General Terms and Conditions
Effective Date: June 10, 2020
PLEASE NOTE THAT THESE GENERAL TERMS CONTAIN A CLASS ACTION WAIVER AND WAIVER OF RIGHT TO JURY TRIAL CLAUSE, WHICH ALTERS YOUR DISPUTE RESOLUTION RIGHTS. PLEASE READ THESE SECTIONS CAREFULLY BEFORE CONTINUING.
1. Revisions, Disclosures and Notices
We may amend these General Terms at any time by posting the revised version on our website or providing a copy of it to you in any other manner we deem reasonable (each a “Revised Version”). We are not obligated to provide you with any notice or a copy of the Revised Version. The Revised Version will become effective immediately once posted, however, it will not apply retroactively. You hereby agree to be bound by these General Terms and any Revised Version when you use our website or our Services. Your continued use of the Services after the posting of a Revised Version shall constitute your acceptance of such Revised Version. We recommend that you review these General Terms posted on our website regularly to ensure you become aware of any changes.
To the extent that we are required to provide you with any notice under any applicable law or otherwise, to the extent such waiver is permitted by law in such jurisdiction, you hereby waive the right to such notice without limitation. We may in our sole discretion provide disclosures and notices (including ones required by law) to you electronically, by posting it on our website, or by emailing it to any email address you have provided us, if any. Electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. Such disclosures and notices are considered received by you within twenty-four (24) hours of the time such disclosure or notice is posted to our website, or within twenty-four (24) hours of the time emailed to you, whichever occurs first. If you do not agree to any of these terms and conditions, you must not use our website or our Services in any way.
2. Our Services
Elder Guide is senior living marketing and information service. We provide resources and data relevant to various senior living decisions, including, but not limited to, choosing nursing homes, assisted living communities, independent living communities, home health care services, as well as the methods of paying for all of the above, including, but not limited to Medicaid, Medicare and other forms of health insurance, as well as long-term care insurance and other financial instruments. We primarily seek to provide you with government data we have retrieved and we may attempt to interpret such data in a qualitative or quantitative manner. We may refer you to third parties which may make additional recommendations regarding choosing senior living facilities or other planning related advice. Each third party is fully responsible for all information provided on their websites, or by phone or email or through other means. The information provided by these third parties does not represent our views and we do not control their content or advice. By using these third party websites or speaking with third party representatives by phone, email or in person, you are assuming all associated risks.
We do not exercise any independent judgment of senior living facilities or third parties that work with our site. We do not make any recommendations, nor do we actually place prospective residents in senior living communities. We are not a representative or agent of you or any third party, including, but not limited to, any of the senior living facilities referenced on our website. Admitting a prospective resident to a senior living facility is an extremely complex process requiring medical assessments and evaluation of the specific medical services provided by various facilities. Our information is provided for informational purposes only and is not intended to replace the advice of qualified professionals, including attorneys, physicians, accountants, case workers and financial consultants. Elder Guide explicitly disclaims all liability regarding any advice or services you receive from such professionals as well as the services and/or care you receive from any senior living facility, whether you identified such professionals and/or facilities on our website or otherwise.
3. Use of Services and Prohibited Uses
Subject to these General Terms, you may use our website or download pages on our website for caching in a web browser, as well as print pages on our website. You may also stream any audio and video files from our website. These authorized uses must be for your own personal or business purposes.
