Terms and Conditions of Use Agreement
THIS IS A BINDING AGREEMENT
1.1 Below are the terms that apply to all Subscribers of i.d.mii International, Inc. products and services. Idmii.com provides you with online storage for your important personal health and medical records, and other vital documents. You should familiarize yourself with these terms because they establish your rights and responsibilities as a Subscriber. As you navigate our web site and use the services we offer, do not hesitate to contact us if you have any questions.
This Terms and Conditions of Use Agreement (Agreement) between you and IDMII sets forth the general terms and conditions governing your use of the Idmii.com site (“Site”) and the products and services available on the Site. BY ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE IDMII.COM SITE.
1.2 As used in this Agreement, the terms “i.d.mii International”, “idmii.com”, “IDMII”, “we,” “us,” or “our” refer to I.d.mii International, Inc. As used in this Agreement, the term “Subscriber” is as defined herein.
1.3 The idmii.com web site (“idmii.com” or the “Site”) is an on-line medical history and communications service provided by Idmii.com that contains health and health-related information about an individual or multiple related individuals that is submitted and/or entered by healthcare providers, healthcare organizations, and/or the individual and/or his or her designee. Each subscriber is provided a P.E.N. (Personal Emergency-Access Number) which can be used by anybody to access your medical history in the case of an emergency.
(a) “Account” means the file of health and health-related information of a Subscriber and/or his or her family members that may be stored and updated only by the Subscriber and/or his or her designee(s) which have been provided a username and password. Using the P.E.N. a Subscribers file of health may be accessed and used in case of an emergency. Only health information that is designated public will be accessible using the P.E.N., all other health-related information that is marked private is not visible by entering the P.E.N.
(b) “Disclosing Party” means the party that is disclosing health or health-related information so that it may be included in a Subscriber’s Account.
(c) “Subscriber” means an individual who executes or enters into this Agreement with IDMII to maintain and store health and health-related information in a personal Subscriber Account that may be accessed at the Idmii.com Site, and/or who accepts the terms and conditions set forth in this Agreement so as to be able to access and/or use the Idmii.com Site. A Subscriber may access, use, store, and maintain his or her own information in the Subscriber’s Account.
(1) A “Personal Subscriber” is a Subscriber who obtains his/her subscription individually and not through an employer or other organization (“Member Organization”) and pays for the subscription directly.
(2) A “Member Subscriber” is a Subscriber who obtains his or her subscription through a Member Organization which pays for the subscription on behalf of the Member Subscriber.
(3) The term “Subscriber” used hereinafter includes both Personal Subscribers and Member Subscribers.
(d) “User” means an individual accessing health-related information stored in a Subscriber’s Account and who accesses or uses the Site with the permission or in case of an emergency the P.E.N. the Subscriber
1.5 The idmii.com Site is for personal and noncommercial access and use only. As a condition of continued use of the Site, Subscribers and Users agree to use the Site solely in accordance with the terms and conditions set forth in this Agreement, as amended from time to time without notice.
- RIGHT TO USE, SITE CONTENT, GENERAL INFORMATION
2.1 IDMII hereby grants to the Subscriber and Users the right to access, view, and use the Site, subject to the terms and conditions of this Agreement. IDMII reserves the right to add new features to the Site and remove current features from the Site without notice. The Subscriber and/or a User may download and/or print a copy of the information stored in their respective Accounts from the Site for personal use only and, when appropriate, in a manner consistent with Section 8 (Copyright).
2.2 IDMII NEITHER PRACTICES MEDICINE NOR DISPENSES MEDICAL SERVICES.
2.3 The content on the idmii.com Site and in Subscribers’ Accounts, including but not limited to, text, graphics, images, information obtained from third parties, links, and other material (“Content”) is intended for informational and educational purposes only.
2.4 The Content on the idmii.com Site should not be considered medical or health advice. Nothing on the Site is intended to be used for medical diagnosis or treatment, or to suggest a course of treatment for a particular Subscriber or User. The Content is not intended to be a substitute for professional medical advice, diagnosis, or treatment.
2.5 Subscribers and Users should never disregard professional medical advice or treatment or delay seeking professional medical advice or treatment because of something on the idmii.com Site. The Content on the Idmii.com Site should not be used in place of a visit, call, consultation, or advice to, with, or from a qualified healthcare provider, including a personal physician.
