THE FOLLOWING DESCRIBES THE TERMS UPON WHICH THERAP SERVICES, LLC OFFERS YOU ACCESS TO OUR WEBSITE.
Welcome to the user agreement (the “Agreement” or “User Agreement”) for Therap Services, LLC (hereafter referred to as “Therap Services”). This Agreement describes the terms and conditions applicable to your use of the Website operated under the domain name of www.therapservices.net (and various permutations of such name including, but not limited to,www.therapservices.com and www.therap.net (hereinafter referred to as “the Site” or “this Site”). If you do not agree to be bound by the terms and conditions of this Agreement, do not use or access this Site.
This Agreement is effective immediately upon each user’s acceptance.
1. Authorized Use. Each use of this Site constitutes a representation and warranty by the user that he or she is properly authorized to use this Site and that his or her use is for a legitimate and lawful purpose and is limited to his or her authorization. In the event, for any reason, a user inadvertently obtains access to the patient health information (hereinafter “PHI”) or other information of a recipient of care (hereinafter a “Care Recipient”) (i) who is not being cared for by the user or the user’s employer or (ii) whose PHI may not otherwise lawfully be accessed by such user, the user shall immediately terminate such access, destroy or delete all PHI of such Care Recipient located on the user’s server(s) or on any work station under the control of the user or otherwise reproduced by the user, whether such information is stored in written, magnetic, electrical, optical, or other form, and shall immediately notify Therap Services of such access. User agrees to comply with all federal and state laws, rules and regulations regarding the maintenance of the confidentiality of PHI obtained on this Site, including, without limitation, the Health Insurance Portability and Accountability Act of 1996, and the rules and regulations promulgated thereunder, as the same may from time to time be amended (“HIPAA”). In the event of the termination of your employment or of your authority to access and use this Site, you agree that you shall not, under any circumstance, attempt to access or in fact gain access to the Site unless and until your authority to access the Site is restored.
2. Medical and Care Information Not Provided by Therap Services. The Site is a conduit for and a compilation of information provided by various users, and the information has not been developed, supplied, reviewed, authenticated, analyzed or evaluated by Therap Services. All questions about any information obtained from this Site should be directed to the individual or entity that has posted the information. Nothing contained on this Site is intended to constitute a medical diagnosis or treatment. Nothing on the Site is intended as a validation of the accuracy or completeness of the information posted.
3. No Remedy Except Termination. All information is transmitted over a medium which is beyond the control and jurisdiction of the Site. Accordingly, Therap Services has no responsibility for, or relating to, delay, failure, interruption or corruption of any data or other information transmitted in connection with use of the Site or other sites accessed through the Site. A user’s sole and exclusive remedy for dissatisfaction with the Site is to stop using the Site.
5. Reservation of Rights. The Site reserves the right, but is not obligated under any circumstances, to do any or all of the following:
- To the extent permitted by HIPAA or other applicable federal and/or state law, make a record of information posted on the Site and organize and publish PHI and other information provided by users for statistical and other lawful purposes; provided, however, no such information will disclose the names of Care Recipients or the facilities where they reside or which otherwise provide services to the Care Recipients; provided further, however, Therap Services may disclose any Care Recipient’s PHI or other information of any kind to the extent required by law.
- Investigate any allegation that information posted on the Site is inaccurate, defamatory, or has been posted in violation of applicable federal, state or other law, rules and/or regulations.
- Remove or modify any information referred to in the preceding clause; or
- Terminate any user’s access to the Site upon any breach of the terms and conditions of this Agreement or in the event we believe that your actions may cause financial loss or legal liability for you, other users or us.
6. Release. Because we are an information conduit, not an information provider, in the event that you have a dispute with one or more users or any other third party or parties, you agree to release Therap Services (and our officers, directors, agents, subsidiaries, joint venturers and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §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,” or any similar provision of any other law.
7. Your Information.
- “Your Information” is defined as any information you post on the Site or otherwise provide to Therap Services. You are solely responsible for Your Information, and we act as a passive conduit for your online distribution and publication of Your Information.
- Your Information and your activities on the Site shall not:
- be false, inaccurate or misleading;
- be in violation of any federal, state or other law, rule or regulation relating to rights of privacy or otherwise;
- be defamatory;
- contain any viruses, Trojan horses, worms, time bombs, cancel bots, Easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; or
- create liability for Therap Services or cause Therap Services to lose (in whole or in part) the services of its ISPs or other suppliers.
10. NO WARRANTY. THERAP SERVICES, ITS MANAGERS, MEMBERS, EMPLOYEES, AGENTS AND SUPPLIERS PROVIDE THE SITE “AS IS” AND WITHOUT ANY WARRANTY, EXPRESS, IMPLIED OR STATUTORY. THERAP SERVICES, ITS SUBSIDIARIES, MEMBERS, MANAGERS, EMPLOYEES, AGENTS AND SUPPLIERS (hereinafter “Affiliates”) SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.
