Terms and Conditions
INTERNET USER TERMS AND CONDITIONS
Hair Mineral Analysis and Increase Your Vitality Program
PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS AS A USER AND RECIPIENT OF MATERIALS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU.
These Terms and Conditions (these “Terms”), together with any documents referenced herein, contain all of the terms and conditions that apply to participation in and utilization of the Hair Mineral Analysis and Increase Your Vitality Program (the “Program”) and related materials (collectively, the “Materials”) by those accessing and using (each, a “User”) the Program and Materials as described at the Internet website(s) https://perfecthealthconsultingservices.com and/or https://offer.perfecthealthconsultingservices.com (the “Site(s)”), as provided by the Site’s proprietor, Perfect Health Consulting Services, LLC, an Arizona limited liability company (“PHCSLLC”). By clicking “I accept” and also by accessing the Program and the Materials, or any of them, at the Site, User, freely, voluntarily and with full authority and capacity to do so, agrees to be bound by and accepts these Terms. If you (as a User) do not agree to be bound by all of these Terms, please do not use, utilize or access the Site, or the Materials or Program. PHCSLLC reserves the right to cancel your User account and discontinue providing Materials and making the Program available to you, as User, should you, as User, violate any of these Terms.
- General Terms Subject to Change. These Terms may change without prior notice at any time, in PHCSLLC’s sole discretion, including, but not limited to, the protocols for use of the Site, descriptions, and other e-commerce related information and/or functionality. PHCSLLC reserves the right, its sole discretion, to discontinue the Site, or the Program, and/or to modify the contents of the Site, Program or Materials, or any of them. User agrees that PHCSLLC will not be liable to User or to any third party for any such discontinuance or modification of the Site, Program, Materials, or any of them, provided that PHCSLLC complies with all applicable laws.
- Use of Laboratory / No Referral. By participating in the Program, User understands, acknowledges and agrees that Trace Elements Inc. (the “Lab”) will test hair samples provided by User to PHCSLLC through the Program, and User may consider supplements provided by the Lab that are identified and recommended through the Program. If User does not wish for the Lab to test hair samples provided by User, then User should refrain from participating in the Program. The Lab’s website may be found here: www.traceelements.com. The Lab charges market value costs and expenses for the Lab’s hair analysis testing, which shall be charged to User upon User’s enrollment in the Program, and which shall thereupon be non-refundable. The Lab does not provide any compensation, in the form of discounted products or services or otherwise, in exchange for referral of User, or any other participants of the Program, to the Lab. No provision of these Terms or of any related agreement or undertaking between User and PHCSLLC or between the Lab and PHCSLLS in relation to the Program shall be construed to induce or encourage the referral of patients or the purchase of health care services or health care supplies, it being understood and agreed that any decision by User to participate in the Program, to submit a hair sample for analysis by the Lab and to consider and purchase any supplements or other items from the Lab, are being independently made by User after review of the Lab’s products and services at the herein-referenced website of the Lab. PHCSLLC is not a health care practitioner or provider of professional health care services (collectively, a “Provider”) or a broker for any health care products or services. User acknowledges and agrees that other than submittal of User’s hair sample for analysis by the Lab under the Program, for which payment is being made to the Lab through PHCSLLC at market rates, there is no requirement under these Terms or any other agreement, that PHSCLLC refer any patient, or influence the referral of any patient, to the Lab or any Provider for the provision of any health care products or services. No payment in relation to the Program is in return for the referral of patients to the Lab, to any Provider or in return for purchasing or ordering of health care services or health care supplies from the Lab or any Provider. Specifically, User understands and agrees that payments and benefits to PHCSLLC hereunder do not require, are not payment for and are not in any way contingent on the referral of (or any other arrangement for the referral of) any item or service offered to patients of the Lab or any health care practice in any facility, center or operation controlled, managed or operated by the Lab. Further, nothing in these Terms or in any functions performed in connection herewith, shall be construed as authorizing, agreeing to, consenting to, permitting or acknowledging any referral by the Lab, or by any health care professional employed or contracted by the Lab, to any entity outside the Lab’s or any Lab practitioner’s practice, practice group or office, with whom the Lab or such practitioner, as the case may be, has a financial relationship or compensation arrangement, for the provision of any health care services, it being understood that should the Lab or any Lab practitioner, as the case may be, elect to partake in such activity, the Lab or such Lab practitioner does so at his/her/its own risk and without PHCSLLC’s approval or participation.
- Laboratory Terms. While these Terms apply generally to User’s access to, review of, participation and entry into the Program made available at or through the Site, each service and product provided by or through the Lab may have its own rules, terms and conditions, which are hereby incorporated herein and integrated herewith by this reference. Such rules, terms and conditions will be determined solely by the Lab and set forth at the Lab’s website identified in Section 2, above. User is expected to comply fully with all rules, terms and conditions required by the Lab in connection with the Program, provided that in the event of any conflict or inconsistency between these Terms and such Lab’s terms and conditions in connection with such products and services provided by the Lab, these Terms shall govern and take precedence. In no event and under no circumstance shall PHCSLLC be responsible or liable to any User or the Lab, or to any third party, for or in relation to the Lab’s or User’s compliance with any terms or conditions required in connection with the Lab’s provision of products or services in relation to the Program.
- No Reliance. User hereby recognizes, acknowledges and agrees that User’s decision to utilize any product or service of the Lab, through the Program or otherwise, including without limitation the Lab’s testing of User’s hair sample, is that of User and User alone. By making the Lab’s products and services available through the Program, PHCSLLC does not necessarily endorse the Lab, or any of the Lab’s practitioners, or the products, services, businesses or endeavors promoted or otherwise depicted in connection therewith. PHCSLLC likewise does not encourage or discourage User from utilizing the Lab or any other lab providing similar products or services. In considering the Program and utilization of any of the Lab’s products and services in connection therewith, User, his/her advisers, if any, and his/her representatives, if any, have relied only on their own independent information, assessment and evaluation, including that pertaining to any information provided at or through the Site or the Lab’s website(s) in connection with the Lab. In no event and under no circumstance shall PHCSLLC be responsible or liable to any User or the Lab, or to any third party, for any decision by any User to utilize the Lab, or to sample, purchase, use or utilize any products, goods or services promoted or otherwise depicted in connection with the Lab, or to enter into any business relationship with the Lab. In the event User sustains any damages or injuries, suffers any losses, or incurs any costs or expenses, in relation to the Lab, or any products or services provided by the Lab, User’s sole recourse, if any, shall be against the Lab, and in no event and under no circumstance against PHCSLLC.
- Price and Payment Terms Subject to Change. Because PHCSLLC reserves the right, in its sole discretion, to change the price(s) of the Materials and Program, and each of them, at any time, such price(s) are subject to change each time User accesses the order page for the Materials and Program at the Site. In addition, all payment terms are similarly subject to change by PHCSLLC. Unless and until User places an order at the Site for the Materials and the Program, and such order is confirmed, User shall have no expectations as to price or payment terms based on previous access to and receipt of information at the Site. In any event, payment must be received by PHCSLLC prior to PHCSLLC’s acceptance and confirmation of an order. Payment for the Materials and the Program is to be made by credit card at the time of order, whereupon the portion of such payment allocated to the Lab’s testing of User’s hair sample immediately shall become non-refundable. Any remaining payment by User in relation to the Program is not refundable except upon PHCSLLC’s breach of any of its express limited warranties hereunder as to the Materials and the Program ordered. Orders and these Terms are not binding upon PHCSLLC until accepted and confirmed by PHCSLLC.