2.6 Information that is obtained from the Idmii.com Site is not exhaustive, should not be considered complete, and does not cover all diseases, ailments, physical or mental conditions, or their treatment. The advice of the Subscriber’s or User’s physician and/or any other qualified healthcare provider should be obtained directly from that physician or provider as appropriate. ANY QUESTIONS ABOUT ANY MEDICAL CONDITION OR TREATMENT FOR ANY CONDITION SHOULD BE DIRECTED TO YOUR PHYSICIAN OR A QUALIFIED HEALTHCARE PROVIDER.
2.7 IDMII is not a covered entity as that term is defined in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and is not required to comply with its requirements.
- ACCESS TO AND USE OF THE SITE BY SUBSCRIBERS AND USERS
3.1 Access to and use of the idmii.com site is available on a pre-paid annual or monthly subscription basis.
(a) The Subscription Fee to access and use the idmii.com Site and to establish an Account is defined in the Enrollment section of the Idmii.com Site. Subscribers may register on the Idmii.com Site for an Annual or a Monthly Subscription in accordance with Paragraph 3.1(b) (Subscription Period) hereinafter. Member Subscribers are provided a Monthly Subscription during the term of their relationship with the Member Organization.
(b) In the case of an Annual Subscription, the Subscriber will be entitled to access and use the idmii.com Site for an Initial Term of one (1) year from the date of registration provided the Subscriber and any Users of the Subscriber’s Account remain in compliance with the terms and conditions of this Agreement. In the case of a Monthly Subscription, the Subscriber will be entitled to access and use the idmii.com Site for an Initial Term of one (1) month from the date of registration provided the Subscriber and any Users of the Subscriber’s Account remain in compliance with the terms and conditions of this Agreement.
(c) This Agreement will be automatically renewed for a Renewal Term of an additional one (1) year in the case of an Annual Subscription or for one (1) month in the case of a Monthly Subscription at the end of the Initial Term and at the end of each automatic Renewal Term thereafter, unless this Agreement is terminated in accordance with Paragraphs 5.3, 5.4, and 5.5 herein.
(d) By registering as a Personal Subscriber each Personal Subscriber authorizes IDMII to charge the Personal Subscriber’s credit card for the amount of the Subscription Fee within 24 hours of registration. The Subscription Fee will be charged on the first day of the Initial Term and the first day of each Renewal Term.
(e) IDMII reserves the right to charge or change Subscription Fees, surcharges, and/or other fees at any time upon thirty (30) days prior written notice.
3.2 Each Subscriber may enter or upload, maintain, and store information, including copies of documents, records, images, and information submitted to the Subscriber by healthcare providers or other healthcare organizations, to a personal, secure, and unique Account established for the Subscriber. IDMII, or a third party acting on behalf of IDMII, will electronically store and maintain Subscribers’ Accounts on servers at IDMII or at the site of a third party acting on IDMII’s behalf.
3.3 Each Subscriber Account can be tailored by the Subscriber to upload, maintain, and store health and health-related information for themselves.
3.4 Whenever a Subscriber’s information is submitted to or entered in the Subscriber’s Account, that information will be communicated using encryption technology called Secure Socket Layer (“SSL”) encryption software. However, IDMII cannot and will not guarantee that: (a) the information, during its transmission to a Subscriber’s Account, will be protected against loss, misuse or alteration by third parties; or (b) access to Subscribers’ Accounts will be uninterrupted; or (c) SSL encryption cannot be breached.
3.5 It is the responsibility of each Subscriber to ensure that no unauthorized person has access to the Subscriber’s P.E.N., User ID, and Passwords. In the case of an emergency healthcare providers are exempt and are always authorized to access the Subscriber’s medical health history and other health related information. It is each Subscriber’s sole responsibility to control the dissemination and use of the Subscriber’s P.E.N., User ID, and Passwords, authorize, monitor and control access to and use of the Subscriber’s Account, and promptly inform IDMII of any need to deactivate or change the Subscriber’s User ID and/or Passwords. IDMII cannot and will not assume any responsibility or liability for any information submitted to a Subscriber’s Account or any information that is used or misused whether submitted, used, or misused by (a) the Subscriber; (b) Users accessing the Subscriber’s Account and/or medical history via P.E.N.; (c) the Subscriber’s designee; (d) healthcare providers; (e) other healthcare organizations; (f) other third parties; or (g) Member Organizations, whether or not acting on the Subscriber’s behalf.
3.6 The Subscriber understands and agrees, consents, and authorizes: (a) his or her individually identifiable health information on the Subscriber’s Account to be stored, entered, and maintained on the idmii.com Site in accordance with the terms of this Agreement; and (b) the Subscriber, and anyone with the Subscriber’s idmii.com User ID and Password, can access, view, add, revise, and/or delete information from the Subscriber’s Account; and (c) the Subscriber, and anyone with the Subscriber’s P.E.N., can access and view information marked public in the Subscriber’s Account.