11. LIMITATION ON LIABILITY. Each user of this Site acknowledges and understands that: (1) Therap Services does not input any information about Care Recipients on this Site; (2) disruption of utility service, the need for period maintenance and installation of upgrades, internet based assaults upon this Site (e.g., worms, viruses, etc.) and external causes beyond the control of Therap Services may result in this Site not being available 24 hours a day, 7 days a week; and (3) this Site is now in the testing stages and there may be failures that will result in an inability to access the Site or retrieve information from the Site, from time to time. In light of the foregoing, each user of this Site acknowledges and agrees that neither Therap Services nor any of its Affiliates will have any liability for negligence or other tort as a result of any failure to access this Site, retrieve information from this Site, or any other matter relating to or arising out of use or attempted use of this Site. Each user of this Site further acknowledges and agrees that Therap Services makes no warranties, express or implied, of fitness for a particular purpose, non-infringement, or any other type of warranty with respect to this Site or any information retrieved from this Site. Furthermore, each user acknowledges that, under no circumstances, will Therap Services or any of the Affiliates of Therap Services have any personal liability in connection with or arising out of this Site, including the use or attempted use of this Site. Each user hereby agrees, for itself and on behalf of any entity which employs or hires the user, to release Therap Services and all of its Affiliates from any and all liability, whether in tort, contract or otherwise, arising out of or relating to this Site. Each user specifically understands that the foregoing waiver and release is of the essence of this User Agreement and that the user would not be given access to this Site without consenting to such a waiver and release. In the event any user or third party makes a claim against Therap Services or any of its Affiliates as a result of such user’s use or attempted use of this Site, said user hereby agrees (on behalf of the user and any entity that hires and/or employs the user) to indemnify and hold Therap Services and its Affiliates harmless from and against any and all liability, damage, loss, cost and expense (including attorneys fees and costs of suit) resulting from such claim.
12. Indemnity. You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, Affiliates, officers, directors, agents, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of any third party.
13. No Agency. You and Therap Services are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
14. Resolution of Disputes. In the event of a dispute between the parties, the dispute shall be resolved in accordance with the Dispute Resolution Procedures annexed to this Agreement as Exhibit DRP and incorporated herein.
15. General. This Agreement shall be governed in all respects by the laws of the State of New Jersey as such laws are applied to agreements entered into and to be performed entirely within New Jersey between New Jersey residents. We do not guarantee continuous, uninterrupted or secure access to our Site, and operation of the Site may be interfered with by numerous factors outside of our control. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.
16. Comments Invited. The Site is new and we encourage users to contact us regarding any problems, comments and/or suggestions on how to improve it. Please direct your comments and suggestions to email@example.com.
EXHIBIT – DISPUTE RESOLUTION PROCEDURES
(a ) Except in the case of a party seeking injunctive relief, this Exhibit DRP governs any dispute, disagreement, claim, or controversy between the parties arising out of or relating to the User Agreement (the “Agreement”) to which this Exhibit DRP pertains (the “Disputed Matter”). All Disputed Matters shall be submitted to the following dispute resolution process:
- (i) Internal Mediation. Each party which is an entity shall designate a dispute resolution officer (the “Dispute Resolution Officer”) who shall have principal responsibility and authority to resolve disputes between such party and the other party. Any individual who is party to a Disputed Matter shall appear on his or her own behalf. In the event a dispute arises between parties under the Agreement, the Dispute Resolution Officers, and/or such individuals, as the case may be, shall use their best efforts to resolve the Disputed Matter within five (5) business days after the matter has been submitted for resolution. If such persons do not agree upon a decision within five (5) days after referral of the matter to them, the parties shall proceed to the next stage of the dispute resolution procedure.
- (ii) Outside Mediation. Either party may, upon written notice and within five (5) days after the conclusion of internal mediation, elect outside mediation. In outside mediation, each party which is an entity shall designate a person (with authority to settle a dispute) who will sit on a panel, along with each party that is an individual and a mutually acceptable neutral adviser. Each party will present its case to the panel at a hearing which will occur no more than ten (10) days after a party serves written notice to use outside mediation. Each party may be represented at the hearing by attorneys. If the matter cannot be resolved at such hearing by the parties, the neutral adviser may be asked to assist the parties in evaluating the strengths and weaknesses of each party’s position on the merits of the Disputed Matter. Thereafter, the parties shall meet and try again to resolve the matter. If the matter cannot be resolved at such meeting, the parties’ only recourse is litigation in State or Federal Court in Essex County, New Jersey. The mediation proceedings will have been without prejudice to the legal position of either party. No litigation may commence concerning the Disputed Matter until fifteen (15) days have elapsed from the last day of the final hearing. The parties shall each bear their respective costs incurred in connection with this procedure, except that they shall share equally the fees and expenses of the neutral adviser and the costs of the facility for the hearing. Therap Services and the user agree to use their best efforts to mutually agree on the use of a facility for which no charge will be made.
(b) Except in connection with seeking an injunction not involving the obtaining of money damages, neither party will institute any action or proceeding against the other party in any court concerning any Disputed Matter until the mediation procedures have been completed.
2. Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the User Agreement, including these Dispute Resolution Procedures (the “DRP”), shall be governed by the internal law of the State of New Jersey without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New Jersey or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New Jersey. Jurisdiction for any litigation shall be in the appropriate federal and state courts within Essex County, New Jersey, and each party waives any claim of improper venue or inconvenience of the forum and agrees to service of process by certified mail, return receipt requested.
3. Waiver of Jury Trial.EACH USER HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.