- Authorized Use.
(a) Limited License. PHCSLLC grants User a non-exclusive, limited license to access and make use of the Site for legal purposes and uses and that are otherwise permitted by these Terms, namely to access, use and utilize the Materials and the Program through the Site, solely for the purposes set forth in these Terms. This license does not include any resale or commercial use of the Site, or any contents thereof, or any Materials or the Program; any collection and use of any listings, descriptions or prices, whether or not related to any Materials or the Program; any derivative use of the Site, or any contents thereof, or any Materials or the Program except as expressly set forth in these Terms; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools. Except as expressly approved in writing by PHCSLLC in PHCSLLC’s sole discretion and consistent with these Terms, User shall not: (i) sell, resell, sublicense, assign, share or otherwise allow the use of the Site, Materials or Program, or any of them, or any contents therein, thereof or thereat, by or for the benefit of any other person, entity or group; (ii) download, copy, modify, publish, transmit, create derivative works from or in any way duplicate, replicate, extract or transfer any content at the Site, or made available through the Site, including without limitation the Materials and the Program; or (iii) use or utilize the Site, Materials or Program, or any of them, for any purpose whatsoever other than to participate personally in the Program and utilize the Materials for personal information only, and not for any commercial, clinical or professional purposes.
(b) Posting, Housing and Storing of Content. User shall have the ability to post, house and store certain limited content (collectively, the “User Content”) at the Site upon prompting. User shall maintain his/her own User Content provided and used in connection with the utilization of the Site, Materials and Program, and to test to ensure that User Content is working as expected. PHCSLLC will not secure, maintain, test or alter User Content in any way. PHCSLLC does not warrant that any User Content shall be made available after expiration or termination of the Program or this Agreement. User shall maintain a copy of all User Content in an accessible way prior to expiration or termination of this Agreement, provided that User Content, including without limitation proprietary Program information and training materials, shall not be returned to User once uploaded to the Site or the Program. Any User Content uploaded to the Site or Program shall be for the sole use by User and PHCSLLC, provided that PHCSLLC will not share any such User Content with any other user, customer or any third party except as authorized under this Agreement and as reasonably needed to operate and maintain the Site, Materials and Program, and provided further that upon expiration or termination of this Agreement, User shall have no further ability to access or use the Site, or Program or any data User may have stored therein or thereat. PHCSLLC shall retain all User Content stored in or at the Site or the Program for a period of ninety (90) days after the effective date of any expiration or termination of this Agreement and the Program, and so long as User has paid all amounts due to KHLLS in connection with the Program, PHCSLLC shall during such ninety (90) day period provide a copy of such data, in an export format from the Site or Program, as the case may be, to User at User’s request. Upon the expiration of such ninety (90) day period, User agrees that PHCSLLC may purge all User Content from the Site and Program.
(c) Access to Patient Health Information. In connection with the Program, and as part of the User Content, User shall disclose to PHCSLLC, and PHCSLLC may disclose to third parties, including without limitation the Lab, certain patient information of User that is subject to the Health Insurance Portability and Accountability Act of 1996, as amended from time to time (“HIPAA”). User agrees to cooperate with PHCSLLC in securing all such patient information of User reasonably needed for the Program and shall execute all HIPAA waivers, disclosures and authorizations accordingly. Any Provider performing health care services in relation to the Program, including without limitation the Lab, is a “covered entity”, as that term is defined in the HIPAA Standards for Privacy of Individually Identifiable Health Information and the Standards for Security of Electronic Protected Health Information, 45 C.F.R. Part 160 and Part 164, Subparts A, C and E (the “HIPAA Regulations”), and the Health Information Technology for Economic and Clinical Health Act, as incorporated in the American Recovery and Reinvestment Act of 2009 (the “HITECH Act”) (collectively, HIPAA, the HIPAA Regulations and the HITECH Act are referred to as the “Requirements”), and such Provider must comply with the Requirements. The Requirements mandate that each such Provider enter into, with its “business associates”, as that term is defined in 45 C.F.R. §160.103, an agreement containing certain minimum safeguards. Certain of the services to be provided by PHCSLLC hereunder in connection with such a Provider may cause PHCSLLC to be a business associate of such Provider for purposes of the Requirements. To the extent any Provider, including without limitation the Lab, as applicable, is a “covered entity” for the purposes of the Requirements, and such provider provides certain patient information to PHCSLLC in connection with the Program such that PHCSLLC is a “business associate” of such Provider, PHCSLLC shall comply with the terms and conditions set forth in the “HIPAA Business Associate Agreement” made available at the Site, which is, incorporated herein and integrated herewith by this reference, with respect thereto. To the extent PHCSLLC discloses any covered patient information to any Provider or to any third party in relation to the Program, PHCSLLC shall enter into a stand-alone business associate agreement with terms and conditions equivalent to those in such HIPAA Business Associate Agreement, with PHCSLLC in the role of the Provider.
(d) No Modifications or Deep Links. User is not authorized to download or modify the Site, or any portion thereof. Unless otherwise authorized in writing by PHCSLLC, no User or other third-party is authorized to deep link to any web page contained in, on or at the Site (i.e., no links are permitted under any circumstances from third-party websites to any page of the Site other than the home page thereof). Such links are expressly prohibited. In addition, no User or third party may link to the home page of any of the Site in such a manner as to create a reasonable possibility or likelihood of confusion by users of the third party website as to the true ownership or sponsorship of the Site, and/or as to the existence or lack thereof of some affiliation or other relationship between PHCSLLC and the third party and/or its website.
(e) Posting Restrictions. User may not post or transmit at or through the Site, including without limitation at or in any such comment boxes, any material that: (i) is unlawful, misleading, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, confidential or proprietary to third parties, or otherwise objectionable; (ii) encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law; or (iii) is inconsistent with the non-religious and non-political purposes of the Site; each as determined by PHCSLLC in its sole discretion. User is also prohibited from using the Site in any way that restricts or inhibits any other Site user from using or enjoying the Site. Also, User shall not use or utilize the Site for any illegal purpose, including but not limited to, uses in violation of the CAN-SPAM Act of 2003, or in violation of any privacy laws. User understands and acknowledges that PHCSLLC cannot, does not and will not monitor all material posted or transmitted by users and third party information providers at the Site and Program. Although PHCSLLC has no obligation to review or remove any such content, in general, PHCSLLC reserves the right to remove any content posted at the Site or within the Program at any time for any reason in its sole discretion, including without limitation copyrighted content or other proprietary information of any kind that has been posted or linked to without the express permission of the owner of that material. Decisions in such regard shall be made by PHCSLLC in its sole discretion after actual notice of such posting.
(f) No Harmful Materials. User shall refrain from uploading, posting, e-mailing, or otherwise transmitting to or through the Site, or to or through any other customer or user at the Site, any messages, programs, or other materials (including but not limited to Trojan Horses, malware, spyware, viruses, worms, and the like) that contain software viruses or any other computer code, files, or programs designed to interrupt, destroy or limit the functionality of or perform any invasive measures upon any computer software or telecommunications equipment.
