Terms of Use
OM HEALS TERMS OF USE
Effective: September 14, 2021
Last updated: September 5th, 2023
TERMS OF USE:
These Terms of Use (“Terms”) apply to your access to and use of the websiteand our products and Directory(collectively, our “Directory”) providedby OM Heals, Inc. (“OM Heals,” “we” or “us” ).
1. Acceptance of the Terms
PLEASE READ THESE TERMS BEFORE USING OUR DIRECTORY AS THEY AFFECT YOURLEGAL RIGHTS AND OBLIGATIONS. BY ACCESSING OR USING OUR DIRECTORY, YOU AGREE TOAND ARE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, INCLUDINGTHE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 11, DONOT ACCESS OR USE OUR DIRECTORY. We reserve the right to change these Termsat any time, without any prior notice to you. Any updates to these Terms willbe posted or linked to from our Digital Properties, including atwww.om-heals.com, and will apply to you prospectively, so you should check backeach time you use our Directory so you are aware of any changes, as they arebinding on you.
2. Medical and Therapeutic Disclaimer
The Directory and contents of the website such as the information, text,graphics, images, video, webinars, data, and any other material (collectively,“Content”) are for general informational purposes only. The Content is notintended to be a substitute for professional medical or therapeutic advice,diagnosis, or treatment. Using or accessing the Directory and/or providingpersonal or medical information to OM Heals does not create a physician-patientor a therapist-patient relationship between you and OM Heals. OM Heals does notprovide medical or therapeutic advice, diagnosis, opinion or treatment. Alwaysseek the advice of your physician, therapist, or other qualified healthprovider with any questions you may have regarding a medical condition. Neverdisregard professional medical advice or delay in seeking it because ofsomething you have read in our Content. Never rely on the Content in place ofseeking professional medical advice. OM Heals does not recommend or endorse anyspecific tests, physicians, products, procedures, opinions, or otherinformation that may be mentioned in the Content. Reliance on any informationprovided by OM Heals or practitioners working with us is solely at your ownrisk. IF YOU BELIEVE YOU HAVE A MEDICAL EMERGENCY, YOU SHOULD IMMEDIATELYCALL 911 OR YOUR PHYSICIAN.
3. User Content and Feedback
Our Directory may allow you to create, post, store and share content,including messages, text, photos, videos and other materials (collectively,“UserContent”). Except for the license you grant below, you retain all rightsin and to your User Content, as between you and OM Heals. You grant OM Heals aperpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully-paid, andsub-licensable license to use, reproduce, modify, adapt, publish,translate,create derivative works from, distribute, publicly perform and display yourUser Content and any name, username or likeness provided in connection withyour User Content in all media formats and channels now known or laterdeveloped without compensation to you. When you post or otherwise share UserContent on or through our Directory, you understand that your User Content andany associated information (such as your username and date of review) will bevisible to the public. You may not create, post, store or share any UserContent that violates these Terms or for which you do not have all the rightsnecessary to grant us the license described above. Any questions, comments,suggestions, ideas, original or creative materials or other information yousubmit about OM Heals or our Directory (collectively, “Feedback”),is non-confidential and will become the sole property of OM Heals. We will ownexclusive rights, including, without limitation, all intellectual propertyrights, in and to Feedback and will be entitled to the unrestricted use anddissemination of Feedback for any purpose, commercial or otherwise, withoutacknowledgment or compensation to you.
4. Accessing the Directory.
Minimum age: In order to accept these Terms and to access and use our Directoryyou must be at least 18 years of age. If you are between 13 and 18 years of age(or the age of legal majority where you live), you may only access or use our Directoryunder the supervision of a parent or legal guardian who agrees to be bound bythese Terms. If you are accessing or using our Directory on behalf of anotherperson or entity, you represent that you are authorized to accept these Termson that person or entity’s behalf and that the person or entity agrees to beresponsible to us if you or the other person or entity violates these Terms.You hereby affirmatively represent that (a) you are at least 18 years of age;(b) you have the consent of your parent(s) or guardian(s) to access and use theDirectoryif you are under 18 years of age; (c) you have all th eapplicable rights andauthority to grant OM Heals the rights granted herein; and (d) you have read,understood, and agree to be bound by these Terms.
