Terms of Service
Last updated November 3, 2023
DexCare, Inc. (“DexCare,” “we,” “us,” “our”) provides its services (described below) to you (“you”), whether you are a Provider (as defined below) or a Patient (as defined below), through its website located at www.dexcare.com (the “Site”) and through its related services, content, tools, widgets, software, API(s), and/or other product(s), service(s), data, or information supplied to you by DexCare (collectively, including any new features and applications, and the Site and the App, the “Service(s)”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”).
USE OF OUR SERVICES IS NOT APPROPRIATE FOR EMERGENCIES. IF YOU THINK YOU HAVE A MEDICAL OR MENTAL HEALTH EMERGENCY, OR IF AT ANY TIME YOU ARE CONCERNED ABOUT YOUR CARE OR TREATMENT, CALL 911 OR GO TO THE NEAREST OPEN CLINIC OR EMERGENCY ROOM.
The Terms of Service is the user agreement (the “Agreement”) for DexCare. This Agreement describes the terms and conditions applicable to your use of our services available under the domain and sub-domains of the Site. If you do not agree to be bound by the terms and conditions of this Agreement, do not access the Site or use the Services. As discussed below, we reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at anytime. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
In addition, when using certain services, you may be subject to any additional terms and conditions applicable to you as a DexCare user, including, without limitation, our Privacy Policy located on the Site. You must read, agree with and accept all of the terms and conditions contained in this Agreement and the Privacy Policy, which include those terms and conditions expressly set out below and those incorporated by reference, before you may use the Site.
PLEASE READ THE FOLLOWING CAREFULLY AS IT CONTAINS AN AGREEMENT TO ARBITRATE AS SET FORTH IN SECTION 11 “DISPUTE RESOLUTION BY BINDING ARBITRATION” BELOW AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU MAY HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST DEXCARE ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW. BY USING THIS SITE, YOU SIGNIFY YOUR ACCEPTANCE OF THESE TERMS OF SERVICE. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS CONTAINED IN THE TERMS OF SERVICE, PLEASE DO NOT USE THESE SERVICES.
1. Access rights and use of the Services
Services Description: DexCare is a platform that facilitates access to health care services by health care providers, health care staff and health care systems that use the Services (“Providers”) to patients who use the Services (“Patient(s)”), including those searching for health care services and Providers thereof, and the scheduling of and payment for health care services by themselves.
Medical Advice Disclaimer: AS FURTHER SPECIFIED HEREIN, YOU ACKNOWLEDGE AND AGREE THAT DEXCARE DOES NOT PROVIDE ANY MEDICAL SERVICES NOR MEDICAL ADVICE AND DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, GUARANTEES OR ENDORSEMENTS REGARDING ANY MEDICAL SERVICES OR ADVICE THAT YOU MAY OBTAIN THROUGH THE SITE AND/OR THE SERVICES. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY SEEKING MEDICAL TREATMENT BECAUSE OF SOMETHING YOU HAVE READ ON OR ACCESSED THROUGH THE SITE. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR YOUR LOCAL EMERGENCY NUMBER IMMEDIATELY.
NO HEALTHCARE PROVIDER/PATIENT RELATIONSHIP IS CREATED WITH DEXCARE WHEN YOU USE THE SERVICES. DEXCARE IS NEITHER RESPONSIBLE NOR LIABLE FOR ANY ADVICE, COURSE OF TREATMENT, DIAGNOSIS OR ANY OTHER THIRD-PARTY INFORMATION, SITE, PRODUCT, OR SERVICE THAT YOU PURCHASE OR ACCESS THROUGH THE SITE.
The inclusion of any health care provider on the Services shall not be considered as an endorsement of such health care provider by DexCare and shall not in any way mean that DexCare has conducted any due diligence or other investigation regarding the health care provider.
Modifications to Our Service: DexCare reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that DexCare will not be liable to you or to any third party for any modification, suspension or discontinuation of the Service.