(g) User Responsibility. PHCSLLC may enact and enforce reasonable rules of use in addition to these Terms, as promulgated and amended from-to-time by PHCSLLC regulating the use of the Site by all parties, including without limitation User, and User agrees to be bound by such rules.
7. Informational Purposes Only.
The site, materials, and program are for personal informational purposes only and should not under any circumstances be considered suitable for or a substitute for professional diagnosis, care, treatment, management, maintenance or advice regarding physical, mental, emotional, psychological or psychiatric health. PHCSLLC’s Principal Kristen Harper is a certified nutrition consultant with a hair analysis diploma, and while she is also studying to become a Naturopathic Doctor, Kristen Harper is not a doctor or an otherwise licensed, certified or registered health care professional. If the user or any other person believes he or she might require any professional diagnosis, care, treatment, management, maintenance or advice regarding physical, mental, emotional, psychological or psychiatric health, the user or any other person is encouraged to consult promptly with a properly licensed, certified and registered physician, psychologist, psychiatrist, counselor, homeopathic professional, or other health care professional. Any such health care decision is strictly that of the user or any other person.
THE SITE, MATERIALS AND PROGRAM ARE FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE USED AS A DETERMINANT FACTOR IN USER’S OR ANY OTHER PERSON’S PHYSICAL, MENTAL, PSYCHOLOGICAL, OR EMOTIONAL HEALTH CARE, HEALTH TREATMENT OR HEALTH MAINTENANCE. WHILE PHCSLLC’S PRINCIPAL, KRISTEN HARPER, IS PRESENTLY STUDYING TO BECOME A NATUROPATHIC DOCTOR, AND WHILE SHE IS A CERTIFIED NUTRITION CONSULTANT WITH A HAIR MINERAL ANALYSIS DIPLOMA THROUGH WESTBROOK UNIVERSITY, IN ADDITION TO EARNING A BACHELOR OF SCIENCE IN BUSINESS ADMINISTRATION MANAGEMENT DEGREE WITH A CERTIFICATE IN ENTREPRENEURSHIP AND A MASTER OF ADMINISTRATION DEGREE WITH AN EMPHASIS IN HEALTH PROMOTION, MS. HARPER WORKS SOLELY AS AN UNLICENSED NUTRITIONAL CONSULTANT. NEITHER PHCSLLC, NOR ANY PRINCIPAL, EMPLOYEE, AGENT OR REPRESENTATIVE OF PHCSLLC, IS A PROFESSIONALLY LICENSED, REGISTERED OR CERTIFIED DOCTOR OF MEDICINE, NATUROPATHIC PHYSICIAN, HOMEOPATHIC PHYSICIAN, NURSE, PHARMACIST, PHYSICAL THERAPIST, PSYCHOLOGIST, BEHAVIORAL HEALTH PROFESSIONAL, PHYSICIAN ASSISTANT, OR OTHER HEALTH OR HEALTH-RELATED PROFESSIONAL (COLLECTIVELY, “HEALTH CARE PROFESSIONALS”, AND EACH A “HEALTH CARE PROFESSIONAL”). PHCSLLC DOES NOT AND WILL NOT DIRECT ANY HEALTH CARE PROFESSIONAL, INCLUDING WITHOUT LIMITATION THE LAB, THROUGH THE SITE, MATERIALS OR PROGRAM OR OTHERWISE, AND UNDER NO CIRCUMSTANCES SHALL PHCSLLC BE CONSIDERED AS PERFORMING OR PROVIDING ANY DIAGNOSTIC, TREATMENT OR PRESCRIPTIVE SERVICES THAT ARE PROVIDED BY HEALTH CARE PROFESSIONALS (COLLECTIVELY, “HEALTH CARE SERVICES”), INCLUDING WITHOUT LIMITATION SERVICES REGULATED BY ANY APPLICABLE MEDICAL BOARD OR BOARD OF NATUROPATHIC MEDICINE, NURSING, MEDICAL EXAMINERS, PHARMACY, PHYSICAL THARAPY, PSYCHOLOGIST EXAMINERS, PHYSICIAN ASSISTANTS, HOMEOPATHIC AND INTEGRATED MEDICINE EXAMINERS, OR BEHAVIORAL HEALTH EXAMINERS, OR THE COMMISSION ON DIETETIC REGISTRATION OR ACADEMY OF NUTRITION AND DIETETICS. NO INFORMATION PROVIDED BY OR THROUGH THE SITE, MATERIALS OR PROGRAM SHOULD EVER BE CONSIDERED A SUBSTITUTE FOR ANY HEALTH CARE SERVICES, AND ALL USERS WHO POTENTIALLY NEED ANY HEALTH CARE SERVICES SHOULD CONSULT WITH ONE OR MORE APPROPRIATE HEALTH CARE PROFESSIONALS. PHCSLLC ASSUMES NO RESPONSIBILITY WHATSOEVER, AND SHALL NOT IN ANY EVENT OR UNDER ANY CIRCUMSTANCES, BE LIABLE IN RELATION TO ANY USER’S DECISION CONCERNING HEALTH CARE SERVICES AND/OR HEALTH CARE PROFESSIONALS, INCLUDING WHETHER OR NOT TO SEEK HEALTH CARE SERVICES, WHICH HEALTH CARE SERVICES TO SEEK AND WHICH HEALTH CARE PROFESSIONALS TO UTILIZE. USER SHALL REMAIN SOLELY RESPONSIBLE FOR ALL USER DECISIONS THAT IN ANY MANNER COULD BE CONSIDERED AS RELATED IN ANY WAY TO THE SITE, MATERIALS OR PROGRAM, IT BEING UNDERSTOOD AND AGREED THAT ALL SUCH DECISIONS, INCLUDING IF AND HOW USER MAKES USED OF THE SITE, MATERIALS OR PROGRAM, ARE USER’S AND USER’S ALONE, MADE INDEPENDENTLY OF PHCSLLC AND UNDER NO INFLUENCE WHATSOEVER OF PHCSLLC OR THE SITE, PROGRAM OR MATERIALS. ANY THIRD PARTY HEALTH CARE PROFESSIONAL, INCLUDING WITHOUT LIMITATION THE LAB, PROVIDING ANY MATERIALS, SERVICES OR PRODUCTS IN RELATION TO THE PROGRAM SHALL REMAIN SOLELY AND INDEPENDENTLY RESPONSIBLE FOR COMPLIANCE WITH SUCH THIRD PARTY’S PROFESSIONAL LICENSING, REGISTRATION AND CERTIFICATION REQUIREMENTS AND SHALL NOT UNDER ANY CIRCUMSTANCES BE CONSIDERED AS PROVIDING ANY HEALTH CARE SERVICES THROUGH PHCSLLC. SUCH THIRD PARTY HEALTH CARE PROFESSIONAL SHALL BE SOLELY AND DIRECTLY RESPONSIBLE TO USER IN CONNECTION WITH SUCH HEALTH CARE SERVICES.