Modification or Suspension of the Directory and right to terminate your use ofthe Directory: We reserve the right, subject to these Terms, to change,suspend, or discontinue any aspect of the Directory, in our sole and absolutediscretion and without notice or liability, including by adding or eliminatingcertain features, removing access to any Content or discontinuing any of ourofferings entirely. Any description of the features of products or Directoryoffered by OM Heals shall not be considered to be a representation by OM Healsthat such features will always be included in such products and Directory. Wealso reserve the right, subject to the Terms, to restrict access to some or allof the Directory, for all users or only for you, without notice or liability.Accordingly, for any reason, and without notice, all or any part of the Directoryand Materials may become unavailable to you at any time and for any period. Forthe avoidance of doubt, we will not be liable if for any reason all or any partof the Directory, Digital Properties or Materials is unavailable at anytime orfor any period.
Errors: We attempt to be as accurate as possible and to eliminateerrors; however, we do not warrant that all Product descriptions, photographs,pricing and other information are accurate, complete, reliable, current orerror-free. In the event of an error, whether on the Directory, in an orderconfirmation, in processing an order or delivering a Product, we reserve theright to correct such error and revise your order accordingly (includingcharging the correct price) or to cancel the order and refund any amountcharged.
5. Prohibited Conduct and Content
You will not violate any applicable law, contract, intellectual propertyor other third-party right or commit a tort, and that you are solelyresponsible for your conduct while accessing or using our Directory. You willnot:
*Engage in any harassing, threatening, intimidating, predatory or stalkingconduct;
*Use our Directory in any manner that could interfere with, disrupt, negativelyaffect or inhibit other users from fully enjoying our Matching Services or that could damage, disable, overburden or impair the functioning ofour Directory in any manner;
*Reverse engineer any aspect of our Directory or do anything that mightdiscover source code or bypass or circumvent measures employed to prevent orlimit access to any part of our Directory;
*Attempt to circumvent any content-filtering techniques we employ or attempt toaccess any feature or area of our Directory that you are not authorized to access;
*Develop or use any third-party applications that interact with our Directorywithout our prior written consent, including any scripts designed to scrape or extract data from our Directory;
*Bypass or ignore instructions contained in our robots.txt file, thatcontrols automated access to portions of our Directory;
*or Use our Directory for any illegal or unauthorized purpose, or engagein, encourage or promote any activity that violates these Terms.
You may also only post or otherwise share User Content that is non-confidentialand you have all necessary rights to disclose. You may not create, post, storeor share any User Content that:
*Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd,suggestive, harassing, threatening, invasive of privacy or publicity rights,abusive, inflammatory or fraudulent;
*Would constitute, encourage or provide instructions for a criminal offense,violate the rights of any party or otherwise create liability or violate anylocal, state, national or international law;
*May infringe any patent, trademark, trade secret, copyright or otherintellectual or proprietary right of any party;
*Contains or depicts any statements, remarks or claims that do not reflect yourhonest views and experiences;
*Impersonates, or misrepresents your affiliation with, any person orentity;
*References or depicts OM Heals or our Directory but fails to disclose a material connection to us, if you have one (for example, if you are an OMHeals employee);
*Contains any unsolicited promotions, political campaigning, advertising orsolicitations;
*Contains any private or personal information of a third party without suchthird party’s consent;
*Contains any viruses, corrupted data or other harmful, disruptive or destructivefiles or content;
*or Is, in our sole judgment, objectionable or that restricts or inhibits anyother person from using or enjoying our Directory, or that may expose OM Heals or others to any harm or liability of any type.
In addition, although we have no obligation to screen, edit or monitor UserContent, we may delete or remove User Content at any time and for anyreason.
6. Limited License; Copyright and Trademark Rights
Limited License and Intellectual Property Rights Our Directory and thetext, graphics, images, photographs, videos, illustrations, trademarks, tradenames, service marks, logos, slogans and other content contained therein(collectively, the “OM Heals Materials”) are owned by or licensed to OM Heals andare protected under both United States and foreign laws. Except as explicitlystated in these Terms, OM Heals and our licensors reserve all rights in and toour Directory and the OM Heals Materials.You are hereby granted a limited,nonexclusive, non transferable, non-sublicensable, revocable license to accessand use our Directory and OM Heals Materials for your own personal use;however, such license is subject to these Terms and does not include any rightto (a) sell, resell or commercially use our Directory or OM Heals Materials;(b) copy, reproduce, distribute, publicly perform or publicly display OM HealsMaterials, except as expressly permitted by us or our licensors; (c) modify theOM HealsMaterials, remove any proprietary rights notices or markings, orotherwise make any derivative uses of our Directory or OM Heals Materials; (d)use any data mining, robots or similar data gathering or extraction methods;and (e)use our Directory or OM Heals Materials other than for their intendedpurposes. Any use of our Directory or OM Heals Materials other than asspecifically authorized herein, without our prior written permission, isstrictly prohibited and will terminate the license granted herein.
