Thank you for using our products and services, including the Clarity Website (the “Website”) and Mobile Application (collectively, the “Services”). The Services are provided by Encompass 360, P.C. (“Encompass 360”).
By using our Services, you (which herein shall include the end user’s legal representative or guardian, as applicable) are agreeing to these terms. Please read them carefully.
- About the Services
The Services offered through the Website and the Mobile Application provide end users the ability to upload, access, and store information, including medical records, send and receive messages, and access information and analysis made available through the Website’s and the Mobile Application’s proprietary analysis tools.
- Ownership of the Website and Mobile Application
- Use of the Services
As a condition of your use of the Services, you agree that:
- You have reached the age of majority in the state or province in which you reside;
- You are able to create a binding legal obligation;
- You are not barred from receiving products or services under applicable law;
- You will not use any robot, spider, site search/retrieval application, or other manual or automatic device or process to download, access, retrieve, index, “data mine”, or in any way reproduce or circumvent, avoid, bypass, remove, or deactivate the navigational structure or technical measures or presentation of the Services or its contents;
- You will not interfere, access, tamper with or disrupt the Services or the servers or networks connected to the Services;
- You will not attempt to probe, scan or test the vulnerability of the Services or any of our systems or network or breach any security or authentication measures;
- You will not use any meta tags or other hidden text or metadata utilizing our trademarks, logos, URLs or product names without our express written consent;
- You will not use the Services or content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
- You will not post, distribute, or reproduce in any way any content that infringes third party intellectual property rights or violates third party rights of privacy or rights of publicity;
- You will not post, distribute or reproduce in any way any content that violates applicable law;
- You will not use, display, “frame” or “mirror” any part of the Services, our names, any of our trademarks, logos or other proprietary information, or the layout and design of any page or form contained on a page, without prior written authorization from us;
- You will not collect or store any personal information, including personally identifiable information, from users without their express permission;
- You will not provide any inaccurate, incomplete, false or misleading information, including regarding your identity or medical condition, when using the Services;
- You will not allow any other person to use your account, username or password to access the Services, unless otherwise permitted herein; and
- You will not assist or permit any person to engage in any of the activities described in this Section.
Encompass 360 retains the right, at our sole discretion, to deny Service or use of the Services or an account to anyone at any time and for any reason. While we use reasonable efforts to keep the Services and your account accessible, the Services and/or your account may be unavailable from time to time. You understand and agree that there may be interruptions in service or events, Service access, or access to your account due to circumstances both within our control (e.g., routine maintenance) and outside of our control.
- Your Account
You are responsible for updating and correcting information you have submitted to create or maintain your account. You understand and agree that Encompass 360 shall have no responsibility for any incident arising out of, or related to, your account settings. You must safeguard your password and supervise the use of your account. You are solely responsible for maintaining the security of your account and maintaining settings that reflect your preferences. We will assume that anyone using the Services or transacting through your account is you. You agree that you are solely responsible for any activity that occurs under your account.
- Your Conduct
- Your Privacy
- Copyright and Trademarks
The Website and Mobile Application contain copyrighted material, trademarks, and other proprietary information, including, without limitation, text, software, photos, video, graphics, music, and sound, and the entire contents of the Website and Mobile Application are protected by copyright, trademark, and other intellectual property laws of the United States. Encompass 360 owns a copyright in the selection, coordination, arrangement, and enhancement of such content, as well as in the content original to it. You may not modify, distribute, publish, transmit, publicly display, publicly perform, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part. Except as otherwise expressly stated under copyright law, no downloading, copying, redistribution, retransmission, publication, or commercial exploitation of the content without the express permission of Encompass 360. If downloading, copying, redistribution, retransmission, or publication of copyrighted material is permitted, you will make independent attribution and/or make no changes in or deletion of any author attribution, trademark legend, or copyright notice. You acknowledge that you do not acquire any ownership rights by downloading copyrighted material. Any violation of these restrictions may result in a copyright, trademark, or other intellectual property right infringement that may subject you to civil and/or criminal penalties.
- No Medical Advice
Any advice or analysis that may be posted on the Services is for informational purposes only and is not intended alone to replace or substitute for any medical or other advice. To the maximum extent not prohibited by law, we make no representations or warranties and expressly disclaim any and all liability concerning any treatment, action by, or effect on any person following the general information offered or provided within or through the Services. If you have specific concerns or a situation arises in which you require medical advice, you should consult with an appropriately trained and qualified medical services provider.