You must not, and you must not permit any third party to:
a) reproduce or republish, alter, modify or create derivative works, resell, license or redistribute any material, information or Services from our website or the Services, or use and benefit from our website or Services via a rental, lease, timesharing, service bureau or other arrangement;
b) transfer any rights granted to you under these General Terms;
c) access, monitor, copy or extract our website or any portion of our website, or any material, data or information from our website using any manual or automated process or robot, spider, scraper, software or other automated means;
d) use any data or material or information obtained from our website or the Services for any commercial purpose;
e) impersonate any person or entity or otherwise misrepresent your affiliation with any person or entity;
f) conduct any form of systematic or automated data collection activities on our website;
g) except to the extent that any of these restriction(s) is expressly prohibited by law, probe or scan our website for any vulnerability, hack or otherwise tamper with our website or our Services, or circumvent any of the technical limitations of the Services or our website, use any tool to enable features or functionalities that are otherwise disabled in the Services or our website, or decompile, disassemble or otherwise reverse engineer the Services or our website;
h) use our website to copy, store, host, transmit or publish any form of spyware, computer virus, Trojan horse, worm, keystroke logger or other malicious computer software;
i) interfere with the functionality or performance of the Services or our website, prevent access to or use of the Services or our website by our other customers, mirror or frame our website, place pop-up windows over our websites pages or otherwise affect the display of our website, or impose an unreasonable or disproportionately large load (including storage capacity, bandwidth and processing capacity) on our infrastructure;
j) use our website or the Services in a way that distracts or prevents you from obeying traffic or safety laws;
k) use our website or the Services for any illegal activity or in any way that exposes you, other users, our partners, or us to harm; or
l) otherwise use the Services except as expressly allowed under these General Terms.
If we reasonably suspect that you have used our website or our Services for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you and any of your activities or transactions with law enforcement.
We do not warrant that our Services are compatible with your mobile device or carrier or any other mobile device or carrier. Your use of the Services may be subject to the terms of your agreements with third parties, such as your mobile device manufacturer and/or your carrier. You may not use a modified device to use our website or the Services if the modification is contrary to the manufacturer’s software or hardware guidelines.
5. Your Information
You agree not to provide Personal Information that: (a) is false, misleading, unlawful, defamatory, or libelous; (b) breaches or infringes any duty or violates any law or the rights of any person or entity, including rights of privacy or intellectual property; (c) contains corrupted data or any other harmful, disruptive, or destructive files; or (d) in our sole judgment, may expose Elder Guide, its affiliates or its customers to harm or liability of any nature.
6. Elder Guide’s Ownership of Proprietary Rights; Your User-License
Subject to the express provisions of these General Terms, we, together with any of our licensors, own all the copyrights and other Intellectual Property Rights (as defined below) in everything on our website, our mobile application or included in the Services and all copies thereof. Nothing contained herein grants you any rights to our trademarks or service marks whatsoever. For the purposes of these General Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights that may exist now or come into existence in the future, and all of their applications, registrations, renewals and extensions, under the laws of any state, country, territory or other jurisdiction.
You acknowledge and agree that our website, mobile application and any necessary software used in connection with the Website (the “Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. We grant you a personal, non-transferable, non-exclusive, non-sublicensable right and license to use the object code of our Software to access our website through a web browser on a single computer and/or mobile device; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software or our website. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the website or mobile application. You agree not to access the website or mobile application by any means other than through the interface that is provided by us for use in accessing the website or mobile application.
You may submit comments, reviews, ideas or other forms of feedback about the Services (collectively “Ideas”). In doing so, you agree that your submission or disclosure is gratuitous, unsolicited, and without restriction, that we are not subject to any confidentiality, fiduciary or other obligation associated therewith, and that we are free to use the Idea or to disclose the Idea on a non-confidential basis or otherwise in any way we see fit in our sole discretion without paying any compensation to you.
We may take certain steps to protect your personal or business information from accidental loss and from unauthorized access or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to overcome those measures or use your Personal Information improperly. Any Information you provide is at your own risk. We make no representations or warranties regarding the existence of or quality of our security measures. It is your own responsibility to safeguard your mobile devices and computer(s).
We may terminate these General Terms, or suspend or terminate your access to our website or any Service, at any time for any reason. We may add or remove, or impose conditions on any of our Services or any feature or aspect of our Service at any time. We are not required to notify you of any Service changes. However, we may elect to notify you of any significant changes by email or text. If we terminate or suspend your right to use our website or Services for any reason: (a) the license(s) and any other rights granted under these General Terms will terminate effective immediately, (b) we may (but have no obligation to) delete your Personal Information stored on our servers, and (c) we will not be liable to you or any third party for damages of any kind for any termination or suspension of our Services, or for deletion of your Personal Information.