Copyright Complaints: We have a policy of limiting access to our Directoryand terminating the access of users who infringe the intellectual propertyrights of others. If you believe that anything on our Directory infringes anycopyright that you own or control, you may notify OM Heals’ Designated Agentvia email at jennifer@om-heals.com.Please see 17U.S.C. §512(c)(3) for therequirements of a proper notification. Also, please note that if you knowinglymisrepresent that any activity or material on our Directory is infringing, youmay to liable to OM Heals for certain costs and damages.
7. Indemnification
To the fullest extent permitted by applicable law, you will indemnify,defend, and hold harmless OM Heals and its shareholders, officers, directors,agents, licensors, suppliers, service providers, employees, partners, andrepresentatives (the “OM Heals Parties”) from and against any and all claims,demands, causes of action, losses, expenses, costs, damages and/or liabilities,including reasonable attorney’s fees and court costs, incurred by the OM HealsParties in any way related to your (a) your use or misuse of our Directory; (b)your User Content or Feedback; (c) your violation of these Terms;(d) yourviolation of any rights of another; (e) violation of any applicable law orregulation; and (f) your submission of inaccurate, untimely, incomplete ormisleading User Content. You agree to promptly notify the Om HealsParties of any third party Claims and pay all fees, costs and expensesassociated with defending such Claims (including but not limited to attorneys’fees). You further agree to cooperate as requested by the OM Heals Parties inthe defense of such claims. You further agree that theOM Heals Parties shallhave control of the defense or settlement of any third party Claims. Youagree that you shall not, in any event, settle any claim or matter on behalf ofOM Heals without the written consent of Om Heals. This indemnificationobligation shall survive the cessation of your use of the Directory.
8. Disclaimer of Warranties
WE PROVIDE THE DIRECTORY ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”BASIS TO THE FULLEST EXTENT PERMISSIBLE BY LAW. THE OM HEALS PARTIES DO NOTREPRESENT OR WARRANT OR ENDORSE, EXPRESSLY OR IMPLICITLY, THAT THE DIRECTORY:(I)ARE RELIABLE OR WILL BE UNINTERRUPTED, (II) WILL BE FREE OF DEFECTS ORERRORS,(III) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE ORSOFTWARE YOUUSE, (IV) WILL BE SECURE AND FREE FROM ANY HARMFUL COMPONENTS, SUCHAS VIRUSES OR OTHER MALWARE, OR (V) WILL CONTAIN MATERIALS THAT ARE ACCURATE,COMPLETE,CORRECT, ADEQUATE, USEFUL, TIMELY OR RELIABLE.THE OM HEALS PARTIESMAKE NO WARRANTIES OF ANY KIND OTHER THAN AS EXPRESSLY SET FORTH HEREIN ANDYOUR USE AND ACCESS OF THE DIRECTORY AND CONTENT IS ENTIRELY AT YOUR OWN RISK.OM HEALS EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED,REGARDING THE DIRECTORYAND CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OFMERCHANTABILITY, SATISFACTORY PURPOSE, OR FITNESS FOR A PARTICULAR PURPOSE. INSTATES AND JURISDICTIONS IN WHICH THE EXCLUSION OF WARRANTY IS PROHIBITED, SUCHEXCLUSIONS SHALL ONLY APPLY TO THE EXTENT PERMITTED.
9. Limitation of Liability
To the fullest extent permitted by applicable law, the OM Heals Partieswill not be liable for any indirect, special, incidental or consequentialdamages of any kind arising out of or in any way related to the access to oruse of the Directory or the purchase of Products through the Directory,including but not limited to any damages caused by or resulting from relianceon any information obtained from the OM Heals Parties and from events beyondthe OM Heals Parties’ reasonable control, even if OM Heals or the other OMHeals Parties have been advised of the possibility of such damages. Somejurisdictions do not allow the exclusion or limitation of incidental orconsequential damages, so the above limitation or exclusion may not apply. Tothe fullest extent permitted by applicable law, the total liability of theOMHeals Parties for any claim arising out of or relating to these Terms, our Directoryor Products purchased through the Directory, regardless of the form of theaction, is limited to the greater of (a) the purchase price of theProduct(s)giving rise to the claim or (b) $100. The limitation of liability set out abovedoes not apply to liability resulting from our fraud, gross negligence orwillful misconduct.If applicable, you hereby waive California Civil CodeSection 1542 in connection with the foregoing, which states: “A general releasedoes not extend to claims that the creditor or releasing party does not know orsuspect to exist in his or her favor at the time of executing the release andthat, if known by him or her, would have materially affected his or hersettlement with the debtor or released party.”