3.7 The Subscriber hereby grants IDMII, its employees, officers, directors, agents, and contractors, and all other persons or entities involved in the operation of IDMII or of the Site the right to access, transmit, receive, monitor, retrieve, store, maintain, and use the information in the Subscriber’s Account to operate the Site, including but not limited to converting documents received on the Subscriber’s behalf to an electronic format, printing and delivering personal Emergency Cards, Jewelry, and Stickers, and maintaining the Subscriber’s Account.
3.8 Subscribers to idmii.com may also upload or submit by e-mail or facsimile their personal health information and medical records, X-rays and other personal medical images, and other health-related information to their respective Accounts. To the extent permitted by law, any images submitted to IDMII for uploading to a Subscriber’s Account will become the property of IDMII and will not be returned. IDMII assumes no responsibility for the quality of X-rays or other personal medical images reproduced on the idmii.com Site or for medical decisions which are based on X-rays, EKGs, or other personal medical images archived on the idmii.com Site.
3.9 The entity or individual, including any Subscriber that submits or enters health or health-related information into a Subscriber’s Account is solely responsible for that information’s accuracy and completeness. Each Subscriber is responsible for reviewing information in his or her Subscriber’s Account as well as any documents produced from IDMII or the idmii.com Site such as Emergency Cards, Jewelry, and Stickers and notifying IDMII, or a third party designated by IDMII, of any errors.
- SUBSCRIBERS’ AND USERS’ RESPONSIBILITIES
4.1 Subscribers and Users agree:
(a) to maintain all equipment required for access to and use of the idmii.com Site, other than equipment owned or operated by IDMII or its affiliates and vendors;
(b) to maintain the security of User IDs, Passwords, and other confidential information relating to the Subscriber’s Idmii.com Account, to make accessible the P.E.N. by emergency services in the case of an emergency;
(c) not to introduce onto the Site or to users of the Site, directly or indirectly, computer viruses, worms, Trojan horses or other code that manifests or could potentially manifest contaminating or destructive properties;
(d) as to Personal Subscribers and Users, to be responsible for all charges resulting from the access and use of the Subscriber’s Account, including any unauthorized access and use, if any;
(e) to notify IDMII as soon as reasonably practicable of any real or suspected unauthorized use of the Subscriber’s Account;
(f) to comply with instructions provided by IDMII for using, maintaining, or correcting the Subscriber’s Account; and
4.2 Each Subscriber is responsible for the communications submitted to or entered into the Subscriber’s Account and their respective access and use of the idmii.com Site. A Subscriber, User, and/or a Subscriber’s designee may not, under any circumstances, do any of the following:
(a) transmit any information that is libelous or defamatory;
(b) transmit any message, data, image or program that is indecent, obscene or pornographic;
(c) transmit any message, data, image or program that would violate the property rights of others, including unauthorized copyrighted materials, trade secrets or other confidential proprietary information and trademarks or service marks used in an infringing manner;
(d) use the idmii.com Site to threaten, harass, stalk, abuse or otherwise violate the legal rights, including rights of privacy and publicity, of others;
(e) intercept or attempt to intercept the transmission of files or other private communications not intended for the Subscriber;
(f) send e-mails to other Subscribers or Users of the idmii.com Site for any purpose other than personal communication;
(g) use the idmii.com Site to advertise or offer, on an unsolicited basis, to sell goods or services to other Subscribers or Users or use the Site for purposes of distributing unsolicited messages to one or more individuals;
(h) upload or download files that contain software or other material protected by intellectual property laws, privacy laws, or publicity laws, or any other applicable law unless personally owned or controlled or unless the necessary consent(s) to use, access, and/or communicate such files has been received;
(i) upload information, documents, and/or files that contain viruses, worms, Trojan horses, corrupted data or other code that manifests or potentially could manifest contaminating or destructive properties;
(j) use the idmii.com Site in such a manner as to affect adversely the availability of its resources to others;
(k) falsely or fraudulently purport to be an employee or agent of IDMII;
(l) cause disruptive incidents;
(m) fail to comply with applicable laws and regulations while using or accessing the idmii.com Site; or
(n) post or transmit any message or information that is harmful, threatening, abusive or hateful. IDMII reserves the right to take any action as it deems appropriate in cases where the idmii.com Site is used to disseminate statements that are deeply and widely offensive and/or harmful.
4.3 Each time a Subscriber uploads or posts information, data, a document, or a file to the idmii.com Site, the Subscriber or User, as applicable, represents and warrants that he or she owns or otherwise controls the rights to the information, data, document, or file, or that he or she has the necessary consents to upload or post it.
