUBJECT TO CHANGE OR FAILURE. CONSEQUENTLY, SOME CORRESPONDENCE, MESSAGES, CALLS, CONTENT AND TRANSMISSIONS, INCLUDING, WITHOUT LIMITATION, USER POSTINGS AND OTHER COMMUNICATIONS, UPDATES, UPGRADES AND NOTIFICATIONS, MAY NOT BE POSTED, MADE AVAILABLE, PROCESSED IN A TIMELY FASHION OR AT ALL, AND SOME FEATURES, SERVICES OR FUNCTIONS MAY BE RESTRICTED, SUBJECT TO TERRITORIAL AND OTHER HEIGHTENED REQUIREMENTS, OR DELAYED OR BECOME COMPLETELY INOPERABLE. AS A RESULT, YOU ACKNOWLEDGE AND AGREE THAT THE ENGENDERHEALTH PARTIES ASSUME NO LIABILITY, RESPONSIBILITY OR OBLIGATION TO TRANSMIT, PROCESS, STORE, RECEIVE OR DELIVER TRANSACTIONS, COMMUNICATIONS, UPDATES, UPGRADES, INFORMATION, CALLS OR USER POSTINGS OR FOR ANY FAILURE OR DELAY ASSOCIATED WITH SAME AND YOU ARE HEREBY EXPRESSLY ADVISED NOT TO RELY UPON THE TIMELINESS, ACCURACY OR PERFORMANCE OF THE SERVICES FOR ANY TRANSACTIONS, COMMUNICATIONS OR USER POSTINGS.
20.3. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE ENGENDERHEALTH PARTIES SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING FROM USE OF THE SERVICES OR FROM THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, EXEMPLARY COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT THE ENGENDERHEALTH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, MEDICAL MALPRACTICE, LOSS OF PROFITS OR OPPORTUNITY, BUSINESS INTERRUPTION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES..
20.4. MEDICAL AND HEALTH-RELATED CONTENT. YOU ACKNOWLEDGE AND AGREE THAT THE ENGENDERHEALTH PARTIES DO NOT RECOMMEND OR ENDORSE ANY SPECIFIC TESTS, PHYSICIANS, MEDICATIONS, HEALTH CARE PROVIDERS, PRODUCTS, SERVICES, LITERATURE, INFORMATION, PRACTICES OR PROCEDURES. FOR PURPOSES OF CLARITY AND THE AVOIDANCE OF DOUBT, YOU FURTHER ACKNOWLEDGE AND AGREE THAT ANY AND ALL MEDICAL, CRISIS, COUNSELING, DIAGNOSIS, TREATMENT AND/OR HEALTH-RELATED CONTENT, SERVICES OR INFORMATION MADE AVAILABLE ON, THROUGH OR IN CONNECTION WITH THE SERVICES IS SUBJECT TO ALL OF THE DISCLAIMERS, ACKNOWLEDGEMENTS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 20 AND THROUGHOUT THIS AGREEMENT, AND SUCH CONTENT, SERVICES AND INFORMATION (A) IS MADE AVAILABLE FOR GENERAL INFORMATION PURPOSES ONLY, (B) IS NOT INTENDED AS MEDICAL OR HEALTH ADVICE, DIAGNOSIS OR TREATMENT OF ANY KIND AND (C) SHOULD NOT BE RELIED UPON IN ANY RESPECT, INCLUDING, WITHOUT LIMITATION, AS A SUBSTITUTE FOR CONSULTATIONS WITH, OR MEDICAL AND HEALTH-RELATED ADVICE AND TREATMENT FROM, QUALIFIED HEALTH PROFESSIONALS.
20.5. Some jurisdictions do not allow for the exclusion of certain warranties or certain limitations on damages and remedies, accordingly some of the exclusions and limitations described in this Agreement may not apply to you.
21. GOVERNING LAW; MISCELLANEOUS
21.1. This Agreement contains the entire understanding and agreement between you and EngenderHealth concerning the Services and supersedes any and all prior or inconsistent understandings relating to the Services and your access to and use thereof. If any provision of this Agreement is held to be illegal, invalid or unenforceable, this shall not affect any other provisions and this Agreement shall be deemed amended to the extent necessary to make it legal, valid and enforceable. Any provision which must survive in order to allow for the enforcement of its meaning or intent shall survive the termination of this Agreement; however, no action, claim or proceeding arising out of this Agreement or your use of or access to the Services, regardless of form or the basis of the action, claim or proceeding, may be brought by you more than one year after the incident giving rise to the action, claim or proceeding first arose (or if multiple incidents, from the date the first such incident). The failure of EngenderHealth or any other EngenderHealth Party to exercise or enforce any right, remedy or provision of this Agreement will not operate as a waiver of such any right, remedy or provision.
21.2. This Agreement and your use of and access to the Services is governed by, construed and enforced in accordance with the internal substantive laws of the State of New York (notwithstanding the State’s conflict of laws provisions) applicable to contracts made, executed and wholly performed in New York, and, for the purposes of any and all legal or equitable actions, you specifically agree and submit to the exclusive jurisdiction and venue of the State and Federal Courts situated in the State and County of New York and agree you shall not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non conveniens or otherwise. IN ANY ACTION, CLAIM OR PROCEEDING COMMENCED TO ENFORCE ANY RIGHT, REMEDY OR OBLIGATION OF THE PARTIES UNDER THIS AGREEMENT, RELATING TO YOUR USE OF OR ACCESS TO THE SERVICES OR OTHERWISE ARISING OUT OF OR RELATING TO THE SUBJECT MATTER HEREOF, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.
21.3. You and EngenderHealth further agree that the resolution of any disputes, claims or actions arising hereunder, including, without limitation, in connection with any use of or access to the Services, shall be conducted in each of your individual capacities only and not as a class action or other representative action, and such parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND ENGENDERHEALTH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
21.4. The Services are controlled by EngenderHealth from its offices in the U.S. and EngenderHealth makes no representation, warranty or guarantee that the Services contained on or made available in connection therewith are legal, appropriate or available for use in other locations. Those who choose to use or access the Services from other locations do so at their own risk and are responsible for compliance with any and all local laws, rules and regulations, if and to the extent local laws, rules and regulations are applicable. No software made available in connection with the Services may be downloaded, exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list.
This Agreement was last modified on the date indicated above and is effective immediately.