Effective Date: September 11, 2018
PLEASE READ THE FOLLOWING CAREFULLY. This is a legally binding agreement between you as a user of the Simplyseniors.com website located at URL www.simplyseniors.com (the “Site”) (“user” or “you”) and RMICPA, LLC, a subsidiary of Response Mine Interactive, LLC a Georgia limited liability corporation (“RMI”, “us”, “our” or “we”).
BY ACCESSING OR USING THE SITE, YOU SIGNIFY THAT YOU HAVE READ THE AGREEMENT AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THE AGREEMENT. IF YOU HAVE NOT READ THE AGREEMENT, DO NOT UNDERSTAND OR AGREE TO BE BOUND BY THE AGREEMENT, OR ARE NOT ABLE TO CONSENT TO BE BOUND BY THE AGREEMENT (E.G., IF YOU ARE NOT OLD ENOUGH TO ENTER INTO A BINDING LEGAL CONTRACT), DO NOT USE OUR SITE.
NOTE THAT DISPUTES ABOUT THIS AGREEMENT OR RELATING TO THE SITE GENERALLY MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY. See Section 20 for more details.
1. Description of the Site
Simplyseniors.com is dedicated to ostomy and catheter information, tips, and resources. More specifically, Simplyseniors.com provides users with information, tips, and resources (including service provider contact information) about catheter supplies and ostomy supplies. The specific features and functionality of the Site are dynamic and may change from time to time. We reserve complete and sole discretion with respect to the operation of our Site. We reserve the right to change terms and warranties without notice. We also reserve the right to withdraw, suspend, or discontinue any functionality or feature of our Site at any time.
Simplyseniors.com is owned and operated by Response Mine Interactive, a full service digital marketing agency specializing in the health, multi-channel retail, and home service verticals. RMI operates various advertising and promotional websites, including but not limited to the Site, designed to promote its customers’ businesses by applying its proprietary marketing methodology, media optimization, analytics and branding strategies.
3. Scope and Acceptance
Anyone who accesses or uses our Site is a “user.” The Agreement sets forth your rights and obligations as a user with respect to your access to and use of our Site and use of any and all information or data of any kind arising from access to, or use of, our Site, including, without limitation, any text, graphics, sound recordings, audio, video, and art work.
If you are accessing or using our Site on behalf of any business, organization, or other entity of any kind, you represent and warrant that you are authorized (a) to accept these terms on its behalf and (b) to bind such business, organization, or entity to the Agreement.
The Site is not intended or authorized for use by persons under the age of eighteen (18). By using the Site, you represent and warrant that you are eighteen (18) years of age or older and that you agree to and agree to abide by all of the terms and conditions of the Agreement. If we believe that you are under the age of eighteen (18) or that you are not old enough to consent to and be legally bound by the Agreement, we may, at any time, in our sole discretion, and with or without notice: (i) terminate your access to or use of the Site (or any portion, aspect, or feature of it), or (ii) delete any content or information that you have posted through the Site.
We reserve the right to deny access to our Site at our discretion and for any reason, including any breach of the Agreement.
5. Account Information and Security
6. Inaccuracies on the Site
A possibility exists that the Site could include inaccuracies or errors and that additions, deletions, and alterations could be made to the Site by unauthorized third-parties. Although we attempt to ensure the integrity of the Site, we make no guarantees as to the completeness, correctness, or accuracy of the Site or any of the content on the Site. If you believe any portion of our Site includes an error or inaccuracy, please notify us.
All prices, quotes, or service offerings listed on the Site are subject to change. Such prices, quotes, or service offerings may be available for a limited time only, may only be available with additional purchases, or may not apply to you. Neither RMI nor its customers or advertisers on the Site are bound by any such prices, quotes, or service offerings.