4.4 You represent and warrant that you are at least 18 years of age and that you possess the legal right to enter into this Agreement and to use the idmii.com Site in accordance with this Agreement.
4.5 As to Personal Subscribers, you agree to be financially responsible for the use of the idmii.com Site and for use of your Account by others, including minors for whom you have responsibility and/or who are living with you and for other immediate family members living with you.
4.6 You further understand and agree to comply with the responsibilities and obligations as set forth in this Agreement, and you understand and agree that failing to comply with any of the foregoing limitations or obligations may result in civil or criminal liability.
- TERM; TERMINATION
5.1 The Effective Date of this Agreement is the date on which the Subscriber enrolls with the idmii.com Site.
5.2 Subject to payment of applicable fees, a Subscriber Account, if any, may access and use the idmii.com Site:
- for a Term of one (1) year, commencing on the Effective Date if Subscriber purchases an “Annual Subscription;” or
- for a Term of one (1) month, commencing on the Effective Date is Subscriber purchases a “Monthly Subscription”.
5.3 Either party may terminate the Subscriber’s right to use the Site and/or his or her Account and participation under this Agreement at any time, with or without cause, by giving written notice to the other party no later than thirty (30) days prior to the end of the Initial or any Renewal Term.
- In the case of a Member Subscriber, this Agreement will terminate upon the Member Subscriber ceasing its affiliation with the Member Organization. The Member Subscriber may elect to continue to access and use his or her Account as a Personal Subscriber, in which case the obligations of Personal Subscribers will apply, including without limitation, the payment of applicable fees.
5.4 Notwithstanding anything to the contrary in this Agreement, IDMII may immediately terminate this Agreement or suspend a Subscriber’s Account in the event that IDMII determines, in its sole discretion, that a Subscriber or a User of the Subscriber’s Account has violated a material provision of this Agreement, including failing to make timely payment for the right to access and use the Site. IDMII shall confirm such termination or suspension by subsequent written notice.
5.5 The termination of this Agreement will not affect any provision of this Agreement which, by its wording or its nature, is intended to remain effective and to continue to operate in the event of termination of this Agreement, and will not prejudice or affect the rights of any party against another with respect to any breach of the terms and conditions of this Agreement. Notwithstanding the foregoing, the provisions of Sections 8 (Copyright), 10 (Indemnification), 11 (Waiver, Release and Limitation of Liability), and 12 (Miscellaneous) will survive Termination of this Agreement.
5.6 In the case of an Annual Subscriber, IDMII shall refund the excess, if any, of the annual subscription paid over the monthly subscription cost for each of the elapsed months, both full and/or partial, from the most recent starting date of the Annual Subscription. In the case of a Monthly Personal Subscriber, IDMII shall refund the excess, if any, of the months paid in advance. No refund will be provided for the month in which the Agreement is terminated.
5.7 Upon the termination or expiration of this Agreement, IDMII will retain data in a Subscriber’s Account pursuant to IDMII’s standard data retention policy, but in no case less than thirty (30) days from the date of this Agreement’s expiration or termination. After such period of retention, IDMII shall destroy Subscriber’s Account data.
- IDMII AND SITE OPERATIONS
7.2 IDMII shall maintain technological systems, policies, and procedures to guard against unauthorized access to information that is transmitted electronically, including encryption and/or appropriate technical security mechanisms.
7.3 IDMII shall not use, disclose, or process the information submitted for inclusion in a Subscriber’s Account except to the extent necessary for the proper management and administration of the information or in order to carry out the legal responsibilities of IDMII.
7.4 Subscribers and Users are encouraged to use discretion while browsing the Internet on searches initiated from the idmii.com Site. Subscribers and Users understand that the idmii.com Site may link unintentionally to sites containing information that some people may find inappropriate or offensive. Links may also lead to sites that contain inaccurate information, false or misleading advertising, or information that violates copyright, libel or defamation laws.
7.5 IDMII makes no representations concerning any effort to review any or all of the content of sites for which links are provided on the idmii.com Site. IDMII does not in anyway operate, control or endorse any information, products or services provided by third parties through the Internet.
7.6 The inclusion of any link on the idmii.com Site does not imply an endorsement by IDMII of any information, products, or services offered by the linked website, but is for IDMII Subscribers’ and Users’ reference and convenience only.
7.7 Clicking on a link on the idmii.com Site which directs the Subscriber or User to an off-Site page or to another site is at the Subscriber’s or User’s own risk and subject to the terms and conditions of use of such sites.