You will indemnify, defend, and hold us (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in these General Terms; (b) your wrongful or improper use of the Services, our website or mobile applications; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (d) your violation of any law, rule or regulation of the United States or any other country or state; (e) any third-party claims made against you regarding your use of our Services, website or mobile applications; and (f) any infringement by you of any intellectual property right.
10. NO WARRANTIES
THE USE OF ELDER GUIDE IN SECTIONS 10 AND 11 MEANS ELDER GUIDE, LLC, ITS WEBSITE AND OTHER APPLICATIONS, ITS OWNERS, PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, PROCESSORS, SUPPLIERS, LICENSORS AND ALL OF THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES).
THE SERVICES AND ALL MATERIALS (INCLUDING ANY THIRD PARTY CONTENT), INFORMATION, LINKS, DATA, RATINGS, RANKINGS, GRADES, SCORES, EVALUATIONS, RECOMMENDATIONS AND PRODUCTS ARE PROVIDED “AS IS” ON AN “AS AVAILABLE” BASIS WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER IT IS EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ELDER GUIDE SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT AS TO THE SERVICES, OUR WEBSITE OR ANY OF THE OTHER ITEMS LISTED ABOVE.
ELDER GUIDE DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OR MATERIAL ON OUR WEBSITE OR MOBILE APPLICATIONS, INCLUDING BUT NOT LIMITED TO, OUR DATA, GRADES, RATINGS, SCORES OR RANKINGS ARE COMPLETE, ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, ACCURATE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS, INACCURACIES OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MORE SPECIFICALLY, ELDER GUIDE DOES NOT WARRANT OR GUARANTEE THAT IT WILL SUCCESSFULLY IDENTIFY THE BEST OR EVEN A SUITABLE OR SAFE SENIOR LIVING FACILITY BASED ON ANY CRITERIA, INCLUDING BUT NOT LIMITED TO, QUALITY, PRICE OR VALUE.
Elder Guide also does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party, including, but not limited to, placement services or senior living facilities we recommend, advertise, or link to on our website or mobile application. Elder Guide does not have control of, or liability for, goods or services that are paid for using the Services.
11. LIMITATIONS OF LIABILITY AND DAMAGES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ELDER GUIDE BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, BUSINESS INTERRUPTION OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM OR ARISE OUT OF OR IN ANY WAY RELATE TO THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF OUR SERVICES, OUR WEBSITE OR OUR MOBILE APPLICATIONS OR ANY OF OUR OMMISSIONS ASSOCIATED THEREWITH. THESE LIMITATIONS OR PROHIBITIONS ON DAMAGES SHALL APPLY REGARDLESS OF LEGAL THEORY, INCLUDING, WITHOUT LIMITATION, TORT, BREACH OF CONTRACT, STRICT LIABILITY, BREACH OF WARRANTY BY US OR ANY ASSOCIATED THIRD PARTY AND EVEN IF WE HAVE BEEN ADVISED OF SUCH DAMAGES. IN ADDITION, IN ALL CASES, ELDER GUIDE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE WHATSOEVER THAT IS NOT REASONABLY FORESEEABLE.
UNDER NO CIRCUMSTANCES WILL ELDER GUIDE BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR PERSONAL INFORMATION, OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF ELDER GUIDE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES PAID BY YOU TO US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY, OR (B) FIFTY DOLLARS ($50.00). NOTWITHSTANDING THE PRECEDING SENTENCE, TO THE EXTENT YOU HAVE USED OUR SERVICES, WEBSITE OR MOBILE APPLICATINOS FREE OF CHARGE, OUR TOTAL LIABILITY TO YOU SHALL BE ZERO DOLLARS ($0.00) UNDER ALL CIRCUMSTANCES.
THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
12. Third Party Products
All third party software, hardware and other products included or sold with the Services are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer directly. ELDER GUIDE MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
“Disputes” are defined as any claim, controversy, or dispute between you and Elder Guide, its owner, parent company, affiliate, subsidiary, directors, agents, or employees processors, suppliers or licensors (or their respective affiliates, agents, directors or employees), including any claims relating in any way to these General Terms, our website, our mobile application or the Services, or any other aspect of our relationship.