General Practices Regarding Use and Storage of Your Information: You acknowledge that DexCare may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on DexCare’s servers on your behalf. You agree that DexCare has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that DexCare reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that DexCare reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
2. Electronic communications
When you visit the Site or send e-mails to us, you are communicating with us electronically and you consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
By using the Site and opting to receive electronic communications, you acknowledge and agree that DexCare will be transmitting certain of your protected health information (“PHI”) as that term is defined under HIPAA, electronically. You acknowledge and agree that while DexCare takes commercially reasonable steps to protect the privacy and security of your PHI, no system is completely secure. You may choose not to receive emails or text messages anytime by unsubscribing.
You acknowledge and agree that you are solely responsible for providing DexCare with accurate contact information, including your mobile device number and email address, where we may send communications containing your PHI. DexCare is not responsible for user errors and omissions.
3. Your use of the services
You may use the Services only if you are 18 years or older and capable of forming a binding contract with DexCare. In connection with the Services, DexCare provides certain technological and other administrative support for or is otherwise affiliated with professional practices (“Practices”) that employ or contract with Providers. DexCare acts solely as a technology platform to provide you with products and services offered through the Services, including connecting you with Practices, Providers and Patients as applicable. DexCare does not control or interfere with the practice of medicine, nursing or other licensed professional services by Practices or any Providers, each of whom is solely responsible for the medical care and treatment they provide. By accepting these Terms of Service, you acknowledge and agree that DexCare is not a healthcare provider and that by using the Services, you are not entering into a doctor-patient or other healthcare provider-patient relationship with DexCare. By using the Services, you may, however, be entering into a doctor-patient or other healthcare provider-patient relationship involving a Patient, Practice or one or more Providers. By accepting the Terms of Service, you understand that, Practices or Providers may send you messages, reports, and emails via the Services regarding your diagnosis and/or treatment. You further understand and agree that it is your responsibility to monitor and respond to these messages, reports, and emails and that neither DexCare nor the Practices or any Provider will be responsible in any way, and you will not hold DexCare, any Practice or any Provider liable for any loss, injury, or claims of any kind resulting from your failure to read or respond to these messages or for your failure to comply with any treatment recommendations or instructions from the Practice or your Provider(s).
As a Patient, you agree to use the Services only to help you find a health care provider for yourself or another person. As a Provider, you agree to use the Services only to help you provide health care to patients more effectively and efficiently. You are solely responsible for all images, information, data, text, messages or other materials (“content”) that you upload, post, publish or display (herein after, “upload”) or email or otherwise use via the Service. You will ensure that all content you upload or share complies with all applicable laws, rules and regulations, is appropriate and non-offensive, and that you have all necessary rights to use, share, and/or upload such content, without infringing any third-party rights. DexCare reserves the right to investigate and take appropriate legal action against anyone who, in DexCare’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service in a manner that DexCare determines, in its sole discretion, is illegal or improper.
Further, you agree not to do any of the following: (a) Use, display, mirror or frame the Services or any individual element within the Services, DexCare, any DexCare trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without DexCare’s express written consent; (b) Access, tamper with, or use non-public areas of the Services, DexCare’s computer systems, or the technical delivery systems of DexCare’s providers; (c) Attempt to probe, scan or test the vulnerability of any DexCare system or network or breach any security or authentication measures; (d) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by DexCare or any of DexCare’s providers or any other third party (including another user) to protect the Services; (e) Attempt to access or search the Services or download content from the Services using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by DexCare or other generally available third-party web browsers; (f) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation; (g) Use any meta tags or other hidden text or metadata utilizing a DexCare trademark, logo URL or product name without DexCare’s express written consent; (h) Use the Services, 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; (i) Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information; (j) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services; (k) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services; (l) Collect or store any personally identifiable information from the Services from other users of the Services without their express permission; (m) Impersonate or misrepresent your affiliation with any person or entity; (n) Stalk or harass any DexCare employee, Providers or Patients either through or outside your use of the Services; (o) Violate any applicable law or regulation; or (p) Encourage or enable any other individual to do any of the foregoing.