7.8 IDMII cannot and will not review communications and materials posted or uploaded to the idmii.com Site for accuracy or completeness, and IDMII is not responsible for the content of such communications and materials.
7.9 IDMII reserves the right to remove or block communications or materials that IDMII determines, in its sole discretion, to (a) be abusive, libelous, defamatory or obscene, (b) be fraudulent, deceptive or misleading, (c) violate a copyright or trademark or other intellectual property right of another, (d) contain or have attached a program, virus, worm, or other device or code that could pose a security risk to IDMII or the Idmii.com Site, or (e) be offensive or otherwise unacceptable to IDMII.
8.1 All content on the idmii.com Site, including but not limited to, all graphs, graphics, photographs, text, sounds, data, and audio and video clips, is the exclusive property of IDMII, its licensors, or its content suppliers, and is protected by U.S. and international copyright laws. The compilation, collection, selection, arrangement, assembly and coordination of all content available on the Site is the exclusive property of IDMII and protected by U.S. and international copyright laws.
8.2 All information is deemed the exclusive property of the Disclosing Party prior to uploading or entering any information into an individual Subscriber’s Account.
8.3 Except as provided in Section 3.8 herein or otherwise expressly agreed to in writing, disclosure of any information to the Idmii.com Site does not transfer legal title of such information to IDMII.
8.4 IDMII is entitled to non-exclusive possession of the information submitted to or entered into a Subscriber’s Account subject to the terms of this Agreement. The right to possess such information will be automatically terminated upon the expiration or termination of this Agreement unless (a) otherwise agreed to in writing; or (b) return or destruction of the information is not feasible, in which event the right of possession is limited to possession for the purpose(s) which makes return or destruction of the information not feasible.
8.5 Information on the idmii.com Site may be displayed, reformatted, and/or printed for the Subscriber’s or User’s personal, non-commercial use only. Information on the Idmii.com Site may not be reproduced, retransmitted, distributed, disseminated, sold, published, broadcast, or circulated to or for anyone. Any copy made of information obtained through the Idmii.com Site must include the copyright notice.
8.6 The Idmii.com Site and any additional sites that are owned or controlled by IDMII are trademarks of IDMII and are protected by state and federal laws. Any unauthorized use of trademarks appearing on the Site may constitute a violation of law, which could result in both civil and criminal penalties.
- DISCLAIMER; NO WARRANTIES
9.1 The Idmii.com Site is provided “AS IS” and “AS AVAILABLE” without warranty of any kind, either express or implied, including but not limited to, warranties of merchantability, fitness for a particular use or purpose, title, infringement, accuracy, reliability, completeness, timeliness, usefulness, adequacy or suitability of the Content.
9.2 IDMII cannot and will not warrant against human and machine errors, omissions, delays, interruptions or losses, including loss of data or inability to access data. Further, IDMII cannot and does not warrant or guarantee that the functions or services performed on the Idmii.com Site will be uninterrupted or error-free, or that defects in the Idmii.com Site will be corrected.
9.3 IDMII cannot and will not guarantee that any one or all of your healthcare providers will transmit all or any portion of your medical records or other health information. You should not rely exclusively on the IDMII Content to describe accurately and completely your past, present, or future physical or mental health or condition or the provision of health care to you.
9.4 IDMII will not independently and separately verify the truth and accuracy of information supplied by your healthcare providers or entered by you. Information that is submitted by your healthcare providers or entered by you or your designee will be considered by IDMII as accurate and complete. You and your healthcare providers are solely responsible for identifying and correcting any and all errors in information stored oN the Idmii.com Site on your behalf.
9.5 SUBSCRIBERS of the Idmii.com Site are solely responsible for (a) implementing and maintaining adequate procedures and checkpoints to satisfy their particular requirements for accuracy of data input and output and (b) maintaining a means external to IDMII for the reconstruction of any lost data.
9.6 You understand and agree that information communicated to or otherwise entered in the idmii.com site will be communicated over local exchange, interexchange and internet backbone carrier lines and through routers, switches and other devices owned, maintained and serviced by third party local exchange and long distance carriers, utilities, Internet Service Providers and others, all of which are beyond the control of IDMII. IDMII cannot and will not assume any liability for or related to the delay, failure, interruption, interception or corruption of any data or other information communicated to or entered in the idmii.com Site.
9.7 IDMII cannot and will not guarantee or warrant that files available for downloading from this Site will be free of infection by viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties.
9.8 IDMII CANNOT AND will not assume any liability for any of the Content on the Site. Reliance on any information presented on the Site is at THE USER’S own risk. IDMII reserves the right to change or discontinue any aspect or feature of the Site from time to time without notice.