7. Proprietary Rights in Content in our Site
As between you and RMI, RMI owns and retains all proprietary rights in the Site. The Site contain proprietary content and information of RMI and its customers, advertisers, and licensors (such materials and content includes, but is not limited to, the design, layout, artwork and other elements of the Site and any text, audio, video, logo, information, data, software, documentation, services or any other materials contained on the Site) (“RMI Content”) and is protected by copyright and other intellectual property laws. You may view, download, print, and copy the RMI Content on the Site for your own personal, informational use, provided that (i) you do not modify the RMI Content and (ii) you retain all copyright and propriety notices originally contained in the RMI Content on any copies. Nothing herein shall be construed as granting any license or right to use the Site or any materials contained on the Site, including any RMI Content, except as expressly provided herein. You acknowledge that we will aggressively enforce our intellectual property rights with respect to the RMI Content to the fullest extent of the law, including, without limitation, the seeking of criminal prosecution.
8. User Feedback
Any feedback, comments, ideas, improvements or suggestions (collectively, “Suggestions”) provided by you to us with respect to the Site shall remain the sole and exclusive property of RMI. We shall be free to use, copy, modify, publish, or redistribute the Suggestions for any purpose and in any way without credit or compensation to you.
9. Permitted Use
In connection with the use of our Site, you may not:
10. User Content; Consumer Reviews
We may, at our sole discretion, permit users to post, upload, publish, submit, or transmit photos, diagrams, text, testimonials, reviews, videos, sounds, images, or information (collectively, “User Content”). By making available any User Content on or through the Site, you hereby grant us a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such User Content on, through, or by means of the Site. We do not claim any ownerships rights in any such User Content and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit such User Content. You acknowledge and agree that you are solely responsible for all User Content that you make available through the Site. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the Site or you have all rights, licenses, consents, and releases that are necessary to grant to us the rights in such User Content, as contemplated under this Agreement; (ii) neither the User Content nor your posting, uploading, publication, submission, or transmittal of the User Content or our use of the User Content (or any portion thereof) on, through, or by means of the Site will infringe, misappropriate, or violate a third-party’s patent, copyright, trademark, trade secret, moral rights, or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation, and (iii) all User Content complies with the Permitted Uses enumerated above in Section 9 of this User Agreement. In addition, you agree that we may review or monitor this User Content and may remove or alter any materials that you submit in its sole discretion at any time for any reason.
11. Third Party Properties Referred to on the Site
Our Site may refer to physical venues, geographical sites, websites on the Internet, and/or products or services that are not under the control of or maintained by us (“Third Party Properties”). Unless expressly stated to the contrary, such references do not constitute an affiliation with or endorsement by us of any such Third Party Properties. You acknowledge that we are providing any references to such Third Party Properties to you solely as a convenience to you, and you agree that we are not responsible for any injury, harm, damages, or negative experience you may encounter by accessing, visiting, or using such Third Party Properties. We do not endorse or make any representations about any Third Party Properties. If you access, visit, or use any Third Party Properties referred to on our Site, you do so at your own risk.
Our Site may contain materials submitted by third parties. Any such materials are provided solely as a convenience to you. RMI requires that any content, materials, or advertising submitted to the Site by its customers be truthful, non-deceptive, and backed by evidence. However, unless expressly stated to the contrary, we have not tested or evaluated these materials and does not endorse or make any representations about these materials or your use thereof. RMI is not responsible for such materials. If you use any of the third party materials, you do so at your own risk. In no event shall we be liable for any loss, claim, damages, or costs that may arise in connection with your use of these materials.
12. Availability of the Site
It is not possible to operate our Site with 100% guaranteed uptime. We will make reasonable efforts to keep our Site operational. However, certain technical difficulties, routine site maintenance and upgrades, and other events may, from time to time, result in interruptions to or outages of our Site. In addition, we reserve the right at any time, and from time to time, to modify or discontinue (on a temporary or permanent basis) certain functions of our Site, with or without notice. You agree that we shall not be liable to you or to any third party for any direct or indirect consequence of any modification, suspension, discontinuance of, or interruption to our Site.