10. Dispute Resolution/Binding Arbitration/Class Action Waiver: Please readthe following section carefully because it requires you to arbitrate certaindisputes and claims with OM Heals and limits the manner in which you can seekrelief from us.
Except for any dispute arising out of or related to a violation of Section5 or disputes in which either party seeks to bring an individual action insmall claims court or seeks injunctive or other equitable relief for thealleged unlawful use of intellectual property, you and OM Heals waive theirrights to a jury trial and to have any dispute arising out of or related tothese Terms, our Directory or products or Directory purchased through our Directoryresolved in court. Instead, all disputes arising out of or to these Terms, our Directoryor products or Directory purchased through our Directory will be resolvedthrough confidential binding arbitration held in San Diego, California beforeand in accordance with the Streamlined Arbitration Rules and Procedures ("Rules")of the Judicial Arbitration and Mediation Directory ("JAMS"),whichare available on the JAMS website andhereby incorporated by reference. You either acknowledge and agree that youhave read and understand the rules of JAMS or waive your opportunity to readthe rules of JAMS and any claim that the rules of JAMS are unfair or should notapply for any reason.
You and OM Heals agree that any dispute arising out of or related to theseTerms, our Directory or products or Directory purchased through our Directoryis personal to you and OM Heals and that any dispute will be resolved solelythrough individual arbitration and will not be brought as a class arbitration,class action, or any other type of representative proceeding. You and OMHeals further agree that any such disputes will also not be consolidated withany other proceedings that involve any claim or controversy of any other party.
You and OM Heals agree that these Terms affect interstate commerce andthat the enforceability of this Section 11 will be substantively andprocedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq.(the"FAA"), to the maximum extent permitted by applicable law. Aslimited by the FAA, theseTerms and the JAMS Rules, the arbitrator will haveexclusive authority to make all procedural and substantive decisions regardingany dispute and to grant any remedy that would otherwise be available in court;provided, however, that the arbitrator does not have the authority to conduct aclass arbitration or a representative action, which is prohibited by theseTerms. The arbitrator may only conduct an individual arbitration and may notconsolidate more than one individual’s claims, preside over any type of classor representative proceeding or preside over any proceeding involving more thanone individual. You and OM Heals agree that for any arbitration you initiate,you will pay the filing fee and OM Heals will pay the remaining JAMS fees andcosts. For any arbitration initiated by OM Heals, OM Heals will pay all JAMSfees and costs.You and OM Heals agree that the state or federal courts of theState of California and the United States sitting in San Diego County haveexclusive jurisdiction over any appeals and the enforcement of an arbitrationaward.
Any claim you may have arising out of or related to these Terms, our Directoryor products or services purchased through our Directory must be filed withinone year after such claim arose; otherwise, your claim is permanently barred,which means that you and OM Heals will not have the right to assert the claim.
You have the right to opt out of binding arbitration within thirty (30)days of the date you first accepted the terms of this Section 11 by emailing usat useromheals@gmail.com . In order to be effective, the opt out notice mustinclude your full name and clearly indicate your intent to opt out of bindingarbitration. By opting out of binding arbitration, you are agreeing to resolveDisputes in accordance with Section 16 of these Terms.
11. General Consent to Electronic Communications
You consent to receive communications from us whether required by law orotherwise, either by e-mail (if you have provided us with your e-mail address),or any other form of communication you have consented to, or by notice postedon www.om-heals.com as determined by usin our sole discretion. You agree that any requirement that a notice,disclosure, agreement, or other communication be sent to you by us inw ritingis satisfied by such electronic communication. We are not responsible for anyautomatic filtering you or your network provider may apply to communications wesend to an e-mail address or other location that you provide to us.Notwithstanding your indicated email marketing preferences, we may send youadministrative emails regarding OM Heals, including, for example, orderconfirmations or information about Directory you have purchased as well asnotices of updates to the Privacy Policy or these Terms if we choose to providesuch notices to you in this manner. We may also contact you via e-mail torespond to a question, comment, or other communication that you may have initiatedwith us, including but not limited to questions related to the Privacy Policyor these Terms, any User Content you provide or in relation to customer serviceissue. Text messages OM Heals may seek your consent to contact you with certainnon-emergency, automated, autodialed, prerecorded, or other telemarketing textmessages. We may contact you using your phone or mobile number with anautomatic telephone dialing system(ATDS). You may opt-out of thesecommunications at any time, and consent to receive marketing text messages isnot required to purchase any products or Directory.
