Solve ME/CFS Initiative, Inc. YOU + M.E. Platform Terms of Service
Last Updated: 12/10/2019
THE YOU + M.E. PLATFORM IS NOT FOR USE IN MEDICAL EMERGENCIES OR OTHER URGENT SITUATIONS. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL 911 IMMEDIATELY.
These Terms of Service (these “Terms”) describe the terms and conditions on which Solve ME/CFS Initiative, Inc. (“Solve ME/CFS”, “we,” “us,” or “our”) provides you with access to the YOU + M.E. Platform (the/our “Platform”). Please read these Terms carefully before using our Platform. NOTE THAT SECTION 15 OF THESE TERMS CONTAINS A MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS AND LIMITS THE FORUM AND/OR REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
BY CLICKING “I ACCEPT” OR BY ACCESSING OR USING THE PLATFORM, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL OF THE TERMS INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS, INCLUDING THE MANDATORY ARBITRATION AND CLASS ACTION WAIVER IN SECTION 15, YOU MAY NOT ACCESS OR USE THE PLATFORM.
1. Nature of Platform.
The Platform provides you with the opportunity to track your individual symptoms associated with Chronic Fatigue Syndrome/Myalgic Encephalomyelitis (the “Disease”) and subsequently share the data with Solve ME/CFS, researchers, and other Solve ME/CFS-selected authorized third parties dedicated to developing a greater understanding of the Disease.
3. Eligibility to Use the Platform.
To use the Platform, you must be at least 13 years old. By agreeing to these Terms, you represent and warrant that you: (a) are 13 years of age or older; (b) are a legal resident of the United States; and (c) have full power and legal authority to enter into these Terms and in doing so will not violate any other agreement to which you are a party, and will comply with these Terms at all times.
If you are accessing or using our Platform on behalf of another person, you represent that (a) you are authorized to accept these Terms on that person’s behalf; (b) the person is 13 years of age or older; (c) the person is a legal resident of the United States; and (d) the person agrees to be responsible to us if you or the other person violates these Terms.
4. Accounts, Account Security.
To access and use certain features of the Platform, you may need to create an account (“Account”). You are responsible for maintaining the confidentiality and security of your Account password and for all acts or omissions that occur under your Account. You agree to immediately notify Solve ME/CFS if you discover or otherwise suspect any security breaches related to the Platform or your Account. You agree that the Account information that you provide to us at all times will be accurate, complete and current. Your failure to provide accurate Account information may result in inaccurate matching of information from your healthcare provider or laboratory. You may not use anyone else’s account at any time and you may not transfer or share your Account with anyone.
As part of activating your Account, you are required to provide us with a valid email address and to update this address if you change your email account.
5. Communication Preferences.
By creating an Account, you consent to receive electronic communications from Solve ME/CFS (e.g., via email, text message). These communications may include operational notices about the Platform and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
6. Secondary Tool; Not a Healthcare Provider; No Medical Advice.
Notice to Users: Solve ME/CFS is not a healthcare provider, and the Platform does not include the provision of medical care, health care services, or other professional services by Solve ME/CFS. Always directly contact your healthcare provider with any questions regarding your personal health or medical conditions. If you have or suspect that you have a medical problem or condition, please contact a qualified healthcare professional or 9-1-1 immediately. If any medical advice is provided to you by a healthcare provider through the Platform, such medical advice is not provided by Solve ME/CFS but is provided by your healthcare provider.
The Platform is not intended to provide any healthcare services, as the Platform is an informational and communication resource designed to serve end-users viewing this service as a supplement to, and not a substitute for, the expertise, skill, knowledge and judgment of healthcare practitioners. Users should not and must not rely on the Platform as their primary tool for communicating, gathering, storing, updating sharing or assessing health information including changes to a user’s health status. The Platform might not function as intended. Individuals using the Platform assume full responsibility for the use of the Platform and agree that we are not responsible or liable for any claim, loss, or damage arising from the use of the Platform.