In the event you choose to use the Services to schedule and pay out of pocket for health care services, you may be required to provide DexCare or DexCare’s financing partner with information regarding your credit card or other payment instrument. You represent and warrant to DexCare that such information is true and that you are authorized to use the payment instrument. When you initiate a payment transaction, you authorize us to provide your payment information to third parties so we can complete your transaction and to charge your payment method for the type of transaction you have selected (plus any applicable taxes and other charges). You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay DexCare the amount that is specified in the payment plan in accordance with the terms of such plan and this Terms of Service. If you dispute any charges, you must let DexCare know within sixty (60) days after the date that DexCare charges you. You shall be responsible for all taxes associated with the Services.
Further, we have no control over, and cannot guarantee the availability of, any Provider at any particular time. DexCare is not liable for any cancelled or unfulfilled appointments, or any injury or loss resulting from the foregoing, or for any other injury or loss related to your use of the Site or Services.
This Service is hosted in the United States and is intended only for users located in the United States. If you access our Service from outside the United States, you will be responsible for compliance with all local laws. You agree to comply with all laws and regulations applicable to your use of our Services.
4. Tele-Medicine
Our Services include a tele-health online solution that allows Providers to communicate with their Patients to provide health care related services online and perform virtual house calls via Internet connection. We are not responsible for internet connectivity or lack thereof or problems or issues related to the use thereof. We are not a medical service provider, health insurance company, nor licensed to sell health insurance. The Services are not intended for use by Providers and/or Patients in connection with active patient monitoring so as to allow immediate clinical action or continuous monitoring.
The Providers who deliver services through our Service are independent professionals practicing within a group of independently owned professional practices. We do not practice medicine or any other licensed profession, and do not interfere with the practice of medicine or any other licensed profession by Providers, each of whom is responsible for his, her or their services and compliance with the requirements applicable to his, her or their profession and license.
Information provided by Providers or Patients is merely transmitted via the Services, not verified or endorsed by us, and is provided on an “as-is” basis and we disclaim all warranties, either express or implied, including but not limited to the implied warranties of merchantability and fitness for particular purpose. We shall in no event be liable to you or to anyone for any decision made or action taken by any party (including, without limitation, any Service user) in reliance on information about Providers or Patients on the Service.
A Provider’s use of our Services is not an endorsement or recommendation of that Provider by us. Neither we nor any third parties who promote the Services or provide you with a link to the Services shall be liable for any professional advice you obtain from a Provider via the Services. The medical advice provided by your Provider is not under our control, nor is it provided to you by us. As a user of the Services, you accept responsibility for yourself in the use of the Services. You acknowledge that a relationship for health care services is between a Patient and their Provider, and a Patient’s obtaining services from the Provider is solely at the Patient’s own risk and the Patient and the Provider assume full responsibility for all risk associated there with, to the extent permitted by law. By using the Service, you as a Patient agree to not hold us liable in any way for any malpractice or substandard treatment a Provider may render.
We do not recommend or endorse any specific tests, Providers, products, procedures, medications, devices, opinions, or other information that may be mentioned on the Service or by a Provider or licensee of ours. We do not make any representations or warranties about the training or skill of any Providers who provide services via the Service. Each Patient is ultimately responsible for choosing his or her particular Provider. The information about Providers on the Service or in any professional directory located on the Service is not intended to be used as a tool for verifying the credentials, qualifications, or abilities of any Provider contained therein.
To the extent medical advice is provided to you as a Patient by a Provider through the Services, such medical advice is based on your personal health data as provided by you to the Provider and the local standards of care for your presenting symptoms, based on the information you provide.