14. Consent to Jurisdiction; Service of Process; Waiver of Jury Trial; Class Waiver
Any claim arising out of or relating to these General Terms or our relationship and, unless specifically provided otherwise therein, any other agreement between us and you, contemplated hereby and thereby shall be instituted exclusively in any federal or state court located within Sarasota County in the State of Florida, and you hereby agree not to assert, by way of motion, as a defense or otherwise, in any such claim, that it is not subject personally to the jurisdiction of such court, that the claim is brought in an inconvenient forum, that the venue of the claim is improper or that these General Terms or the subject matter hereof or thereof may not be enforced in or by such court. Each party further irrevocably submits to the jurisdiction of such courts in any such claim. Any and all service of process and any other notice in any such claim shall be effective against you or us if given personally or by registered or certified mail, return receipt requested, or by any other means of mail that requires a signed receipt, postage prepaid, mailed to such party as herein provided. Nothing herein contained shall be deemed to affect your or our right to serve process in any manner permitted by law or to commence legal proceedings or otherwise proceed against any other party in any other jurisdiction.
YOU ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY THAT MAY ARISE UNDER THESE GENERAL TERMS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY. YOU CERTIFY AND ACKNOWLEDGE THAT (I) WE HAVE NOT REPRESENTED, EXPRESSLY OR OTHERWISE, THAT WE WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE ABOVE WAIVER, (II) YOU UNDERSTAND AND HAVE CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (III) YOU MAKE SUCH WAIVER VOLUNTARILY AND (IV) YOU HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS, AGREEMENTS AND CERTIFICATIONS IN THIS SECTION.
YOU ACKNOWLEDGE AND AGREE THAT ANY CLAIM OR DISPUTE ARISING OUT OF OR RELATED TO OUR SERVICES, WEBSITE OR MOBILE APPLICATION IS PERSONAL TO YOU AND THAT ANY DISPUTE BE RESOLVED SOLELY THROUGH INDIVIDUAL ACTION AND WILL NOT BE BROUGHT AS A CLASS ACTION LAWSUIT OR ARBITRATION OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING.
15. Governing Law
These General Terms and any Dispute will be governed by Florida law and/or applicable federal law, without regard to its choice of law or conflicts of law principles.
16. Limitation on Time to Initiate a Dispute
Notwithstanding any applicable statute of limitations in the applicable jurisdiction, any action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.
These General Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted transfer or assignment will be null and void.
18. Third Party Services and Links to Other Websites
You may be offered services, products and promotions provided by third parties, or links to third party websites, which are not operated or owned by Elder Guide, including, but not limited to, third party developers, vendors or placement agents (“Third Party Services”). You are using any Third Party Services at your own risk. We make no warranties or guarantees about any Third Party Services and any recommendations we make regarding Third Party Services shall be deemed gratuitous and not for a fee. We are not responsible or liable for the performance of any Third Party Services. The inclusion of any website link on our website or mobile application or in any communication does not imply an approval, endorsement, or recommendation by Elder Guide. When you use a link to go from our website to a third party website, our privacy notice is no longer in effect. Your browsing and interaction on a third party website is subject to that website’s own terms and policies.
19. Third-Party Beneficiaries
No provision in these General Terms is intended or shall create any rights with respect to the subject matter of these General Terms in any third party.
20. Digital Millennium Copyright Act of 1998 Infringement Notices
If you believe in good faith that your copyrighted work has been copied in a manner which constitutes copyright infringement by us, please notify our copyright agent as set forth in the Digital Millennium Copyright Act of 1998. For your complaint to be valid under the DMCA, you must provide the following information:
a) An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
b) Clear identification of the copyrighted work that you claim has been infringed;
c) Identification of the material that is claimed to be infringing and where it is located on our website;
d) Information reasonably sufficient to permit Elder Guide to contact you, including your address, telephone number and email address;
e) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or law; and
f) A statement made under penalty of perjury, that the above information is accurate and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Schmeiser, Olsen & Watts, LLP
22 Century Hill Drive, Suite 302
Latham, New York 12110
Attn: Victor Baranowski, Esq.
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS AND ATTORNEY’S FEES.
21. Other Provisions
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