- User Account and Password. User shall propose, and PHCSLLC shall approve and assign, a unique username and password to access pages at the Site regarding the use and utilization of the Program and Materials. User shall also have the opportunity to change such username and password from time to time in accordance with PHCSLLC’s security policies, incorporated herein and integrated herewith by this reference. User may not authorize any other person or party to access the Site using User’s username and password. User acknowledges and agrees that User shall be responsible for maintaining the confidentiality of the usernames and passwords, and to the extent caused by, arising from or attributable to the acts and omissions of User, or User’s agents, employees, representatives or other parties for whom User is legally responsible, User shall be liable for any consequences that may result from their disclosure, including but not limited to any resulting access to, use of, or modification of the Site, or any Materials or the Program, and access to, integrity of and loss of any User Content. If User uses or causes or permits anybody to use the Site, User agrees to accept responsibility for all activities that occur under User’s account, username and/or password. PHCSLLC reserves the right to refuse service, terminate accounts, or remove or edit content, including without limitation User Content and Materials, in its reasonable discretion. User’s username, account and password are non-transferable, except upon written agreement by PHCSLLC, in PHCSLLC’s sole discretion, and may not under any circumstances be shared. User agrees to (a) maintain all equipment necessary for User’s access to and use of the Site; (b) maintain the security of User’s user account identification, username, password, User Content and any other confidential information relating to User’s account at the Site; and (c) take responsibility for all charges resulting from use of User’s account at the Site, including without limitation those pertaining to any unauthorized use prior to User’s notifying PHCSLLC of such unauthorized use and taking the legal steps to prevent its further occurrence by contacting PHCSLLC to change User’s username and password.
9. User Profile Data and Content Input and Maintenance. User shall have the sole responsibility to input and maintain User Content at the Site. Such User Content, all of which is incorporated into and integrated with these Terms by this reference, shall under all circumstances include updated profile data of User, namely User’s full legal name, together with User’s most recent address, telephone number(s) and e-mail address(es). User shall periodically check and test to ensure that all User Content is maintained and up to date. PHCSLLC shall exercise reasonable efforts to secure User Content, but PHCSLLC shall not maintain, test or alter User Content in any way. Except as otherwise expressly provided in these Terms, PHCSLLC does not warrant that any User Content shall be maintained or up to date in any manner, and PHCSLLC shall not have any responsibility for any mistaken provision of Materials due to User’s failure to maintain and update User Content as appropriate. Specifically, User shall remain solely responsible for all errors or problems in User Content impacting the Site or the effectiveness or functionality of the Materials or Program, maintaining and providing any necessary operating environments in which User accesses, utilizes or applies the Site, Materials or Program, errors caused by third party software or hardware or the configuration of such items as they relate to such access, utilization or application, and interruptions in access to the Site, Materials or Program, or any of them, or other downtime attributable to any internet provider of User.
- Third Party Hosts. User acknowledges that certain aspects, features and functions of the Site reside in computing environment(s) of one or more third party hosting companies, which comprise both servers and telecommunications services, and that certain uses of the capabilities offered by, at or through the Site may render the Site inaccessible or may impair the performance of the computing environment for User and/or other users at the Site and/or PHCSLLC’s other customers. In the event of any such use by User, PHCSLLC shall so notify User, and User shall be obligated to put an immediate stop to such use and will notify PHCSLLC, in writing, that User has stopped such use. In the event of User’s failure to put an immediate stop to such use, PHCSLLC reserves the right to suspend or terminate User’s access to the Site.
- Security. PHCSLLC shall exercise commercially reasonable efforts to operate, maintain and provide the Site in good working order and shall establish and maintain commercially reasonable security measures designed to protect User from any security breaches at or through the Site. However, PHCSLLC shall not under any circumstances be responsible for any security breaches caused by, arising from, resulting from or attributable to any factor other than PHCSLLC’s gross negligence or intentional misconduct. Specifically, among other things, PHCSLLC shall have no responsibility for any security breaches caused by, arising from, resulting from or attributable to any features employed by any third party hosting company, it being understood and agreed that User may not under any circumstances hold PHCSLLC liable therefor and that User’s recourse therefor shall be limited to the appropriate third party hosting company or companies.
- Site Operation and Maintenance. PHCSLLC shall use reasonable efforts to maintain the Site in condition and operating order. PHCSLLC shall not be responsible for any inaccessibility of User at the Site due to maintenance and upgrades of the Site or any corresponding Internet servers or software. PHCSLLC shall use reasonable efforts to ensure that any period of inaccessibility shall not exceed 48 hours. In the event that the Site becomes inaccessible, or operation thereof fails in any way, User shall give written notification of the inaccessibility or the failure, and in the case of failures, sufficient information to permit replication and analysis. Upon receipt of notice from User of any inaccessibility or failure, PHCSLLC shall use reasonable efforts to diagnose the cause of the inaccessibility or failure. Upon completion of the diagnosis, PHCSLLC shall advise User of the cause of the inaccessibility or failure and shall use efforts that PHCSLLC considers to be reasonable in PHCSLLC’s sole discretion, without charge, to restore access to and use of the Site or avoid the failure. Notwithstanding the foregoing, PHCSLLC shall have no obligation to resolve any inaccessibility or failure caused by (a) modification of the Site by anyone other than PHCSLLC, (b) use of the Site for any purpose other than intended, (c) misuse or incorrect use of the Site, or (d) malfunction of any User or third party’s computer or any telecommunications services not under the direct control of PHCSLLC. PHCSLLC shall provide User general Site support between the hours of 8:30 A.M. and 5:30 P.M. Arizona time, Monday through Friday, excluding holidays. PHCSLLC shall implement the data archive procedures resident in the Site, Materials and Program at reasonable regular intervals, and User acknowledges that the liability for loss, destruction or damage to any data User may store in PHCSLLC’s computing environment, including without limitation any User Content, is limited pursuant to these Terms. PHCSLLC has the sole right to maintain and update the logical and physical organization and structure of the databases and associated files within the Site.
- Third Party Content. The Site may contain information, data, software, photographs, graphs, videos, typefaces, graphics, audio and other material provided by parties other than PHCSLLC. PHCSLLC does not control such content supplied by parties other than PHCSLLC. Any materials, opinions, advice, statements, services, offers, or other information that constitutes part of any content at the Site, expressed or made available by third parties and not by PHCSLLC are those of the respective authors or distributors thereof and not of PHCSLLC. Neither PHCSLLC, nor any third party, including any customer or any user of the Site, guarantees the accuracy, completeness, or usefulness of any content at the Site, nor of merchantability or fitness for any particular purpose. PHCSLLC neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, or statement made at, in or on the Site by anyone other than directly by PHCSLLC and its actually authorized employees, agents and representatives. Under no circumstances shall PHCSLLC be liable for any loss, damage or harm caused by User’s reliance on information obtained through the Site. It is the responsibility of User to evaluate the information, opinion, advice or other content made available through the Site.