ANY REFERENCES TO SPECIFIC PRODUCTS OR SERVICES ON THE WEBSITE OR MOBILE APPLICATION DOES NOT CONSTITUTE OR IMPLY A RECOMMENDATION OR ENDORSEMENT OF SUCH PRODUCTS OR SERVICES BY ENCOMPASS 360 UNLESS SPECIFICALLY STATED OTHERWISE.
- Unsolicited Ideas
We do not accept or consider, directly or through any Encompass 360 employee or agent, unsolicited ideas of any kind, including, without limitation, ideas or suggestions relating to new or improved products, enhancements, names or technologies, advertising and marketing campaigns, plans, or other promotions. Do not send us (or any of our employees) any unsolicited ideas, suggestions, material, images, or other work in any form (“Unsolicited Materials”). If you send us Unsolicited Materials, you understand and agree that the following terms will apply, notwithstanding any cover letter or other terms that accompany them: (1) Encompass 360 has no obligation to review any Unsolicited Materials, nor to keep any Unsolicited Materials confidential; and (2) Encompass 360 will own, and may use and redistribute, Unsolicited Materials for any purpose without restriction and free of any obligation to acknowledge or compensate you.
- Infringement Reporting Procedures and Digital Millennium Copyright Act (DMCA) Procedures
You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights.
Encompass 360 reserves the right to terminate your, or any third-party’s, right to use the Services if such use infringes the copyrights of another. Encompass 360 may, under appropriate circumstances and at its sole discretion, terminate your, or any third-party’s, right to access to the Services, if Encompass 360 determines that you are, or a third-party is, a repeat infringer. If you believe that any material has been posted via the Services by any third-party in a way that constitutes copyright infringement, and you would like to bring it to Encompass 360’s attention, you must provide Encompass 360’s Infringement Agent identified below with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification of the copyrighted work and the location on the Website or Mobile Application of the allegedly infringing work; (c) a written statement that you have a good faith belief that the disputed use is not authorized by the owner, its agent, or the law; (d) your name and contact information, including, without limitation, telephone number and email address; and (e) a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf.
The contact information for Encompass 360’s Infringement Agent for notice of claims of copyright infringement is:
Agent: Encompass 360, PC, Attn: Infringement Agent
Address: 196 Polo Court, Blountville, TN 37617
TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, UNDER NO CIRCUMSTANCES WILL ENCOMPASS 360 OR ANY OF ITS AFFILIATES, SUPPLIERS AND OTHER THIRD PARTIES MENTIONED OR LINKED TO ON THE WEBSITE AND EACH OF THEIR AFFILIATES, LICENSORS, EMPLOYEES, OFFICERS, DIRECTORS OR AGENTS BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM ANYONE'S USE OF OR INABILITY TO USE THE SERVICES, OR RESULTING FROM ANY CONTENT POSTED ON THE SERVICES.
TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, AND WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, AND WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE AND USAGE OF TRADE. YOUR USE OF THE SERVICES IS VOLUNTARY AND SOLELY AT YOUR OWN RISK.
FURTHERMORE, WE AND OUR AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. WE DO NOT WARRANT THAT FILES AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER DESTRUCTIVE PROGRAMMING. ANY MATERIAL OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM ANY SUCH MATERIAL. WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT.
The Services are intended for use only within the United States and its territories. We make no representation that the Services are appropriate, or are available for use outside the U.S. Those who choose to access and use our Services from outside the U.S. do so on their own initiative, at their own risk, and are responsible for compliance with applicable laws.
- Limitation of Liability
ENCOMPASS 360 AND ITS AFFILIATES, SUPPLIERS AND OTHER THIRD PARTIES MENTIONED OR LINKED TO ON THE WEBSITE OR MOBILE APPLICATION AND EACH OF THEIR AFFILIATES, LICENSORS, EMPLOYEES, OFFICERS, DIRECTORS OR AGENTS ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, RELATING TO LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH IN ANY WAY THESE TERMS, THE USE OF OR INABILITY TO USE THE SERVICES, ANY CONTENT, INFORMATION, SERVICES OR PRODUCTS OBTAINED THROUGH THE WEBSITE OR MOBILE APP, ANY APP TO WHICH YOU AUTHORIZE US TO RELEASE DATA (AND INCLUDING THE WEBSITE OR MOBILE APP’S USE OF DATA THAT YOU PROVIDE TO IT), AND/OR ANY THIRD PARTY OR LINKED WEBSITE WHETHER BASED ON CONTRACT, WARRANTY, PRODUCT LIABILITY, TORT OR OTHER LEGAL THEORY AND EVEN IF WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU ARISING FROM THESE TERMS, OR THE USE OF OR INABILITY TO USE THE SERVICES WILL AT ALL TIMES BE LIMITED TO THE GREATER OF $100.00 OR THE AMOUNTS PAID BY YOU TO US FOR ACCESS TO AND USE OF SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
- Electronic Communications
You agree that Encompass 360 may send the following to you by email or by posting them on our Website and Mobile Application:
- legal disclosures;
- these Terms;
- Any other notices, policies, communications or disclosures and information related to the Services.