7. Reservation of Rights.
We may modify, suspend, or discontinue any aspect of the Platform at any time without prior notice. You agree that we shall not be liable to you or any third party for any modification, suspension, or discontinuance of any feature or component of the Platform. In addition, we reserve the right, at any time and for any reason, with or without notice, and without liability to you or any other user, to: (a) restrict, limit, suspend or terminate your and/or any other user’s access to the Platform; (b) monitor any user’s use of the Platform to verify compliance with these Terms and/or any applicable law; (c) investigate any suspected or alleged misuse of the Platform and cooperate with law enforcement and/or third-parties in such investigation; and (d) disclose information about any user’s use of the Platform in connection with law enforcement investigation of alleged illegal activity, or in response to a lawful court order or subpoena.
8. Proprietary Rights.
We grant you a limited right to use the Platform for your personal use. All original content, materials, features and functionality (including, without limitation, text, information, images, photos, graphics, artworks, logos, videos, audios, directories, listings, code, databases, and search engines) (the “Content”) are owned by Solve ME/CFS and/or its licensors and may be protected by U.S. and foreign copyright, trademark and other intellectual property laws. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-transferable right and license to access and use the Platform and Content solely for your personal, non-commercial use; provided, however, that such license does not include any right to (a) sell, resell our Platform and the Content; (b) copy, reproduce, distribute, publicly perform or publicly display Content, except as expressly permitted by us or our licensors; (c) modify the Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Platform and the Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Platform and the Content other than for their intended purposes. Except for this limited license granted to you, we reserve all other rights. This license may be revoked and terminated by us at any time and for any reason. Any unauthorized use, reproduction or distribution of the Platform or Content is strictly prohibited and may result in termination of the license granted herein, as well as civil and/or criminal penalties.
All trademarks, trade names and logos appearing on or through the Platform are owned by us or licensed by us. The “Solve ME/CFS” name and logo and all other Solve ME/CFS names, marks, logos and other identifiers are trademarks and service marks of Solve ME/CFS. Names, marks, logos and other identifiers of third parties, including third party health care providers, are trademarks and service marks of their respective owners. You may not use or display any Solve ME/CFS trademarks, trade names, or logos without our prior written permission. We reserve all rights.
If you choose to provide us with any comments, suggestions, ideas or other feedback (“Feedback”), you agree that we have an unrestricted right to use it, and you are not entitled to receive any compensation.
9. Appropriate Use of the Platform.
You agree to use the Platform in accordance with all applicable local, state, national and foreign laws, treaties and regulations. You will not violate any contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Platform. In addition, without limitation, you will not, directly or indirectly, do any of the following while using or accessing the Platform:
- Copy, reproduce, sell, rent, lease, distribute, transfer, modify or make derivative works from the Platform or any Content.
- Remove, alter or tamper with any copyright, trademark or other proprietary rights or legal notices contained in any Content obtained from the Platform.
- Decompile, disassemble, reverse engineer, or otherwise attempt to discover or derive any proprietary software code or information associated with the Platform.
- Use the Platform in any manner that could interfere in any way with the operation of the Platform or any server, network or system associated with the Platform, including, without limitation, by: hacking, mail-bombing, flooding, overloading, or making “denial of service” attacks; probing, scanning or testing the vulnerability of the Platform or any server, network or system associated with the Platform; breaching or circumventing firewall, encryption, security or authentication routines; accessing data not intended for you.
- Use any automated program, tool or process (including, without limitation, web crawlers, robots, bots, spiders, and automated scripts) to access the Platform or any server, network or system associated with the Platform, or to extract, collect, harvest or gather content or information from the Platform.
- Frame or otherwise create a browser or border environment around any page or content of the Platform, or deep-link to any internal page or area of the Platform.
- Make any other use of the Platform that violates these Terms or any applicable law.
If you access and use the Platform on your smartphone, tablet or other mobile device, you must have wireless service through WiFi or a participating wireless service provider and a compatible mobile device. You are responsible for all charges (including data and messaging charges) related to your use of the Platform through your device. We do not guarantee that the Platform is compatible with any particular operating system, browser, mobile device or other software or equipment.