12. Miscellaneous
These Terms constitute the entire agreement between you and OM Healsrelating to your access to and use of our Directory. The failure of OM Heals toexercise or enforce any right or provision of these Terms will not operate as awaiver of such right or provision. The section titles in these Terms are forconvenience only and have no legal or contractual effect. Except as otherwiseprovided herein, these Terms are intended solely for the benefit of the partiesand are not intended to confer third party beneficiary rights upon any otherperson or entity. Our failure to act with respect to a breach of the Terms byyou or others does not constitute a waiver and will not limit our rights withrespect to such breach or any subsequent breaches. The provisions of these Termsare intended to be severable. If for any reason any provision of these Terms isheld invalid or unenforceable in whole or in part by any court of competentjurisdiction, such provision shall, as to such jurisdiction, be ineffective tothe extent of such determination of invalidity or unenforceability withoutaffecting the validity or enforceability thereof in any other manner andwithout affecting the remaining provisions hereof, which shall continue to bein full force and effect.
13. Governing Law and Jurisdiction
These Terms will be governed by and construed in accordance with the lawsof the state of Delaware, without regard to its conflicts of laws principlesand specifically will not be governed by the United Nations Convention oncontracts for the international sale of goods or services. You agree thatjurisdiction and venue in any legal proceeding directly or indirectly arisingout of or relating to the Directory, will be in San Diego County, California,and you hereby consent and submit to the exclusive personal jurisdiction andvenue in San Diego County, California.
14.Contact Us
If you have any questions about these Terms, contact us via email at Jennifer@om-heals.com.
Effective: September 14, 2021
Last updated: September 5th, 2023
TERMS OF USE:
These Terms of Use (“Terms”) apply to your access to and use of the websiteand our products and Directory(collectively, our “Directory”) providedby OM Heals, Inc. (“OM Heals,” “we” or “us” ).
1. Acceptance of the Terms
PLEASE READ THESE TERMS BEFORE USING OUR DIRECTORY AS THEY AFFECT YOURLEGAL RIGHTS AND OBLIGATIONS. BY ACCESSING OR USING OUR DIRECTORY, YOU AGREE TOAND ARE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, INCLUDINGTHE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 11, DONOT ACCESS OR USE OUR DIRECTORY. We reserve the right to change these Termsat any time, without any prior notice to you. Any updates to these Terms willbe posted or linked to from our Digital Properties, including atwww.om-heals.com, and will apply to you prospectively, so you should check backeach time you use our Directory so you are aware of any changes, as they arebinding on you.
2. Medical and Therapeutic Disclaimer
The Directory and contents of the website such as the information, text,graphics, images, video, webinars, data, and any other material (collectively,“Content”) are for general informational purposes only. The Content is notintended to be a substitute for professional medical or therapeutic advice,diagnosis, or treatment. Using or accessing the Directory and/or providingpersonal or medical information to OM Heals does not create a physician-patientor a therapist-patient relationship between you and OM Heals. OM Heals does notprovide medical or therapeutic advice, diagnosis, opinion or treatment. Alwaysseek the advice of your physician, therapist, or other qualified healthprovider with any questions you may have regarding a medical condition. Neverdisregard professional medical advice or delay in seeking it because ofsomething you have read in our Content. Never rely on the Content in place ofseeking professional medical advice. OM Heals does not recommend or endorse anyspecific tests, physicians, products, procedures, opinions, or otherinformation that may be mentioned in the Content. Reliance on any informationprovided by OM Heals or practitioners working with us is solely at your ownrisk. IF YOU BELIEVE YOU HAVE A MEDICAL EMERGENCY, YOU SHOULD IMMEDIATELYCALL 911 OR YOUR PHYSICIAN.