YOU EXPRESSLY AGREE THAT ACCESS TO AND USE OF OUR SITE IS AT YOUR SOLE RISK. OUR SITE IS PROVIDED ON AN “AS IS” AND AN “AS AVAILABLE” BASIS. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING (A) OUR SITE; AND (B) ANY PRODUCTS AND SERVICES OFFERED THROUGH OUR SITE, OR ANY PORTION THEREOF, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE. WE MAKE NO REPRESENTATION OR WARRANTY THAT ANY MATERIAL, CONTENT, PRODUCTS, OR SERVICES DISPLAYED ON OR OFFERED THROUGH OUR SITE ARE ACCURATE, COMPLETE, APPROPRIATE, RELIABLE, OR TIMELY. WE ALSO MAKE NO REPRESENTATIONS OR WARRANTIES THAT OUR SITE WILL MEET YOUR REQUIREMENTS, OR THAT YOUR ACCESS TO AND USE OF OUR SITE WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF VIRUSES, MALICIOUS CODE, OR OTHER HARMFUL COMPONENTS, OR OTHERWISE WILL BE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
14. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL RMI OR ANY OF ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS, OR ASSIGNEES BE LIABLE TO YOU OR ANY OF YOUR PARTNERS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS, OR ASSIGNEES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN CONTRACT, EQUITY, TORT, OR OTHERWISE (INCLUDING BREACH OF WARRANTY, NEGLIGENCE, AND STRICT LIABILITY IN TORT), INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM DELAY, LOSS OF GOODWILL, LOSS OF OR DAMAGE TO DATA, INTERRUPTION IN USE OR AVAILABILITY OF DATA, LOSS OF USE OF MONEY OR USE OF PRODUCTS, LOST PROFITS, REVENUE OR SAVINGS (ACTUAL OR ANTICIPATED), OR OTHER ECONOMIC LOSS ENSUING FROM OR IN CONNECTION WITH (A) THE SITE; OR (B) ANY PRODUCTS AND SERVICES OFFERED THROUGH THE SITE, OR ANY PORTION THEREOF, EVEN IF WE OR ANY OF OUR AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
IF, DESPITE THE FOREGOING LIMITATION OF LIABILITY FOR DAMAGES, A COURT OR OTHER TRIBUNAL OF COMPETENT JURISDICTION DECIDES TO AWARD MONETARY DAMAGES TO YOU FOR ANY CLAIM OR CAUSE OF ACTION ARISING FROM THE SAME, THE AMOUNT OF MONETARY DAMAGES FOR SUCH CLAIM OR CAUSE OF ACTION SHALL BE NO GREATER THAN ONE HUNDRED U.S. DOLLARS ($100).
YOU UNDERSTAND AND AGREE THAT YOU ARE PERSONALLY RESPONSIBLE FOR YOUR BEHAVIOR IN CONNECTION WITH AND USE OF THE SITE. YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS RMI, ITS PARENTS, SUBSIDIARIES, AND AFFILIATES, AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, PARTNERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS, AND ASSIGNS FROM AND AGAINST ALL CLAIMS, DEMANDS, LAWSUITS, DAMAGES, LIABILITIES, LOSSES, COSTS, OR EXPENSES (INCLUDING, BUT NOT LIMITED TO, REASONABLE FEES AND DISBURSEMENTS OF COUNSEL AND COURT COSTS), JUDGMENTS, SETTLEMENTS, AND PENALTIES OF EVERY KIND ARISING FROM OR RELATING TO YOUR USER CONTENT, ANY VIOLATION OF THIS AGREEMENT, AND ANY ACTIVITY RELATED TO YOUR USE OF THE SITE.
You agree that we may, in its sole discretion and without prior notice, terminate your access to or use of any of our Site at any time and for any reason, with or without cause.