10. Links to Third Party Sites.
To the fullest extent permitted by applicable law, you release Solve ME/CFS and our owners, subsidiaries, affiliated companies, employees, shareholders, and directors (collectively, the “Solve ME/CFSParties”) from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE ANY RIGHTS YOU MAY HAVE UNDER CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” YOU ALSO WAIVE ANY RIGHTS YOU MAY HAVE UNDER ANY OTHER STATUTE OR COMMON LAW PRINCIPLES THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.
You agree to indemnify, defend and hold harmless the Solve ME/CFS Parties from and against any and all damages, liabilities, fines, penalties, losses, expenses, fees, and costs (including without limitation reasonable attorneys’ fees and costs) related to all claims, causes of action, charges, and investigations, arising out of or relating to: (a) your access to or misuse of the Platform, or the Content; (b) any Feedback you submit or transmit; (c) your violation of any of these Terms; (d) your conduct in connection with our Platform and/or (e) your violation of any third party right, including, without limitation, any intellectual property right, publicity, confidentiality, property or privacy right.
Solve ME/CFS reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
13. Disclaimer of Warranties.
YOU EXPRESSLY AGREE THAT USE OF THE PLATFORM AND CONTENT IS AT YOUR SOLE RISK. THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Solve ME/CFS expressly disclaims all warranties of any kind, whether express or implied, any warranties of merchantability, fitness for a particular use or purpose, non-infringement, title, operability, condition, quiet enjoyment, value, and accuracy of data. Solve ME/CFS makes no warranty that the Platform or Content will meet your requirements, or that the Platform will be uninterrupted, timely, secure, or error free; nor does Solve ME/CFS make any warranty as to the results that may be obtained from the use of the Platform or Content, or that defects in the Platform or Content will be corrected, or that any information obtained through or in connection with the Platform or Content will be accurate or complete. You understand and agree that any material downloaded or otherwise obtained through the use of the Platform is done at your own discretion and risk and that you will be solely responsible for any damage or loss of data that results from the download of such material and/or information. No advice or information, whether oral or written, obtained by you from Solve ME/CFS or through the Platform or Content will create any warranty not expressly made herein.
Some states may not allow the exclusion of implied warranties, so the above exclusion may not apply to you. But, to the extent permitted by applicable law, we exclude all warranties.
14. Limitation of Liability.
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL SOLVE OR ANY OF THE SOLVE PARTIES BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO YOUR USE OF THE PLATFORM OR ANY CONTENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. TO THE EXTEND PERMITTED UNDER APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE ARISING OUT OF OR IN ANY WAY RELATED TO ACCESS OR USE OF THE PLATFORM OR CONTENT, OR ANY DISSATISFACTION WITH THE PLATFORM IS TO STOP USING THE PLATFORM.
You further agree that the limitations of liability set forth above will survive any termination or expiration of these Terms and will apply even if any limited remedy specified herein is found to have failed its essential purpose. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages, and as a result some of the above disclaimers may not apply to you. To the extent we may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of our liability shall be the minimum permitted under applicable law.
15. Dispute Resolution; Arbitration.
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Solve ME/CFS and limits the manner in which you can seek relief from us, including a class action waiver. This Section 15 applies to all Disputes (unless excluded under Section 15.1) between you and the Solve ME/CFS Parties.