9.9 Information entered by a subscriber OR USER or provided by his or her healthcare providers AND ORGANIZATIONS will be used by IDMII only for THE FOLLOWING purposes:
(A) providing SUBSCRIBERS AND USERS the ability to ACCESS AND use the Idmii.com site via a valid idmii.com P.E.N.,USER ID AND passwordS.
(B) PROVIDING EMERGENCY ACCESS AND USE OF A SUBSCRIBER’S ACCOUNT TO HEALTH CARE PROVIDERS AND OTHERS WHO ACCESS THE MYMEICALRECORDS.COM SITE USING A VALID EMERGENCY P.E.N.
(C) AS NECESSARY FOR THE PROPER MANAGEMENT AND ADMINISTRATION OR IN ORDER TO CARRY OUT THE LEGAL RESPONSIBILITIES OF IDMII.
9.10 IDMII CANNOT AND WILL NOT BE LIABLE FOR THE AUTHORIZED OR UNAUTHORIZED USE, misuse, and/OR DISCLOSURE OF Information that is stored and/or maintained in a subscriber’s account, including the information contained within THE EMERGENCY FOLDER AND/OR ANY OF THE SECONDARY FOLDERS.
You agree to indemnify, defend, protect, release, and hold IDMII, its officers, directors, employees, agents, and its affiliates, Information Providers, and Suppliers and their respective officers, directors, agents, and employees harmless from and against any and all losses, expenses, damages to persons or property, injuries or deaths of persons, liability, claims, liens, demands, and causes of action, including claims of infringement of copyright, trademark, or other intellectual property rights, and including the amounts of judgments, penalties, interest, court costs, and legal fees including reasonable attorney’s fees incurred by IDMII, its affiliates or their respective officers, agents, and employees in defense of same (“Claims”) arising in favor of any person, corporation, or other entity, including the parties hereto and their employees, contractors, and agents in connection with this Agreement or any activity related to your Account or your use of the Idmii.com Site. You understand and agree that such indemnity shall apply regardless of whether the Claims arise in whole or in part from the actual or alleged sole, comparative, concurrent, active, passive, contributory or gross negligence of IDMII, its affiliates and their respective officers, directors, agents, and employees or by you or any other person accessing and/or using the Site and/or your Account.
- WAIVER, RELEASE AND LIMITATION OF LIABILITY
11.1 You agree that neither IDMII nor its officers, directors, employees, and agents, nor its affiliates, Information Providers, or Suppliers and their respective officers, directors, employees, and agents shall have any liability to you under any theory of liability or indemnity in connection with, arising out of, or in any way incident to this Agreement or any activity related to your Account or your access or use of the Idmii.com Site. You hereby release and forever waive any and all claims you may have against IDMII, its officers, directors, employees, and agents and its affiliates, Information Providers, and Suppliers and their respective officers, directors, employees, and agents for losses or damages you sustain in connection with your use of the Idmii.com Site.
11.2 Notwithstanding the foregoing paragraph, the total collective liability of IDMII, its officers, directors, employees, and agents, and its affiliates, Information Providers, and Suppliers and their respective officers, directors, employees, and agents, if any, for losses or damages will not exceed the fees paid during the immediately preceding one (1) calendar year by the Subscriber for the particular information or service provided. All other damages, direct or indirect, special, incidental, consequential or punitive, including but not limited to, lost profits or damages resulting from lost data or business interruption arising from any use of or inability to use any Content or other parts of the Idmii.com Site, are hereby excluded even if IDMII, its officers, directors, employees, and agents and its affiliates, Information Providers, and Suppliers and their respective officers, directors, employees, and agents have been advised of the possibility of such damages.
- BINDING ARBITRATION.
- Purpose:If you have a Dispute (as defined below) with IDMII, you or IDMII may elect to arbitrate that Dispute in accordance with the terms of this Arbitration Provision rather than litigate the Dispute in court. Arbitration means you will have a fair hearing before a neutral arbitrator instead of in a court by a judge or jury.
- Definitions:As used in this Provision, the term “Dispute” means any dispute, claim or controversy between you and IDMII, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence or any other intentional tort), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Provision (with the exception of the enforceability of the class action waiver clause provided in Section E(2) below). “Dispute” is to be given the broadest possible meaning that will be enforced. As used in this Provision, “IDMII” means I.d.mii International, Inc., its officers, directors, employees and agents, and all entities using the brand name “I.d.mii International”. As used in this Provision, the term “Arbitration Provision” means all the terms of this Section 13.