17. Copyright Infringement
We take copyright violation very seriously and will vigorously protect the rights of legal copyright owners. We may remove material from the Site that appears in our sole discretion to infringe upon the intellectual property rights of others and we will terminate the access rights of any repeat infringer. If you believe a work protected by a U.S. copyright you own has been posted on this Site without authorization, you may notify our copyright agent, and provide the following information:
To notify us of claimed copyright infringement, please contact: Simplyseniors.com or RMICPA, LLC at 3390 Peachtree Road, Suite 800 Atlanta, GA 30326.
18. Modifications and Updates
At any time and in our sole discretion, we may add, delete, or modify the Agreement or the Site or any functionality provided through the Site. Should you deem any such addition, deletion, or modification to the Agreement unacceptable, you shall stop accessing, and/or using the Site. All changes to the Agreement shall be effective immediately.
We may also from time to time provide enhancements or improvements to the features and/or functionality of the Site, which may include patches, bug fixes, updates, upgrades, and other modifications (“Updates”). All Updates are subject to the terms and conditions of this User Agreement. Updates may modify or delete certain features and/or functionalities of the Application. You acknowledge and agree that we have no obligation to (i) provide any Updates; or (ii) continue to provide or enable any particular features and/or functionalities.
19. International Use
20. Dispute Resolution
The parties agree that, except as otherwise provided below, they shall first attempt to resolve any dispute, claim or controversy relating in any way to this Agreement (a “Dispute”) between an officer of each party who has authority to resolve the Dispute. If any Dispute cannot be settled in this manner within sixty (60) days of written notice being served by a party on the other party, the parties agree that the Dispute may be settled by arbitration in accordance with the JAMS Arbitration Association (“Rules”) in Atlanta, Georgia, with judgment upon the award rendered by the arbitrator to be entered in any court of competent jurisdiction. Any arbitrator selected pursuant to the Rules will conduct arbitration and the arbitrators will have a background or training in smart medical devices and medical software applications, contract law and intellectual property. The arbitrators may award attorneys’ fees and costs to the prevailing party. Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim, conservatory or equitable relief, as necessary, without breach of this arbitration Agreement and without any abridgment of the powers of the arbitrator(s).
Notwithstanding the foregoing, you agree that any violation by you of the Agreement will constitute an unlawful and unfair business practice that will cause irreparable harm to us for which monetary damages would be inadequate. You consent to our obtaining any injunctive or equitable relief that we deem necessary or appropriate in such circumstances, without the need for a bond. These remedies are in addition to any other remedies we may have at law or in equity.
21. Applicable Law and Venue
Any action related to the Agreement will be governed by the laws of the State of Georgia, without regard to the choice or conflicts of law provisions of any jurisdiction. You and RMI agree and consent that jurisdiction, proper venue, and the most convenient forums for all claims, actions, and proceedings of any kind relating to the Site or the Agreement that are not submitted to arbitration will be exclusively in the federal or local courts with jurisdiction over Atlanta, Georgia.
If RMI does take any legal action against you as a result of your violation of the Agreement, we will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to us. You agree that we will not be liable to you or to any third party for termination of your access to, or use of, the Site as a result of any violation of the Agreement or for any reason at all.
No action arising out of this Agreement or your access to or use of our Site, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose) and you hereby waive any longer statute of limitations that may be permitted by law.
Unless otherwise specified herein, this Agreement constitutes the entire agreement between you, a user, and us with respect to the Site and supersedes all prior or contemporaneous communications and proposals (whether oral, written, or electronic) between you and us with regard to the Site. If any part of the Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect. No failure or delay in enforcing any provision, exercising any option, or requiring performance, shall be construed to be a waiver of that or any other right in connection with the Agreement. You may not assign, by operation of law or otherwise, any rights or delegate any duties under the Agreement to any third party without prior written consent by us. Any purported assignment lacking such consent will be void at its inception. We may assign all or part of its rights and/or delegate all or part of its duties under the Agreement to any party, at any time, and in its sole discretion, upon notice of assignment by posting such notice on the Site. If you have any comments or questions about our Site, please contact us at: Simplyseniors.com or at 3390 Peachtree Road, Suite 800 Atlanta, GA 30326.