15.1. Binding Arbitration.
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Solve ME/CFS agree (a) to waive your and Solve ME/CFS’s respective rights to have any and all Disputes arising from or related to these Terms, or the Platform or Content, resolved in a court, and (b) to waive your and Solve ME/CFS’s respective rights to a jury trial. Instead, you and Solve ME/CFS agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
15.2. No Class Arbitrations, Class Actions or Representative Actions.
15.3. Federal Arbitration Act.
You and Solve ME/CFS agree that any Dispute arising out of or related to these Terms, the Platform or Content is personal to you and Solve ME/CFS, and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Solve ME/CFS agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Solve ME/CFS agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
You and Solve ME/CFS agree that these Terms affect interstate commerce and that the enforceability of this Section 15 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
15.4. Notice; Informal Dispute Resolution.
You and Solve ME/CFS agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Solve ME/CFS shall be sent by certified mail or courier to 5455 Wilshire Blvd. #1903 Los Angeles, CA 90036. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with Section 5 and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Solve ME/CFS cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Solve ME/CFS may, as appropriate and in accordance with this Section 15, commence an arbitration proceeding or, to the extent specifically provided for in Section 15.1, file a claim in court.
Except for Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Solve ME/CFS agree that any Dispute must be commenced or filed by you or Solve ME/CFS within one (1) year of the date the Dispute arose, otherwise the underlying claim is permanently barred (which means that you and Solve ME/CFS will no longer have the right to assert such claim regarding the Dispute). You and Solve ME/CFS agree that (a) any arbitration will occur (i) in Los Angeles County, California, or (ii) telephonically, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the American Arbitration Association’s (“AAA”) Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth herein (“AAA Rules”), which are hereby incorporated by reference, and (c) that the seat of the arbitration shall be Los Angeles County, California and that state or federal courts of the State of California and the United States, respectively, sitting in Los Angeles County, California, have exclusive jurisdiction over any litigation in aid of arbitration and the enforcement of any arbitration awards. The parties shall attempt to agree on the single arbitrator to be appointed to resolve the dispute. If the parties are unable to reach agreement within 30 days after commencement of the arbitration with the AAA, the arbitrator selection process identified in the AAA Consumer Arbitration Rules shall apply. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court. Each party shall be responsible for its costs incurred in such arbitration, but the arbitrator shall not have the authority to re-allocate those costs in an award or otherwise. If you cannot afford to pay for the arbitration, you agree to provide us the option of paying the arbitrator before seeking to initiate any other form of dispute resolution, including litigation. As part of the arbitration, both you and Solve ME/CFS will have the opportunity to reasonable discovery of non-privileged information that is relevant and material to the Dispute, including the ability to request from each other, and third parties, documents, information and testimony that is relevant and material to the Dispute.
15.6. Authority of Arbitrator.
As limited by the FAA, these Terms and the applicable AAA Rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
15.7. AAA Rules.
The AAA Rules and additional information about the AAA are available on the AAA website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the AAA Rules, or (b) waive your opportunity to read the AAA Rules and any claim that the AAA Rules are unfair or should not apply for any reason.
If any term, clause or provision of this Section 15 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 15 will remain valid and enforceable. Further, the waivers set forth in Section 15.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
16. Applicable Law; Venue.
These Terms, and your access to and use of the Platform shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to conflict of law rules or principles (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved on an individual basis in the state or federal courts of the State of California and the United States, respectively, sitting in Los Angeles County, California.
17. International Users.
18. Changes to these Terms.
We reserve the right to change our Terms at any time. Any changes that we make will become a part of our agreement with you, and are effective and binding when they are included in our Platform. Your continued use of our Platform will constitute your agreement to the changes we have made. If we make material changes, we will post the amended Terms to our Website and include them in the Platform, and update the “Last Updated” date above. We may also notify you by sending an email notification to the address associated with your Account or providing notice through our Website. The last date these Terms were revised is set forth at the top of these Terms.
If any provision of these Terms is found by a court of competent jurisdiction or arbitrator to be invalid, the parties nevertheless agree that the court should endeavor to give the effect to the parties’ intentions as reflected in the provision, and that the other provisions of these Terms remain in full force and effect.
The following sections will survive the expiration or termination of these Terms: all defined terms and Sections 2, 4, and 6 through 19.
These Terms, the informed consent you signed, and any other terms and policies incorporated herein, constitute the entire agreement between you and Solve ME/CFS relating to your access to and use of the Platform. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Solve ME/CFS. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Solve ME/CFS’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.