3. User Content and Feedback
Our Directory may allow you to create, post, store and share content,including messages, text, photos, videos and other materials (collectively,“UserContent”). Except for the license you grant below, you retain all rightsin and to your User Content, as between you and OM Heals. You grant OM Heals aperpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully-paid, andsub-licensable license to use, reproduce, modify, adapt, publish,translate,create derivative works from, distribute, publicly perform and display yourUser Content and any name, username or likeness provided in connection withyour User Content in all media formats and channels now known or laterdeveloped without compensation to you. When you post or otherwise share UserContent on or through our Directory, you understand that your User Content andany associated information (such as your username and date of review) will bevisible to the public. You may not create, post, store or share any UserContent that violates these Terms or for which you do not have all the rightsnecessary to grant us the license described above. Any questions, comments,suggestions, ideas, original or creative materials or other information yousubmit about OM Heals or our Directory (collectively, “Feedback”),is non-confidential and will become the sole property of OM Heals. We will ownexclusive rights, including, without limitation, all intellectual propertyrights, in and to Feedback and will be entitled to the unrestricted use anddissemination of Feedback for any purpose, commercial or otherwise, withoutacknowledgment or compensation to you.
4. Accessing the Directory.
Minimum age: In order to accept these Terms and to access and use our Directoryyou must be at least 18 years of age. If you are between 13 and 18 years of age(or the age of legal majority where you live), you may only access or use our Directoryunder the supervision of a parent or legal guardian who agrees to be bound bythese Terms. If you are accessing or using our Directory on behalf of anotherperson or entity, you represent that you are authorized to accept these Termson that person or entity’s behalf and that the person or entity agrees to beresponsible to us if you or the other person or entity violates these Terms.You hereby affirmatively represent that (a) you are at least 18 years of age;(b) you have the consent of your parent(s) or guardian(s) to access and use theDirectoryif you are under 18 years of age; (c) you have all th eapplicable rights andauthority to grant OM Heals the rights granted herein; and (d) you have read,understood, and agree to be bound by these Terms.
Modification or Suspension of the Directory and right to terminate your use ofthe Directory: We reserve the right, subject to these Terms, to change,suspend, or discontinue any aspect of the Directory, in our sole and absolutediscretion and without notice or liability, including by adding or eliminatingcertain features, removing access to any Content or discontinuing any of ourofferings entirely. Any description of the features of products or Directoryoffered by OM Heals shall not be considered to be a representation by OM Healsthat such features will always be included in such products and Directory. Wealso reserve the right, subject to the Terms, to restrict access to some or allof the Directory, for all users or only for you, without notice or liability.Accordingly, for any reason, and without notice, all or any part of the Directoryand Materials may become unavailable to you at any time and for any period. Forthe avoidance of doubt, we will not be liable if for any reason all or any partof the Directory, Digital Properties or Materials is unavailable at anytime orfor any period.
Errors: We attempt to be as accurate as possible and to eliminateerrors; however, we do not warrant that all Product descriptions, photographs,pricing and other information are accurate, complete, reliable, current orerror-free. In the event of an error, whether on the Directory, in an orderconfirmation, in processing an order or delivering a Product, we reserve theright to correct such error and revise your order accordingly (includingcharging the correct price) or to cancel the order and refund any amountcharged.
5. Prohibited Conduct and Content
You will not violate any applicable law, contract, intellectual propertyor other third-party right or commit a tort, and that you are solelyresponsible for your conduct while accessing or using our Directory. You willnot:
*Engage in any harassing, threatening, intimidating, predatory or stalkingconduct;
*Use our Directory in any manner that could interfere with, disrupt, negativelyaffect or inhibit other users from fully enjoying our Matching Services or that could damage, disable, overburden or impair the functioning ofour Directory in any manner;
*Reverse engineer any aspect of our Directory or do anything that mightdiscover source code or bypass or circumvent measures employed to prevent orlimit access to any part of our Directory;
*Attempt to circumvent any content-filtering techniques we employ or attempt toaccess any feature or area of our Directory that you are not authorized to access;
*Develop or use any third-party applications that interact with our Directorywithout our prior written consent, including any scripts designed to scrape or extract data from our Directory;
*Bypass or ignore instructions contained in our robots.txt file, thatcontrols automated access to portions of our Directory;
*or Use our Directory for any illegal or unauthorized purpose, or engagein, encourage or promote any activity that violates these Terms.
You may also only post or otherwise share User Content that is non-confidentialand you have all necessary rights to disclose. You may not create, post, storeor share any User Content that:
*Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd,suggestive, harassing, threatening, invasive of privacy or publicity rights,abusive, inflammatory or fraudulent;
*Would constitute, encourage or provide instructions for a criminal offense,violate the rights of any party or otherwise create liability or violate anylocal, state, national or international law;
*May infringe any patent, trademark, trade secret, copyright or otherintellectual or proprietary right of any party;
*Contains or depicts any statements, remarks or claims that do not reflect yourhonest views and experiences;
*Impersonates, or misrepresents your affiliation with, any person orentity;
*References or depicts OM Heals or our Directory but fails to disclose a material connection to us, if you have one (for example, if you are an OMHeals employee);
*Contains any unsolicited promotions, political campaigning, advertising orsolicitations;
*Contains any private or personal information of a third party without suchthird party’s consent;
*Contains any viruses, corrupted data or other harmful, disruptive or destructivefiles or content;
*or Is, in our sole judgment, objectionable or that restricts or inhibits anyother person from using or enjoying our Directory, or that may expose OM Heals or others to any harm or liability of any type.