Patients may be required to provide certain Personal Information, including: name, date of birth, gender, address, email, mobile and work phone, as well as a user id and password. Patients may also provide certain optional information, including middle name or initial, home phone and other contact info, pharmacy name and contact details, picture and communications preferences. In addition, Patients can communicate other health-related information to Providers during video consultation via the Services. Patient medication history is a list of prescriptions that healthcare providers have prescribed for you. A variety of sources, including pharmacies and health insurers, contribute to the collection of this history. By using the Services, you as a Patient give your permission to allow your particular Provider to obtain your medication history, specifically for use in providing care. Optional information is not required to register for an account but may be helpful to us in providing you with a more customized experience when using the Services.
Informed Consent & Risks: As with any medical procedure, there are potential risks associated with the use of tele-medicine or any other Services. We believe that the likelihood of these risks materializing is very low. These risks may include, without limitation, the following: delays in medical evaluation and consultation or treatment may occur due to deficiencies or failures of the equipment which may include poor video and data quality; security protocols could fail, causing a breach of privacy of personal medical information; lack of access to complete medical records may result in adverse drug interactions or allergic reactions or other negative outcomes.
You understand that the laws that protect privacy and the confidentiality of medical information also apply to tele-medicine. You as a Patient understand that tele-medicine may involve electronic communication of your personal medical information to medical practitioners who may be located in other areas, including out of state. You understand that you may expect the anticipated benefits from the use of tele-medicine, but that no results can be guaranteed or assured. You understand that all information will be part of your medical record and available to you by printing the summary from the visit. This information will have the same restrictions on dissemination without your consent. Except to the extent already relied upon, you understand you may withdraw your consent at any time by contacting us as set forth herein to withdraw your consent and inactivate your account. You understand that your healthcare information may be shared with other individuals for treatment, payment, and healthcare operations purposes. Psychotherapy notes are maintained by clinicians but are not shared with others, while billing codes and encounter summaries are shared with others. If you obtain psychotherapy services, you understand that your therapist has the right to limit the information provided to you if in your therapist’s professional judgment sharing the information with you would be harmful to you. You further understand that your healthcare information may be shared in the following circumstances: When a valid court order is issued for medical records; reporting suspected abuse, neglect, or domestic violence; and preventing or reducing a serious threat to anyone’s health or safety.
BY USING THE SERVICES AND/OR AGREEING TO THESE TERMS AS A PATIENT, YOU AGREE AND CONSENT THAT YOU HAVE READ AND UNDERSTAND THE INFORMATION PROVIDED HEREIN, AND UNDERSTAND THE RISKS AND BENEFITS OF TELE-MEDICINE, AND BY ACCEPTING THESE TERMS OF USE YOU HEREBY GIVE INFORMED CONSENT TO PARTICIPATE IN A TELE-MEDICINE VISIT UNDER THE TERMS DESCRIBED HEREIN. YOU ARE CONSENTING TO RECEIVING CARE VIA THE SERVICE. THE SCOPE OF CARE WILL BE AT THE SOLE DISCRETION OF THE PROVIDER WHO IS TREATING YOU, WITH NO GUARANTEE OF DIAGNOSIS, TREATMENT, OR PRESCRIPTION. THE PROVIDER WILL DETERMINE WHETHER OR NOT THE CONDITION BEING DIAGNOSED AND/OR TREATED IS APPROPRIATE FOR A TELE-HEALTH ENCOUNTER VIA THE SERVICE.
5. Intellectual Property Rights
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by DexCare, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by DexCare from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection there with are the property of DexCare, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sub-license, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by DexCare.