- Initiation of Arbitration Proceeding/Selection of Arbitrator:If you or IDMII elect to resolve your Dispute with IDMII through arbitration pursuant to this Arbitration Provision, the party initiating the arbitration proceeding may select from the following arbitration organizations, which will apply the appropriate rules for consumer claims to arbitrate the Dispute:
- American Arbitration Association (“AAA”), 335 Madison Ave., Floor 10, New York, NY 10017-4605, 1-800-778-7879,www.adr.org
- USA&M Portland, Oregon, 1000 S.W. Broadway, Suite 1710, Portland, OR 97205, (503) 223-2671,www.usam-oregon.com
- National Arbitration Forum (“NAF”), P.O. Box 50191, Minneapolis, MN 55405-0191, 1-800-474-2371,www.arbitration-forum.com
- Arbitration Procedures:Because the service provided to you by IDMII concerns interstate commerce, the Federal Arbitration Act (“FAA”), not state arbitration law, will govern the arbitrability of all Disputes. However, applicable federal law or the law of the state where you receive the service from IDMII may apply to and govern the substance of any Disputes. Any state statutes pertaining to arbitration, however, will not be applicable under this Arbitration Provision.
If there is a conflict between this Arbitration Provision and the rules of the arbitration organization chosen, the rules contained in this Arbitration Provision will govern. If the arbitration organization that you selected will not enforce this Arbitration Provision as written, it cannot serve as the arbitration organization to resolve your dispute with IDMII. If this situation arises, the parties shall agree on a substitute arbitration organization. In the event that the parties are unable to agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint a service that will enforce the Provision as written. If there is a conflict between this Arbitration Provision and the rest of the Subscriber Agreement, this Arbitration Provision will govern.
You and IDMII agree that a single arbitrator will resolve the Dispute. You should know that participating in arbitration may result in limited discovery depending on the rules of the arbitration organization that is chosen to resolve the Dispute. The arbitrator will apply applicable statues of limitation (as modified by this Arbitration Provision), will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information, including the use of protective orders to prohibit disclosure outside of the arbitration, if requested to do so by you or IDMII.
The arbitrator will make any award in writing but need not provide a statement of reasons unless one is requested by a party. Upon a request by you or IDMII, the arbitrator will provide a brief statement of the reasons for the award. An award rendered by the arbitrator may be entered in any court having jurisdiction over the parties.
If an award granted by the arbitrator exceeds Seventy-Five Thousand Dollars ($75,000.00), either party can appeal that award to a three-arbitrator panel administered by the same arbitration organization. The members of the three-arbitrator panel will be selected according to the rules of the arbitration organization. The party wishing to appeal the decision of the single arbitrator shall have thirty (30) days from the date of entry of the written arbitration award to notify the arbitration organization, through a written notice of appeal, that it is exercising its right to appeal. The arbitration organization will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel shall be final and binding, except for any appellate right which exists under the FAA.
- YOU MUST CONTACT IDMII WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE, OR YOU WAIVE THE RIGHT TO PURSUE A CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.
- ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE IS NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS-ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS SIMILARLY SITUATED.
- Location of Arbitration:The arbitration will take place at a location, convenient to you, in the area where you receive the service from IDMII.
- Payment of Arbitration Fees and Costs:IDMII WILL ADVANCE ALL ARBITRATION FILING FEES AND ARBITRATOR’S COSTS AND EXPENSES UPON YOUR WRITTEN REQUEST. YOU ARE RESPONSIBLE FOR ALL ADDITIONAL COSTS THAT YOU INCUR IN THE ARBITRATION, INCLUDING, BUT NOT LIMITED TO ATTORNEYS OR EXPERT WITNESSES. IF THE ARBITRATION PROCEEDING IS DECIDED IN IDMII’S FAVOR, YOU SHALL REIMBURSE IDMII FOR THE FEES AND COSTS ADVANCED TO YOU ONLY UP TO THE AMOUNT THAT YOU WOULD HAVE PAID TO FILE A CASE REGARDING YOUR DISPUTE WITH IDMII IN THE STATE COURT WHERE YOU RECEIVE THE SERVICE FROM IDMII. IF THE ARBITRATION PROCEEDING IS DETERMINED IN YOUR FAVOR, YOU WILL NOT BE REQUIRED TO REIMBURSE IDMII FOR ANY OF THE FEES AND COSTS ADVANCED BY IDMII. IN THE EVENT A PARTY ELECTS TO APPEAL AN AWARD TO A THREE-ARBITRATOR PANEL, THE PREVAILING PARTY IN THE APPEAL IS ENTITLED TO RECOVER ALL REASONABLE ATTORNEYS’ FEES AND COSTS INCURRED IN THAT APPEAL. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS ARBITRATION PROVISION, IDMII WILL PAY ALL FEES AND COSTS WHICH IT IS REQUIRED BY LAW TO PAY.