- Links to Other Sites. With the use of the Site, Materials and Program, User might have the ability to link to other, non-PHCSLLC Internet content and to upload User’s own non-PHCSLLC provided informational content. User shall be responsible for obtaining access authorization from any and all content sources User chooses to utilize that are not PHCSLLC, and User shall indemnify and hold PHCSLLC harmless from any and all costs, expenses, injuries, damages and claims that are attributable to any use of content, programs and materials uploaded or linked to by or through User and not directly by PHCSLLC. The Site may reference or link to third-party websites throughout the Internet. PHCSLLC has no control over such third-party websites or the content within them. PHCSLLC cannot and does not guarantee, represent or warrant that the content contained in such third-party websites is accurate, legal or inoffensive. PHCSLLC does not endorse the content of any third-party website, nor does PHCSLLC warrant that any such third-party website will not contain viruses or otherwise impact User’s computer. PHCSLLC does not assume any responsibility or liability for the actions, materials products, services, and content of all these and any other third parties. If User chooses to link to or use a third-party website, User should carefully review such third party’s privacy statement and other terms and conditions of use. By using the Site to search for or link to another third-party website, User agrees and understands that User may not make any claim against PHCSLLC for any damages or losses, whatsoever, resulting from User’s use of or access to the Site to obtain search results or to link to another website.
- Confidentiality and Intellectual Property. In connection with these Terms, and User’s use and utilization of the Materials and Program at, by and through the Site, PHCSLLC might provide, and User might receive, certain “Confidential Information” concerning one or more businesses, products, materials and/or services of PHCSLLC (collectively, the “PHCSLLC Items”), which PHCSLLC deems to be highly proprietary and valuable.
- Scope of Confidentiality Protection. For the purpose of this Section 15, “Confidential Information” shall include all information, whether written or oral, that is prepared, uniquely known and/or provided by PHCSLLC, any member or principal of PHCSLLC, and/or any affiliate, parent, subsidiary, principal, member, officer, director, employee, agent, representative, predecessor, successor or assign of any of them that is not User (collectively, the “PHCSLLC Parties”, and each an “PHCSLLC Party”), including without limitation that related to prospective development of the PHCSLLC Items, or any of them, descriptions, compositions and features of the PHCSLLC Items, or any of them, operational, logistical, financial, physical, legal and other practical requirements for the PHCSLLC Items, or any of them, expected financial gains to be realized from the PHCSLLC Items, or any of them, identities of parties potentially involved with the PHCSLLC Items, or any of them, including without limitation actual and prospective vendors, contractors, consultants, distributors, suppliers, and other business partners of PHCSLLC related to the PHCSLLC Items, or any of them, prospective impacts of the PHCSLLC Items, or any of them, and other information related to the PHCSLLC Items, or any of them, or PHCSLLC’s ongoing or prospective involvement with the PHCSLLC Items, or any of them, which is not readily available to the public. For the purpose of this Section 15, “Confidential Information” shall also mean (i) the contents of these Terms, with the understanding that the existence of these Terms and User’s general obligation of confidentiality hereunder may and should be disclosed to all third parties who seek or might receive any Confidential Information, (ii) all terms, conditions and features related to User’s access to and use and utilization of the Site, Materials and the Program, (iii) all Intellectual Property, as defined in Section 15(b), below, (iv) non-public information related to any and all PHCSLLC Items developed, performed or generated by or for PHCSLLC or any of the PHCSLLC Parties, and (v) proprietary information relating to the business, operations, methodologies, technologies, personnel, vendors, financial condition or procedures of PHCSLLC or any of the PHCSLLC Parties that is not generally known to the public and that, under all of the circumstances, ought reasonably to be treated as confidential and/or proprietary. Confidential Information shall include any information, whether or not labeled “confidential”, that by its nature could be deemed to be confidential, sensitive, privileged and/or proprietary information of PHCSLLC or any of the PHCSLLC Parties. User shall disclose the Confidential Information solely as necessary to access, use and utilize the Site, Materials and the Program as expressly set forth in these Terms, and User shall consider and utilize the Confidential Information solely for such purposes. Confidential Information may be disclosed orally, visually, and in written form (including but not limited to electronic or other media).
- Intellectual Property. All Intellectual Property in any way related to any Confidential Information provided by PHCSLLC or any of the PHCSLLC Parties to User is hereby acknowledged to remain in the exclusive possession of PHCSLLC, the applicable PHCSLLC Party, or the applicable licensor thereof (the “PHCSLLC Licensor”), as appropriate, and any rights to or interests in such Intellectual Property, or any permutation or derivation thereof, are hereby fully disclaimed, waived and renounced by User in favor of PHCSLLC, the applicable PHCSLLC Party, or the applicable PHCSLLC Licensor, as appropriate, subject to the limited license provided in Section 6(a), above. For the purposes of this Section 15(b), “Intellectual Property” means all intellectual property owned, licensed (as licensee) or otherwise used by PHCSLLC and/or any of the PHCSLLC Parties, arising from or in respect of, or that might arise from or relate to, the following, whether protected, created or arising under the laws of the United States or any other jurisdiction, whether or not registered with any governmental authority: (i) all patents and applications therefor, including continuations, divisionals, continuations-in-part, reexaminations, or reissues of patent applications and patents issuing thereon (collectively, “Patents”), (ii) all trademarks (registered or common law marks), service marks, trade names, service names, brand names, trade dress rights, logos, domain names, Internet URL addresses, corporate names and general intangibles of a like nature, together with the goodwill associated with any of the foregoing, and all applications, registrations and renewals thereof (collectively, “Marks”), (iii) all copyrights and registrations and applications therefor, works of authorship and mask work rights (collectively, “Copyrights”), (iv) all discoveries, concepts, ideas, research and development, know-how, formulae, inventions, compositions, manufacturing and production processes and techniques, technical data, data compilations, text information and materials, graphics, procedures, designs, drawings, specifications, databases, and other proprietary and confidential information, whether or not displayed, maintained or accessed on, at or through the Site, including without limitation Program participation and informational materials, vendor lists, user lists, customer lists, supplier lists, pricing and cost information, and business and marketing plans and proposals of PHCSLLC and/or any of the PHCSLLC Parties, in each case excluding any rights in respect of any of the foregoing that comprise or are protected by Marks, Copyrights or Patents, (v) all software, including all source code and open source code, and all related documentation; (vi) all artwork, designs, images, photographs or other content displayed, illustrated or otherwise used on or in connection with PHCSLLC’s websites, including without limitation the Site, or any websites of any of the PHCSLLC Parties or otherwise used in connection with PHCSLLC or any PHCSLLC Items, and (vii) all other technology and know-how uniquely in the possession of PHCSLLC and/or any of the PHCSLLC Parties.