NO PROFESSIONAL ADVICE
Any information supplied through the Website by any employee or agent of Comfort Medical, whether by telephone, e-mail, letter, facsimile or other form of communication, is for educational purposes or general guidance on the use of the Website, and does not constitute medical, legal, or other professional advice. Health-related information provided through the Website is not a substitute for medical advice and it is important that you not make medical decisions without first consulting your personal physician or other healthcare professional. The receipt of any questions or feedback you submit to Comfort Medical does not create a professional relationship and does not create any privacy interests other than those described in the website.
DISCLAIMER OF WARRANTIES, LIMITATIONS OF LIABILITY, AND INDEMNIFICATION
While we use reasonable efforts to include accurate and up-to-date information on the Website, we makes no warranties or representations as to its accuracy. The materials contained on the Website are provided “AS IS” and without any implied or express warranties. We do not warrant that the functions contained in the materials will be uninterrupted or error free, that defects will be corrected, or that this Website is free of viruses or other harmful components. We do not warrant or make any representations regarding the use or results of the use of the Website in terms of accuracy or reliability. Anyone accessing this site assumes the entire cost of all necessary computer or network servicing, repair or correction. Under no circumstances will we be liable for any special or consequential damages that result from the use of, or inability to use, the Website.
UNDER NO CIRCUMSTANCES SHALL WE OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DISTRIBUTING THE WEBSITE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES FOR LOSS OF PROFITS, GOOD WILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) THAT RESULT FROM (i) THE USE OF OR INABILITY TO USE THE WEBSITE, (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE. YOU HEREBY ACKNOWLEDGE THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT, MERCHANDISE, AND SERVICES AVAILABLE THROUGH THE WEBSITE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
We may elect to monitor areas of the Website by electronic or other means and may disclose any content, records, or electronic communication of any kind if such disclosure is necessary or appropriate in our discretion (i) to satisfy any law, regulation, or government request; (ii) to operate the Website; or (iii) when we have reason to believe that someone is causing injury to or interference with our rights or property, other users of the website or anyone else that could be harmed by such activities. We are not responsible for screening, policing, editing, or monitoring such content. If notified of allegedly infringing, defamatory, damaging, illegal, or offensive content, we may investigate the allegation and determine in our sole discretion whether to remove or to request the removal of such content from the Website.
We may terminate your access, or suspend your access to all or part of the Website, without prior notice, for any conduct that we, in our sole discretion, believe is in violation of any applicable law or is harmful to our interests or the interests of another user, or other third parties.
Because customer service is paramount to our business, we reserve the right to refuse to sell products to you if it reasonably appears to us that you intend to resell the products. In addition, we reserve the right to limit quantities of items purchased by each customer. In addition, we reserve the right to cancel any order or part of an order, or refuse service to anyone for any reason. Such reasons may include, but are not limited to, unauthorized coupon use, product availability, and price discrepancy or pricing error. We reserve the right to charge fees or extra shipping charges for any product that is backordered. We also reserve the right to change the terms of any offer or promotion at any time without notice. The posting of prices on our Website is not an offer for sale of goods, and the order confirmation is not an acceptance of an offer to purchase goods. We cannot confirm the price of an item until you order; however, we do NOT charge your credit card until after your order has entered the shipping process. Despite our best efforts, a small number of the items in our catalog may be mispriced. If an item’s correct price is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation. The contract for sale of goods between us and any customer is not entered into until we charge a valid credit card or otherwise accept payment.
We also reserve the right to disclose any information necessary to satisfy any applicable law, regulation, legal process or governmental request.