- Severability:If any clause within this Arbitration Provision (other than the class action waiver clause identified in Section E(2) above) is found to be illegal or unenforceable, that clause will be severed from the Arbitration Provision, and the remainder of the Arbitration Provision will be given full force and effect. If the class action waiver clause is found to be illegal or unenforceable, the entire Arbitration Provision will be unenforceable, and the dispute will be decided by a court.
In the event that this entire Arbitration Provision is determined to be illegal or unenforceable for any reason, or if a claim is brought in a Dispute that is found by a court to be excluded from the scope of this Arbitration Provision, you and IDMII have each agreed to waive, to the fullest extent allowed by law, any trial by jury.
- Exclusions from Arbitration:YOU AND IDMII AGREE THAT THE FOLLOWING WILL NOT BE SUBJECT TO ARBITRATION: (1) ANY CLAIM FILED BY YOU OR BY IDMII THAT IS NOT AGGREGATED WITH THE CLAIM OF ANY OTHER SUBSCRIBER AND WHOSE AMOUNT IN CONTROVERSY IS PROPERLY WITHIN THE JURISDICTION OF A COURT WHICH IS LIMITED TO ADJUDICATING SMALL CLAIMS; (2) ANY DISPUTE OVER THE VALIDITY OF ANY PARTY’S INTELLECTUAL PROPERTY RIGHTS; (3) ANY DISPUTE RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH UNAUTHORIZED USE, THEFT OR PIRACY OF SERVICE.
- Continuation:This Arbitration Provision will survive the termination of your service with IDMII.
13.1 Applicable Law. This Agreement is governed by and is to be construed according to the laws of the State of Delaware, without regard to that State’s conflicts of law principals.
13.2 Third Party Rights. The provisions of paragraphs 10 (Indemnification) and 11 (Waiver, Release and Limitation of Liability) are for the benefit of IDMII and its officers, directors, employees, and agents, and its affiliates, Information Providers, Suppliers, and their respective officers, directors, employees, and agents. Each of these individuals or entities will have the right to assert and enforce those provisions directly against you on its own behalf.
13.3 Nonwaiver. IDMII’s failure to insist upon or enforce strict performance of any provision of this Agreement or to exercise any rights herein will not be construed as a waiver of any provision or relinquishment to any extent of IDMII’s right to assert or rely upon such provisions or rights on any future occasion. Neither the course of conduct between the parties nor trade practice will act to modify any provision of this Agreement.
13.4 Assignment. IDMII may assign its rights and obligations under this Agreement to any party at any time without notice. Commencing immediately upon such assignment, IDMII will be relieved of any further obligation hereunder.
13.5 Notices. Any notice which may be or is required to be given under this Agreement must be in writing and must be sent by first class mail, fax, courier, as an electronic record attached to an e-mail or sent to the Subscriber’s Site message box. All notices will be effective upon receipt by the party at each party’s address as follows:
If by means of electronic mail, to the most recent e-mail address provided by the Subscriber at the time of registration or modification of the Subscriber’s profile.
If by means of first class mail, fax, or courier, to the Subscriber’s address on file in IDMII’s account information.
i.d.mii International, Inc.
P.O. Box 529
Yellville, AR 72687
ATTN: Chief Executive Officer
E-Mail: [email protected]
13.6 Severability. The provisions of this Agreement are severable, and in the event any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability will not in any way affect the validity or enforceability of the remaining provisions hereof, but such invalid or unenforceable provision will be deemed modified to the extent necessary to render it valid or enforceable, preserving to the fullest extent permissible the intent of the parties set forth herein.
13.7 Amendments. IDMII reserves the right to amend this Agreement from time to time without notice. Such Amendment will be effective immediately upon either posting the Amendment or this Agreement as amended. A Subscriber’s or User’s continued access to or use of the Idmii.com Site will be deemed the Subscriber’s conclusive acceptance of any and all Amendments and the most current amended Agreement.
13.8 Force Majeure. Neither Party will be liable for any performance failure or delay for any cause beyond that Party’s reasonable control.
13.9 Entire Agreement. This Agreement, as amended from time to time, constitutes the entire agreement and understanding between the parties with respect to the services, responsibilities, and obligations specified and agreed upon in this Agreement and supersedes all prior oral or written agreements and understandings between the parties with respect to such services, responsibilities, and obligations.