- Restrictions Regarding Intellectual Property. Neither User, nor any affiliate, parent, subsidiary, principal, officer, director, employee, agent, representative, predecessor, successor, assign, legal or financial advisor, contractor or consultant of User that is not PHCSLLC, an applicable PHCSLLC Party or an applicable PHCSLLC Licensor as referenced in Section 15(b), above (collectively, the “User Parties”, and each a “User Party”), may apply for a right in any Intellectual Property, or use or utilize any Intellectual Property for any purpose other than that provided under Section 6, above, except upon the express written consent of an actually authorized representative of PHCSLLC in the sole and absolute discretion of PHCSLLC, whether or not any Intellectual Property has been issued, registered, or in any other way afforded any rights by the United States Patent and Trademark Office, the United States Copyright Office, or other similar administrative agency. To the extent User or any User Party may claim any rights, direct, derivative or otherwise, related to any Intellectual Property, other than the limited license provided under Section 6(a), above, User hereby disclaims, and shall cause each User Party to disclaim, such rights, and hereby assigns, and shall cause each User Party to assign, such rights to PHCSLLC. User agrees to execute and to cause each User Party to execute, and in the alternative hereby grants to PHCSLLC, and shall cause each User Party to grant to PHCSLLC, power of attorney to execute and record in User’s stead, and in each User Party’s stead as applicable, any and all documentation, including without limitation disclaimers and assignments of Intellectual Property rights, as necessary to document publicly, legally, and officially the exclusive ownership of all Intellectual Property referenced in Section 15(b), above, by PHCSLLC, the applicable PHCSLLC Party, or the applicable PHCSLLC Licensor, as appropriate. Neither User, nor any third party, may market, utilize, reuse or redistribute any Intellectual Property, except as authorized hereunder or except as approved in writing by an actually authorized representative of PHCSLLC. With the exception of the limited license under Section 6(a), above, no license or other right of any kind in any Intellectual Property is granted or otherwise provided to User, to any User Party or to any third-party in relation to these Terms or User’s use of the Site, Materials or Program. Neither User nor any User Party may frame or utilize any framing techniques to enclose any PHCSLLC Intellectual Property or Confidential Information. Neither User nor any User Party may use any metatags or other hidden text utilizing PHCSLLC’s Intellectual Property. Any unauthorized use terminates the permission or license granted by PHCSLLC under Section 6(a), above, whereupon PHCSLLC may but is not obligated to terminate User’s access to the Site, Materials and Program. The Site contains copyrighted material, trademarks and other proprietary information, which may include text, software, photos, video, graphics, music and sound. PHCSLLC owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. Neither User nor any User Party may modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the Site’s content, in whole or in part. Except as otherwise expressly permitted under copyright law or expressly allowed herein, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without the express written permission of PHCSLLC. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made.
- Restrictions Regarding Disclosure of Confidential Information to Third Parties. User shall, and shall cause each User Party to, hold PHCSLLC’s Confidential Information, whether delivered before or after the date hereof, in strict confidence and shall refrain from and cause each User Party to refrain from: (i) providing, copying, disclosing, divulging or otherwise making available the Confidential Information to any other person or entity without the prior written consent of an actually authorized representative of PHCSLLC, in PHCSLLC’s sole discretion; and (ii) removing or permitting to be removed from such Confidential Information any notice indicating the confidential nature of, or PHCSLLC’s proprietary right in and to the Confidential Information. User shall, and shall cause each User Party to, exercise at least the same degree of care and protection with respect to PHCSLLC’s Confidential Information that User or such User Party, as applicable, would exercise with respect to User’s (or such User Party’s) own confidential, sensitive, privileged and/or proprietary information, which in no event shall be less than the highest level of care for the industry. User shall, and shall cause each User Party to, take all precautions necessary to ensure that the Confidential Information shall not be, or permitted to be, shown, copied or disclosed to other parties, except as expressly provided in this Section 15. In the event of written consent to disclose Confidential Information to any other party, User shall, and shall cause each User Party to, advise that other party of his/her/its obligations with respect to the Confidential Information, and have that party acknowledge in writing that the terms and conditions of this Section 15 may be directly enforced by PHCSLLC against him/her/it as a condition to such disclosure. User or the User Party, as applicable, shall provide an original of such written acknowledgment to PHCSLLC, if so requested by PHCSLLC. In any event, User or such User Party, as applicable, shall disclose the Confidential Information to the other only as necessary for the purposes authorized in writing by an actually authorized representative of PHCSLLC. In addition, User or such User Party, as applicable, shall ensure that confidentiality notices are included on copies of Confidential Information so provided and shall account for the return or destruction of the Confidential Information and all reproductions thereof, if so requested by PHCSLLC. In any event, PHCSLLC consents to disclosure of Confidential Information by User to any User Party, or such User Party’s employees, contractors, consultants and advisers as necessary for the purposes set forth in 15(a), above, provided such disclosures are subject to the remaining requirements of Sections 15(c) and 15(d) of these Terms.
- Exception for User Content. Any proprietary User Content that is collected or generated through use of the Site, Materials or Program, or any of them, shall be deemed Confidential Information of User, which shall be subject to the provisions of Section 15 of these terms and the corresponding restrictions thereon as applied to PHCSLLC’s protection and disclosure thereof, in any event subject to this Section 15(e). User shall be solely responsible for the accuracy, quality, integrity, reliability, appropriateness, legality and intellectual property ownership or right to use all of the User Content, and User shall have indemnity obligations to PHCSLLC therefor as provided below. User represents and warrants that (i) User has the appropriate authority, license or other rights to use all such User Content and to provide such User Content as contemplated in these Terms; (ii) User has and will maintain all rights, consents and approvals required to grant to PHCSLLC the rights to access, use, adapt, display and modify User Content in accordance with this Section 15(e) and will upon PHCSLLC’s request provide proof of the same; and (iii) User shall not knowingly infringe upon the intellectual or other proprietary rights of any third party. User hereby grants to PHCSLLC a nonexclusive, irrevocable, transferable, perpetual, worldwide, royalty-free and fully paid-up license to access, use, adapt, display and modify any and all User Content that is collected or generated through use of the Site, Materials or Program for any legal purpose, including without limitation to perform PHCSLLC’s obligations under these Terms, to enforce these Terms, to analyze, transfer and use such User Content in an aggregated form from which all personally identifiable information has been removed, for purposes of benchmarking system performance, preparing statistics, system metrics and other purposes, and to market the Site, Materials and Program, as well as the right to sublicense such rights to any holding provider and other third parties as necessary for PHCSLLC to do so or as may be reasonably necessary or appropriate in connection with the provision of the Site, Materials and Program by PHCSLLC and User’s use thereof.
- Ownership of Confidential Information. With the exception of User Content as described in Section 15(e), above, and subject to the licenses set forth in Sections 6(a) and 15(e), above, all Confidential Information, including reproductions thereof, shall be deemed to be and remain the exclusive property of PHCSLLC (or PHCSLLC Party or PHCSLLC Licensor, as appropriate), and no ownership rights of any kind in and to any of PHCSLLC’s Confidential Information are transferred hereby, hereunder or in connection herewith to User, any User Party or any third party. User acknowledges that User does not acquire any such ownership rights by accessing and utilizing copyrighted material or otherwise using the Site. All rights are reserved.
- Exceptions to Confidentiality. The foregoing obligations of confidentiality shall not apply to any Confidential Information, which: (i) is or becomes available to the public through no act or omission of User, any User Party or any other party in violation of the terms and conditions of this Section 15; (ii) was already known by User at the time of the disclosure by PHCSLLC, as evidenced by User’s written records existing prior to the date of PHCSLLC’s disclosure; (iii) is lawfully obtained from a person or entity other than PHCSLLC or User without any obligation of confidentiality; (iv) is approved for release by PHCSLLC’s written authorization, but only to the extent of such authorization and subject to the further requirements set forth in Sections 15(c) and 15(d), above; (v) is required by law or regulation to be disclosed to any person, but only: (A) to the extent and for the purposes of such required disclosure and (B) after first giving PHCSLLC reasonable notice of such required disclosure and reasonable opportunity to contest such required disclosure; (vi) is disclosed in response to a valid order of a court or other governmental body or any political subdivisions thereof, but only to the extent of and for the purposes of such order, and only if User first promptly notifies PHCSLLC of the order and permits PHCSLLC to seek an appropriate protective order; or (vii) is developed independently for User by personnel not having access to any of PHCSLLC’s Confidential Information.