In addition, although we have no obligation to screen, edit or monitor UserContent, we may delete or remove User Content at any time and for anyreason.
6. Limited License; Copyright and Trademark Rights
Limited License and Intellectual Property Rights Our Directory and thetext, graphics, images, photographs, videos, illustrations, trademarks, tradenames, service marks, logos, slogans and other content contained therein(collectively, the “OM Heals Materials”) are owned by or licensed to OM Heals andare protected under both United States and foreign laws. Except as explicitlystated in these Terms, OM Heals and our licensors reserve all rights in and toour Directory and the OM Heals Materials.You are hereby granted a limited,nonexclusive, non transferable, non-sublicensable, revocable license to accessand use our Directory and OM Heals Materials for your own personal use;however, such license is subject to these Terms and does not include any rightto (a) sell, resell or commercially use our Directory or OM Heals Materials;(b) copy, reproduce, distribute, publicly perform or publicly display OM HealsMaterials, except as expressly permitted by us or our licensors; (c) modify theOM HealsMaterials, remove any proprietary rights notices or markings, orotherwise make any derivative uses of our Directory or OM Heals Materials; (d)use any data mining, robots or similar data gathering or extraction methods;and (e)use our Directory or OM Heals Materials other than for their intendedpurposes. Any use of our Directory or OM Heals Materials other than asspecifically authorized herein, without our prior written permission, isstrictly prohibited and will terminate the license granted herein.
Copyright Complaints: We have a policy of limiting access to our Directoryand terminating the access of users who infringe the intellectual propertyrights of others. If you believe that anything on our Directory infringes anycopyright that you own or control, you may notify OM Heals’ Designated Agentvia email at jennifer@om-heals.com.Please see 17U.S.C. §512(c)(3) for therequirements of a proper notification. Also, please note that if you knowinglymisrepresent that any activity or material on our Directory is infringing, youmay to liable to OM Heals for certain costs and damages.
7. Indemnification
To the fullest extent permitted by applicable law, you will indemnify,defend, and hold harmless OM Heals and its shareholders, officers, directors,agents, licensors, suppliers, service providers, employees, partners, andrepresentatives (the “OM Heals Parties”) from and against any and all claims,demands, causes of action, losses, expenses, costs, damages and/or liabilities,including reasonable attorney’s fees and court costs, incurred by the OM HealsParties in any way related to your (a) your use or misuse of our Directory; (b)your User Content or Feedback; (c) your violation of these Terms;(d) yourviolation of any rights of another; (e) violation of any applicable law orregulation; and (f) your submission of inaccurate, untimely, incomplete ormisleading User Content. You agree to promptly notify the Om HealsParties of any third party Claims and pay all fees, costs and expensesassociated with defending such Claims (including but not limited to attorneys’fees). You further agree to cooperate as requested by the OM Heals Parties inthe defense of such claims. You further agree that theOM Heals Parties shallhave control of the defense or settlement of any third party Claims. Youagree that you shall not, in any event, settle any claim or matter on behalf ofOM Heals without the written consent of Om Heals. This indemnificationobligation shall survive the cessation of your use of the Directory.
8. Disclaimer of Warranties
WE PROVIDE THE DIRECTORY ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”BASIS TO THE FULLEST EXTENT PERMISSIBLE BY LAW. THE OM HEALS PARTIES DO NOTREPRESENT OR WARRANT OR ENDORSE, EXPRESSLY OR IMPLICITLY, THAT THE DIRECTORY:(I)ARE RELIABLE OR WILL BE UNINTERRUPTED, (II) WILL BE FREE OF DEFECTS ORERRORS,(III) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE ORSOFTWARE YOUUSE, (IV) WILL BE SECURE AND FREE FROM ANY HARMFUL COMPONENTS, SUCHAS VIRUSES OR OTHER MALWARE, OR (V) WILL CONTAIN MATERIALS THAT ARE ACCURATE,COMPLETE,CORRECT, ADEQUATE, USEFUL, TIMELY OR RELIABLE.THE OM HEALS PARTIESMAKE NO WARRANTIES OF ANY KIND OTHER THAN AS EXPRESSLY SET FORTH HEREIN ANDYOUR USE AND ACCESS OF THE DIRECTORY AND CONTENT IS ENTIRELY AT YOUR OWN RISK.OM HEALS EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED,REGARDING THE DIRECTORYAND CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OFMERCHANTABILITY, SATISFACTORY PURPOSE, OR FITNESS FOR A PARTICULAR PURPOSE. INSTATES AND JURISDICTIONS IN WHICH THE EXCLUSION OF WARRANTY IS PROHIBITED, SUCHEXCLUSIONS SHALL ONLY APPLY TO THE EXTENT PERMITTED.