The DexCare name and logos are trademarks and service marks of DexCare (collectively the “DexCare Trademarks”). Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to DexCare. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of DexCare Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of DexCare Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will DexCare be liable in any way for any content, materials or services of, or provided by or on behalf of, any third parties (including users or health care providers), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that DexCare does not pre-screen content, but that DexCare and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, DexCare and its designees will have the right to remove any content that violates these Terms of Service or is deemed by DexCare, in its sole discretion, to be otherwise objectionable. The Services help Patients find and source certain third-party health care services provided by or on behalf of independent third-party Providers not related to DexCare. DexCare does not guarantee or warrant, and makes no representations regarding, the reliability, quality or suitability of such health care services nor the Providers. By using the Service, you agree to hold us free from the responsibility for any liability or damage that might arise out of the transactions involved. As a user, by posting any content in our directory, or letting us do the same, you give us license to use your content, including any content, information, and any names, etc., in promotion of our directory and Services.
NEITHER DEXCARE NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY THIRD-PARTY PROVIDER NOR ANY USER OF THE SERVICES. ANY INDIVIDUALS WHO PROVIDE ANY THIRD-PARTY SERVICES ARE NOT EMPLOYEES NOR CONTRACTORS OF DEXCARE, AND DEXCARE IS NOT RESPONSIBLE FOR THEIR ACTIONS OR INACTIONS NOR FOR ANY SERVICES THEY PROVIDE (OR FAIL TO PROVIDE).
User Content Transmitted Through the Service: With respect to the content or other materials you upload through the Service or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By voluntarily providing us with User Content, which may include Personal Information (as defined in the Privacy Policy), you are consenting to our use of Personal Information in accordance with these Terms of Service and our Privacy Policy. You also agree that any User Content you submit through the Service that is communicated to our partners, affiliates, and medical providers will be accurate and complete. By uploading any User Content you hereby grant and will grant DexCare and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sub-licensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service, the promotion, advertising or marketing thereof, the improvement of the Service, and as aggregated and/or de-identified for any lawful purpose in any form, medium or technology now known or later developed.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to DexCare are non-confidential and DexCare will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that DexCare may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of DexCare, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
DexCare does not provide any medical advice or services, and should not be relied upon as a substitute for consultations with qualified professionals who are familiar with your individual needs. The Providers (and not we) are solely responsible for all content and any health care services they provide. DexCare shall have no liability whatsoever to you for acts, omissions, care, or lack thereof, from Providers. We are not responsible for any disputes between Providers and Patients (e.g., resulting from the health care services they provide or are supposed to provide).
6. Our Obligations
To provide and process the services to you, DexCare shares your personally identifiable information with our authorized service providers that perform certain services or functions on our behalf. DexCare may be required by law to disclose information you have provided in using any of the Services. DexCare may also disclose information where someone poses a threat to DexCare’s interests (such as user fraud) or whose activities could bring harm to others. In addition, it may be necessary in the reasonable opinion of officials of DexCare that certain information be provided to third parties, such as law enforcement authorities or governing bodies for a particular healthcare provider. In the event that DexCare receives a court order to disclose information on the Services about you or your activities with the Services, you agree that such information may be disclosed.
You may request that we update or change the information you provided to us or to receive a copy of the information we have stored by e-mailing us at . We will make every reasonable effort to honor your wishes, or provide you with an explanation of why we cannot make the changes requested. We may request proof of identity before responding to any requests.
7. Third Party Websites
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. DexCare has no control over such sites and resources and DexCare is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that DexCare will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use or for reliance on any content, events, goods or services available on or through any such site or resource.
8. Indemnity and Release
You agree to release, indemnify, defend and hold DexCare and its affiliates and its and their officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any and all losses, damages, liabilities, fines, fees, penalties, costs, expenses, including reasonable attorneys’ fees, arising out of or related to any allegations, rights, claims, actions of any kind arising out of or related to: (i) injury (including death) or damage to property caused by your or your agents’ action or inaction; (ii) your use of the Service, (iii) any User Content or any other content or materials you supply directly or indirectly, (iv) your connection to the Service, (v) your violation of these Terms of Service or this Agreement, or (vi) your violation of any rights of another. If you are a California resident, you waive 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.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
ANY OBLIGATION TO INDEMNIFY AN INDEMNITEE FOR ANY LOSS, LIABILITY OR EXPENSE ARISING FROM ANY NEGLIGENT, GROSSLY NEGLIGENT, RECKLESS, WILLFUL, FRAUDULENT OR INTENTIONAL CONDUCT COMMITTED BY ANY INDEMNITEE MAY NOT BE ENFORCEABLE AGAINST ANY VISITOR OF THE SERVICES TO THE EXTENT APPLICABLE LAW SO REQUIRES, SUCH AS FROM CERTAIN JURISDICTIONS.
9. Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. DEXCARE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
DEXCARE MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, PROVIDERS, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
10. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT DEXCARE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF DEXCARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, INCLUDING IF RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE (INCLUDING WITHOUT LIMITATION ANY PROVIDER); OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL DEXCARE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID DEXCARE IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
11. Dispute Resolution by Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Agreement to Arbitrate: This Dispute Resolution by Binding Arbitration section is referred to in these Terms of Service as the Arbitration Agreement (“Arbitration Agreement”). You agree that any and all disputes or claims that have arisen or may arise between you and DexCare, whether arising out of or relating to these Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that either party: (i) may assert individual claims in small claims court, if such claims qualify; and (ii) retains the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms of Service, you and DexCare are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Prohibition of Class and Representative Actions and Non-Individualized Relief: YOU AND DEXCARE AGREE THAT EACH OF THE PARTIES MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND DEXCARE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
Pre-Arbitration Dispute Resolution: DexCare is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at . If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to DexCare should be sent to 2324 Eastlake Avenue E, Suite 500, Seattle, WA 98102. The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If DexCare and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or DexCare may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by DexCare or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or DexCare is entitled.
Arbitration Procedures: Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless DexCare and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, DexCare agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Costs of Arbitration: If you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, DexCare will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
Confidentiality: All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Severability: If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the paragraph titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of the paragraph above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.
Future Changes to Arbitration Agreement: Notwithstanding any provision in these Terms of Service to the contrary, DexCare agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending DexCare written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
12. Termination
You agree that DexCare, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if DexCare believes that you have violated or acted inconsistently with these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. DexCare may also in its sole discretion and at anytime discontinue providing the Service, or any part thereof, with or without notice and DexCare may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that DexCare will not be liable to you or any third party for any termination of your access to the Service.
13. General
These Terms of Service, in conjunction with the Privacy Policy, constitute the entire agreement between you and DexCare and govern your use of the Service, superseding any prior agreements between you and DexCare with respect to the Services. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third-party content or third-party software. These Terms of Service will be governed by the laws of the State of Washington without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within King County, Washington. The failure of DexCare to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action you may have arisen out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of DexCare, but DexCare may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles or headings in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. Notice to DexCare must be in writing, sent via registered mail or nationally recognized overnight courier, with a duplicate copy to the legal department, with confirmation of delivery. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
We will not be deemed to be in breach of these terms or liable for any breach of these terms or our privacy policy due to any event or occurrence beyond our reasonable control, including without limitation, acts of God, terrorism, war, invasion, failures of any public networks, electrical shortages, disease, epidemic, pandemic, earthquakes or floods, civil disorder, strikes, fire or other disaster.
14. Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice:
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at DexCare, Inc., 2324 Eastlake Avenue E, Seattle, WA 98102 or (253) 302-8469.
15. Changes to These Terms of Service
DexCare reserves the right, at any time, to modify, alter, or update these Terms of Service by posting the modified, altered or updated terms on the Site or through other reasonable means, and you agree to be bound by such modifications, alterations or updates. If you do not agree to such modifications, alterations or updates, you should terminate your use of the Services. Any such changes will become effective when they are posted. Your continued use of any of the Services following the posting of notice of any changes in this Agreement shall constitute your acceptance of such modifications, alterations and updates.