- Reverse Engineering / Independent Development. Notwithstanding any other provision of this Section 15 or these Terms, User shall not (and User shall not use any third party to), and User shall cause each User Party not to (and not to use any third party to) reverse engineer, decompile, disassemble, or otherwise attempt to discern the design, structure, internal workings, or other technology incorporated in any of PHCSLLC’s Confidential Information.
- Restrictive Covenant. In consideration of any of PHCSLLC’s Confidential Information, which User will receive or have access to, in connection with the Site, Materials and PHCSLLC Items, User shall not, and shall cause each User Party not to use or utilize any of PHCSLLC’s Confidential Information to: (a) directly or indirectly sell to, solicit or divert, or attempt to sell to, solicit or divert any customer, client or business affiliate of PHCSLLC for the purpose of or with the result of (I) competing with PHCSLLC with respect to the Site, Materials or Program, or any of them, (II) altering, modifying, diverting or precluding the development of any PHCSLLC business relationship involving the Site, Materials or Program, or any of them, or (III) otherwise interfering with business transacted with PHCSLLC with respect to the Site, Materials or Program, or any of them; or (b) directly or indirectly solicit or attempt to solicit, encourage, induce or entice PHCSLLC’s employees, contractors, suppliers or consultants to terminate or modify their employment, engagement or business relationship with PHCSLLC with respect to the Site, Materials or Program, or any of them.
- Obligation to Notify and Assist. User agrees to immediately notify PHCSLLC of any unauthorized use or disclosure of any of PHCSLLC’s Confidential Information related to User’s possession of such Confidential Information or any other breach of this Section 15 and these Terms, and User agrees to cooperate in every reasonable way to help PHCSLLC regain possession of any misused or mis-disclosed Confidential Information of PHCSLLC and prevent (or limit to the extent possible) its further unauthorized use or disclosure.
- No Warranty. All of PHCSLLC’s Confidential Information is provided “as-is”. PHCSLLC makes no warranty, express or implied, regarding the timeliness, accuracy, performance or completeness of any of PHCSLLC’s Confidential Information, except to the extent PHCSLLC actually knows of or actually discovers any inaccuracies, errors or omissions in such information, in which event PHCSLLC hereby warrants that it will promptly either correct or complete such information or report comprehensively and fully all inaccuracies, errors and omissions in such information.
- Non-Disparagement. Neither User, nor any User Party, shall at any time, directly or indirectly through third parties, actively or passively, disparage, question, criticize or otherwise make reference to any of the Site or Materials, or any of them, or to the Program, or to PHCSLLC or any PHCSLLC Party, or to any actions or failures to act of PHCSLLC or any PHCSLLC Party, or cause others to do so, if the effect of such action(s) reasonably could be anticipated to result in any harm to or adverse impact upon the reputation, business, interests or relations of PHCSLLC or any PHCSLLC Party, or to the morale among the work force of PHCSLLC or any PHCSLLC Party.
- Injunctive Relief. User recognizes and agrees that a breach of any or all of the provisions of Sections 6, 15 and 16, above, will constitute immediate and irreparable harm to PHCSLLC’s valuable business relations, for which damages cannot be readily calculated and for which damages and other remedies at law constitute an inadequate remedy. In the event User or any User Party attempts or threatens to violate its obligations under such Sections 6, 15 and 16, above, PHCSLLC shall have, in addition to any other remedies available to it, the right to injunctive relief enjoining any further breaches of such Sections 6, 15 and 16.
- Warranty Disclaimers. PHCSLLC ASSIGNS TO USER ANY WARRANTIES PROVIDED BY THE LAB AND OTHER PROVIDERS TO PHCSLLC WITH RESPECT TO SERVICES AND PRODUCTS PROVIDED IN RELATION TO THE PROGRAM. WITH THE EXCEPTION OF SUCH ASSIGNMENT, THE SITE, MATERIALS AND PROGRAM ARE PROVIDED AS IS, WHERE IS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. USER ACCEPTS, USES AND UTILIZES THE SAME AT USER’S OWN KNOWING RISK, AND THESE TERMS PROVIDE NO SUCH WARRANTIES. NOTHING AT THE SITE SHOULD BE CONSTRUED AS PROVIDING OR PROMISING ANY SUCH WARRANTIES. WITH THE EXCEPTION OF SUCH ASSIGNMENT, TO THE EXTENT PERMITTED BY LAW, PHCSLLC HEREBY EXPRESSLY DISAVOWS, AND USER HEREBY WAIVES AND DISCLAIMS, ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTIES, CONDITIONS, GUARANTEES OR REPRESENTATIONS, WHETHER ORAL, IN WRITING OR IN ELECTRIC FORM, EXPRESS OR IMPLIED. AMONG OTHER THINGS, NEITHER PHCSLLC NOR ANY OF ITS UNDERLYING SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSEES, EMPLOYEES, OFFICERS, DIRECTORS, ASSIGNEES, OR AGENTS WARRANT THAT THE SITE, OR THE INFORMATION PROVIDED VIA THE SITE, INCLUDING WITHOUT LIMITATION ANY OF THE MATERIALS OR THE PROGRAM, WILL BE UNINTERRUPTED, ERROR FREE, FULLY FUNCTIONAL, UP TO DATE, SATISFACTORY TO USER OR SUITABLE FOR USER’S PURPOSES; OR THAT USER SHALL ACHIEVE ANY PERSONAL RESULTS.
