Last Updated Date: March 29, 2018
PLEASE BE AWARE THAT SECTION 12 OF THESE TERMS, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
Our Services. Our Service acts as a portal that connects Users with Physicians in order to enable Users to share their Medical Data with those Physicians to receive their feedback, interpretations, and notes related to the substance of those Medical Data.
Not Intended as Medical Advice. SITKA MERELY ACTS AS A VENUE TO ENABLE USERS TO CONNECT WITH PHYSICIANS, AND TO SHARE THEIR MEDICAL DATA WITH THOSE PHYSICIANS. SITKA DOES NOT PROVIDE DOES PROVIDE MEDICAL ADVICE OF ANY KIND, NOR IS THE SERVICE INTENDED AS A SUBSTITUTE FOR ACTUAL MEDICAL CARE. PERSONS REQUIRING DIAGNOSIS OR TREATMENT, OR WHO HAVE SPECIFIC QUESTIONS RELATED TO THEIR CONDITION OR CARE, ARE URGED TO CONTACT THEIR HEALTH CARE PROVIDER.
- Use of the Services and Sitka Properties. The Website and the Services (collectively, the “Sitka Properties”) are protected by copyright laws throughout the world. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Sitka Properties (including images, text, page layout or form) of Sitka; (b) you shall not use any metatags or other “hidden text” using Sitka’s name or trademarks; (c) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (d) you shall not access Sitka Properties in order to build a similar or competitive website, application or service; and (e) except as expressly stated herein, no part of Sitka Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update or other addition to Sitka Properties shall be subject to the Terms. Sitka, its suppliers and service providers reserve all rights not granted in the Terms.
Use of Your Personal information
Registering Your Account. In order to access certain features of Sitka Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account on the Website (“Account”).
- Registration Data. In registering an account on the Website, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) of legal age to form a binding contract; and (2) not a person barred from using Sitka Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (1) notify Sitka immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Sitka has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Sitka has the right to suspend or terminate your Account and refuse any and all current or future use of Sitka Properties (or any portion thereof). You agree not to create an Account or use Sitka Properties if you have been previously removed by Sitka, or if you have been previously banned from any of Sitka Properties.
Responsibility for Content.
- Types of Content. You acknowledge that all information, data, materials, photos, videos and other content (“Content”), including Sitka Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Sitka, are entirely responsible for all Content, including the Medical Data, that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Sitka Properties (“Your Content”).
- No Obligation to Pre-Screen Content. You acknowledge that Sitka has no obligation to pre-screen Content although Sitka reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. In the event that Sitka pre-screens, refuses or removes any Content, you acknowledge that Sitka will do so for Sitka’s benefit, not yours. Without limiting the foregoing, Sitka shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
- Storage. Unless expressly agreed to by Sitka in writing elsewhere or as required by applicable law, Sitka has no obligation to store any of Your Content.
- Sitka Properties. Except with respect to Your Content, you agree that Sitka and its suppliers own all rights, title and interest in Sitka Properties.
- License to Your Content. Subject to any applicable account settings that you select, you grant Sitka a fully paid, royalty-free, worldwide, royalty-free, non-exclusive and sublicensable (to Physicians) right and license to use, reproduce, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing our Services to you. You warrant that the holder of any worldwide intellectual property right, in Your Content. You agree that you, not Sitka, are responsible for all of Your Content that you Make Available on or in Sitka Properties.
- Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Sitka through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Sitka has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Sitka a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Sitka Properties.
MOBILE TEXT MESSAGE SERVICES TERMS.
The following terms in this Section 6 apply to everyone who: (1) signs up to receive one or more SMS or MMS message and/or messages from Sitka, or (2) sends us messages via SMS or MMS.
When you sign up for Sitka’s text alert program you are expressly consenting to receive text messages on behalf of Sitka, containing information about your Medical Data, in the following manner (the “Text Services”):
- If your Medical Data have been uploaded to our Services for review
- If a Physician has created notes or annotations, or otherwise provided feedback and/or any integrations related to your Medical Data.
- Responding to requests for further information about diagnoses, treatment plans or referral options.
- If a referral has been scheduled on your behalf.
- Following up with you about your health outcomes and satisfaction.
You may opt out of the Text Services at any time by texting the word STOP to +14154848126 from the enrolled mobile device. If you do that, you will receive one additional message confirming that you will no longer receive messages from Sitka related to our Text Services. If you need help with our Text Services, text the word HELP to +14154848126.We do not charge a fee for the Text Services; however, depending on your messaging plan, your mobile carrier may charge you for each message we send you or that you send us. It is your responsibility to know whether your carrier will charge you per-message costs (for instance, if you do not have an unlimited texting plan, or have exceeded your monthly quota of free messages). We assume no responsibility for charges incurred by your using the Text Services.