You further agree that Encompass 360 may contact you via email, phone, text, or mail regarding the Services or any related services that you inquire about through the Website or Mobile Application. You consent to receive such communications electronically. You agree to update your contact information to ensure accuracy. Your consent to conduct actions electronically covers all interactions between you and Encompass 360.
If you later decide that you do not want to receive certain future communications electronically, please send an email to email@example.com, or a letter to Encompass 360, 196 Polo Court, Blountville, TN 37617, Attn: Administration, Re: Email communication opt out. You may also opt out of certain electronic communications through your account or by following the unsubscribe instructions in any communication you receive from Encompass 360. Your withdrawal of consent will be effective within a reasonable time after we receive your withdrawal notice described above.
Encompass 360 will need to send you certain communications electronically regarding the Services. You will not be able to opt out of those communications – e.g., communications regarding updates to the Terms or information about billing. Your withdrawal of consent will not affect the legal validity or enforceability of the Terms provided to and accepted by you. If you withdraw your consent to receive communications electronically, certain Services may become unavailable to you.
- Websites of Others
The Services may contain links to websites maintained by other parties. These links are provided solely as a convenience to you and not because we endorse or have an opinion about the contents on such websites. We expressly disclaim any representations regarding the content or accuracy of materials on such websites or the privacy practices of those websites. If you decide to access websites maintained by other parties, you do so at your own risk. We are not responsible or liable, directly or indirectly, for any damage, loss, or liability caused or alleged to be caused by or regarding any use of or reliance on any content, Products, or services available on or through any such linked site or resource.
You are solely responsible for your interactions with providers and other users of the Services.
- Force Majeure
- Entire Agreement
- Choice of Law
- Dispute Resolution/Arbitration Agreement
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Agreement to Arbitrate
You agree that any dispute, claim or controversy arising out of or relating to these Terms or the Services (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in the General Sessions Court of Sullivan County, Tennessee related to a Dispute for which the amount in controversy does not exceed $25,000.00 and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). You will also have the right to litigate any other Dispute if you provide us with written notice to opt out of arbitration (“Arbitration Opt-out Notice”) by email at firstname.lastname@example.org or by regular mail to Encompass 360, P.C., 196 Polo Court, Blountville, TN 37617, Attn: Legal, Re: Arbitration opt out within thirty (30) days following the date you first accept these Terms, or if you have not registered for an account, then within thirty (30) days following the date you first use our Services. If you don’t provide us with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide us with an Arbitration Opt-out Notice, will be the state and federal courts located in Sullivan County, Tennessee and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide us with an Arbitration Opt-out Notice, you acknowledge and agree that you are waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless you otherwise agree in writing, the arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of any class or representative proceeding. If a decision is issued stating that applicable law precludes enforcement of any limitations set forth in this Agreement to Arbitrate on the right to arbitrate claims on a class or representative basis, or as part of a consolidated proceeding, as to a given claim for relief, then that claim (and only that claim) must be severed from the arbitration and brought in the state or federal courts located in Sullivan County, Tennessee. All other claims will be arbitrated. This “Dispute Resolution” section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. AAA provides a general form for a Demand for Arbitration and a separate form for Demand for Arbitration for California residents. The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you agree with us otherwise, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that are submitted to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. You and Encompass 360 will each bear their own attorneys’ fees and expenses related to the arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Notwithstanding anything to the contrary in these Terms, if we change this “Dispute Resolution” section after the date you accepted these Terms or access our Services, you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the “Effective Date” listed at the beginning of these Terms or in the date of our email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and us in accordance with the provisions of this “Dispute Resolution” section as of the date you accepted these Terms, or accessed our Services.
This Arbitration and Class Action Waiver section shall survive any termination of your account or the Services.
- Additional Disclosures