- Limitation of Liability. PHCSLLC SHALL HAVE NO LIABILITY FOR UNAUTHORIZED THIRD-PARTY ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, ANY INFORMATION CONTAINED AT THE SITE, OR ANY OF THEM THROUGH ACCIDENT OR THROUGH FRAUDULENT OR WRONGFUL MEANS OR DEVICES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL PHCSLLC, ANY PHCSLLC PARTY OR ANY OF PHCSLLC’S SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS OR LICENSEES, BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING IN ANY WAY FROM ANY MATERIALS PROVIDED ON, AT OR THROUGH THE SITE, OR THE USE OF THE INFORMATION OR THE RESULTS OF THE USE OF THE INFORMATION PROVIDED ON, AT OR THROUGH THE SITE, EVEN IF EACH IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN THE EVENT OF PHCSLLC’S RECKLESS OR INTENTIONALLY WRONGFUL CONDUCT, PHCSLLC’S LIABILITY SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED THE RESPONSIBILITY TO CORRECT THE SITE OR ANY MATERIALLY DEFECTIVE MATERIALS AT PHCSLLC’S EXPENSE, OR THE PRICE PAID FOR USE OF THE SITE AND ANY MATERIALS THAT ARE THE SUBJECT OF USER’S CLAIM. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
- Jurisdictional Limitations. NOTE THAT SOME JURISDICTIONS EITHER DO NOT ALLOW OR OTHERWISE LIMIT THE PERMISSIBLE SCOPE OF DISCLAIMERS AND LIMITATIONS SUCH AS THOSE APPEARING IN THE TWO PRECEDING SECTIONS. ACCORDINGLY, SOME OF THE LIMITATIONS AND DISCLAIMERS APPEARING THEREIN MAY NOT APPLY TO YOU. IF USER IS A CALIFORNIA RESIDENT, OR IF ANY MATERIALS ARE TO BE REALIZED IN CALIFORNIA, THEN BY AGREEING TO THESE TERMS, USER IS WAIVING CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES THAT “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT ANY TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR”. THE LIMITATIONS OF LIABILITY IN THESE TERMS SHALL BE CONSIDERED INAPPLICABLE ONLY TO THE EXTENT SUCH LIABILITY CANNOT BE SO LIMITED OR EXCLUDED BY APPLICABLE LAW. IN JURISDICTIONS WHERE ANY SUCH LIMITATIONS ARE PROHIBITED, THOSE THAT ARE NOT PROHIBITED SHALL REMAIN IN FULL FORCE AND EFFECT, AND THE MAXIMUM DAMAGES AND TOTAL AGGREGATE LIABILITY OF PHCSLLC SHALL NOT EXCEED THE STATUTORY LIMIT.
- Force Majeure. PHCSLLC shall not be liable or responsible in any way for any failure or delay in performance or delivery, or for any damage to customer, caused by or attributable to, in whole or in part, any factor beyond PHCSLLC’s control, including without limitation strikes, riots, wars, fires, acts of God, acts of compliance with any law or regulation, acts or omissions of third parties for which PHCSLLC is not legally responsible, and/or any other factor that could be characterized as a force majeure event.
- Indemnification. User agrees to indemnify, defend, and hold harmless PHCSLLC and each PHCSLLC Party, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorney’s fees, to the extent that such action is based upon a claim that: (i) if true, would constitute a breach of any of User’s representations, warranties, covenants, duties, obligations or agreements hereunder; (ii) arises out of User’s negligence, willful misconduct, or other breach of these Terms; and/or (iii) arises out of User’s utilization of, payment for and/or receipt of any Materials, except to the extent arising out of PHCSLLC’s gross negligence, willful misconduct, or material breach of these Terms.
- Governing Law. THESE TERMS, AND THE RIGHTS AND OBLIGATIONS HEREUNDER, SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF ARIZONA, WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS.
- 24. Dispute Resolution. To the extent that User and PHCSLLC are unable to resolve any disputes or controversies (each, a “Dispute”) arising out of or relating to these Terms, or the performance, breach, validity, interpretation or enforcement of these Terms, all such Disputes will be submitted to a mediator located in Maricopa County, Arizona prior to any arbitration or other action. The mediator’s fees and expenses shall be shared equally by User and PHCSLLC, who agree to exercise their best efforts in good faith to resolve all disputes in mediation. Mediation begins on the date one party sends written notice to the other requesting mediation and presenting in the notice the matter to be mediated. Mediation shall conclude when both parties sign an agreement that resolves the subject of the mediation. If no agreement is reached within sixty (60) calendar days after the date of the original written notice, the mediation is considered unsuccessful. In the event any Dispute cannot be settled by User and PHCSLLC informally or through mediation, the matter in controversy or dispute shall be resolved by binding confidential private arbitration before a mutually agreeable arbitrator in Maricopa County, Arizona. In the event the parties cannot agree on an arbitrator, the presiding judge of the Superior Court of Maricopa County, Arizona, shall decide who the arbitrator shall be. The decision of the arbitrator will be final and binding on the parties to such proceeding. In any arbitration or other proceeding related to a Dispute, the prevailing party shall be entitled to reimbursement of such party’s reasonable costs and attorney’s fees. Otherwise, the arbitrator shall have the discretion to enter any award permissible under applicable law, and such award shall be enforceable exclusively in a state or federal court of competent jurisdiction in Maricopa County, Arizona.
- Entire Agreement. These Terms, together with the Lab’s terms and conditions incorporated herein and integrated herewith by reference and those other items incorporated herein and integrated herewith by reference, contain the entire understanding and agreement between PHCSLLC and User with respect to the subject matter hereof and supersedes all prior agreements and understandings, express or implied, oral or written, among such parties with respect to the subject matter hereof. There are no promises, terms, conditions, or obligations between User and PHCSLLC other than those contained herein.
- Number and Gender; Captions. Whenever herein the singular number is used, the same shall include the plural where appropriate, and words of any gender shall include each other gender where appropriate. The captions, headings and arrangements used in these Terms are for convenience only and do not in any way affect, limit or amplify the provisions hereof.
- Invalid Provisions. If any provision of these Terms is held to be illegal, invalid or unenforceable under present or future laws effective during the term hereof, such provision shall be fully severable; these Terms shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part (t)hereof; and the remaining provisions of these Terms shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or its severance from these Terms. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part hereof a provision as similar in terms, but in any event no more restrictive than, such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
- No Waiver. Failure on the part of PHCSLLC to complain of any act or failure to act of another party or to declare another party in default, irrespective of how long such failure continues, shall not constitute a waiver by PHCSLLC of its rights hereunder. Any waiver by PHCSLLC of any default shall not affect or impair any right arising from any other or subsequent default. Nothing herein shall limit the remedies and rights of the parties hereto under and pursuant to these Terms.
- Survival. The requirements of Sections 15 through 24 of these Terms shall survive any cancellation or termination of User’s account at and access to the Site.
I HAVE READ THESE TERMS, FULLY UNDERSTAND ALL PROVISIONS HEREIN, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY AGREEING TO THESE TERMS, AND ACCEPT AND AGREE TO BE BOUND BY THESE TERMS FREELY AND VOLUNTARILY. I ACKNOWLEDGE THAT I HAVE RECEIVED VALUABLE CONSIDERATION IN RELATION TO MY ACCEPTANCE OF AND AGREEMENT TO BE BOUND BY THESE TERMS, WHICH I UNDERSTAND TO BE A PREREQUISITE TO MY ABILITY TO UTILIZE, REALIZE AND RECEIVE MATERIALS AT AND THROUGH THE SITE. FINALLY, I UNDERSTAND THAT THESE TERMS SHALL BE OF FULL FORCE AND EFFECT AS TO ANY AND ALL MATERIALS I RECEIVE FROM PHCSLLC, WITHOUT REGARD TO THE DATE OR TIMING OF, PAYMENT FOR AND RECEIPT OF SUCH MATERIALS. I CERTIFY THAT I AM OF SOUND MIND AND FULL CAPACITY TO ENTER INTO AND BE BOUND BY THESE TERMS. IF I AM UNDER 18 YEARS OF AGE, I HAVE CAUSED MY LEGAL GUARDIAN, WHO IS OF SOUND MIND AND FULL CAPACITY TO ENTER INTO THESE TERMS ON MY BEHALF AND TO BIND ME TO THESE TERMS, TO ACCEPT AND AGREE TO THESE TERMS ALONG WITH ME.