The Text Services may not be available in all areas at all times. SMS/MMS messages are distributed via a complex system of service providers and we cannot guarantee their availability or performance. This means we may not be able to successfully transmit SMS/MMS messages to you, and we have no liability for any such transmission delay or message failure. The Text Services may not work in the event of product, software, coverage, or other changes made by your wireless carrier or changes you make to your mobile device.
You must provide your own wireless device, subscribe to a wireless service on a participating mobile carrier, and be able to receive text messages using that wireless device and your carrier’s service.
Interactions with Physicians.
- User Responsibility. You are solely responsible for your interactions with Physicians with whom you interact; provided, however, that Sitka reserves the right, but has no obligation, to intercede in such disputes. You agree that Sitka will not be responsible for any liability incurred as the result of such interactions.
- Release. You acknowledge that Sitka merely provides a means for Users to share their Medical Data with Physicians in order to receive their feedback, thoughts and interpretations related to those Medical Data. Sitka does not have any control or authority over any Physicians, and is not responsible for their actions and inactions. You hereby release Sitka and its successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Sitka Properties, including but not limited to, any interpretations, advice, conclusions, feedback, thoughts or diagnoses provided by any Physicians. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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. The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Sitka or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
Indemnification. You agree to indemnify and hold Sitka, the Physicians, and their respective parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Sitka Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your Medical Data, including your failure to obtain any necessary consents or rights in order to grant Sitka the rights purportedly granted by you herein. Sitka reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Sitka in asserting any available defenses. This provision does not require you to indemnify any of the Sitka Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to Sitka Properties.
Disclaimer of Warranties and Conditions.
- As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF SITKA PROPERTIES IS AT YOUR SOLE RISK, AND SITKA PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. SITKA PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.
- No Liability for Conduct of Physicians. YOU ACKNOWLEDGE AND AGREE THAT SITKA PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD SITKA PARTIES LIABLE, FOR THE CONDUCT OF PHYSICIANS, AND THAT THE RISK OF INJURY FROM SUCH PHYSICIANS RESTS ENTIRELY WITH YOU.
Limitation of Liability.
- Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL SITKA PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH SITKA PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT SITKA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF SITKA PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE SITKA PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH SITKA PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON SITKA PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO SITKA PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A SITKA PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A SITKA PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A SITKA PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- Cap on Liability. UNDER NO CIRCUMSTANCES WILL SITKA PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF ONE HUNDRED DOLLARS ($100). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A SITKA PARTY FOR (1) DEATH OR PERSONAL INJURY CAUSED BY A SITKA PARTY’S NEGLIGENCE; OR FOR (2) ANY INJURY CAUSED BY A SITKA PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SITKA AND YOU.
Term and Termination.
- Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Sitka Properties, unless terminated earlier in accordance with the Terms.
- Termination of Services by Us. We may terminate and/or suspend the Services, your Account and/or these Terms in the event you breach any terms herein, or if required to do so by applicable law.
- Termination of Services by You. If you want to terminate the Services provided by Sitka, you may do so by (a) notifying Sitka at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Sitka's address set forth below.
- Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content, unless we are required to retain a copy of such Content in accordance with applicable law. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Sitka will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Sitka and limits the manner in which you can seek relief from us.
- Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Sitka, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Sitka may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
- Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Sitka, 227 Lower Walden, Carmel CA 93923. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.
- Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Sitka. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
- Waiver of Jury Trial. YOU AND SITKA HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Sitka are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 12.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, than then claim must be severed from the arbitration and brought into the State or Federal Courts located in San Mateo County, California. All other claims shall be arbitrated.
- Severability. Except as provided in subsection 12.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Sitka.
- Electronic Communications. The communications between you and Sitka use electronic means, whether you visit Sitka Properties or send Sitka e-mails, or whether Sitka posts notices on Sitka Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Sitka in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Sitka provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
- Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Sitka’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Sitka may freely assign these Terms including its rights herein, in whole or in part, without your prior consent.
- Force Majeure. Sitka shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Sitka Properties, please contact us at: email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
- Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Sitka agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Mateo County, California.
- Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS
- Notice. Where Sitka requires that you provide an e-mail address, you are responsible for providing Sitka with your most current e-mail address. In the event that the last e-mail address you provided to Sitka is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Sitka’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Sitka at the following address: Sitka, 227 Lower Walden, Carmel CA 93923. Such notice shall be deemed given when received by Sitka by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
- Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
- Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.