9. Limitation of Liability
To the fullest extent permitted by applicable law, the OM Heals Partieswill not be liable for any indirect, special, incidental or consequentialdamages of any kind arising out of or in any way related to the access to oruse of the Directory or the purchase of Products through the Directory,including but not limited to any damages caused by or resulting from relianceon any information obtained from the OM Heals Parties and from events beyondthe OM Heals Parties’ reasonable control, even if OM Heals or the other OMHeals Parties have been advised of the possibility of such damages. Somejurisdictions do not allow the exclusion or limitation of incidental orconsequential damages, so the above limitation or exclusion may not apply. Tothe fullest extent permitted by applicable law, the total liability of theOMHeals Parties for any claim arising out of or relating to these Terms, our Directoryor Products purchased through the Directory, regardless of the form of theaction, is limited to the greater of (a) the purchase price of theProduct(s)giving rise to the claim or (b) $100. The limitation of liability set out abovedoes not apply to liability resulting from our fraud, gross negligence orwillful misconduct.If applicable, you hereby waive California Civil CodeSection 1542 in connection with the foregoing, which states: “A general releasedoes not extend to claims that the creditor or releasing party does not know orsuspect to exist in his or her favor at the time of executing the release andthat, if known by him or her, would have materially affected his or hersettlement with the debtor or released party.”
10. Dispute Resolution/Binding Arbitration/Class Action Waiver: Please readthe following section carefully because it requires you to arbitrate certaindisputes and claims with OM Heals and limits the manner in which you can seekrelief from us.
Except for any dispute arising out of or related to a violation of Section5 or disputes in which either party seeks to bring an individual action insmall claims court or seeks injunctive or other equitable relief for thealleged unlawful use of intellectual property, you and OM Heals waive theirrights to a jury trial and to have any dispute arising out of or related tothese Terms, our Directory or products or Directory purchased through our Directoryresolved in court. Instead, all disputes arising out of or to these Terms, our Directoryor products or Directory purchased through our Directory will be resolvedthrough confidential binding arbitration held in San Diego, California beforeand in accordance with the Streamlined Arbitration Rules and Procedures ("Rules")of the Judicial Arbitration and Mediation Directory ("JAMS"),whichare available on the JAMS website andhereby incorporated by reference. You either acknowledge and agree that youhave read and understand the rules of JAMS or waive your opportunity to readthe rules of JAMS and any claim that the rules of JAMS are unfair or should notapply for any reason.
You and OM Heals agree that any dispute arising out of or related to theseTerms, our Directory or products or Directory purchased through our Directoryis personal to you and OM Heals and that any dispute will be resolved solelythrough individual arbitration and will not be brought as a class arbitration,class action, or any other type of representative proceeding. You and OMHeals further agree that any such disputes will also not be consolidated withany other proceedings that involve any claim or controversy of any other party.
You and OM Heals agree that these Terms affect interstate commerce andthat the enforceability of this Section 11 will be substantively andprocedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq.(the"FAA"), to the maximum extent permitted by applicable law. Aslimited by the FAA, theseTerms and the JAMS Rules, the arbitrator will haveexclusive authority to make all procedural and substantive decisions regardingany dispute and to grant any remedy that would otherwise be available in court;provided, however, that the arbitrator does not have the authority to conduct aclass arbitration or a representative action, which is prohibited by theseTerms. The arbitrator may only conduct an individual arbitration and may notconsolidate more than one individual’s claims, preside over any type of classor representative proceeding or preside over any proceeding involving more thanone individual. You and OM Heals agree that for any arbitration you initiate,you will pay the filing fee and OM Heals will pay the remaining JAMS fees andcosts. For any arbitration initiated by OM Heals, OM Heals will pay all JAMSfees and costs.You and OM Heals agree that the state or federal courts of theState of California and the United States sitting in San Diego County haveexclusive jurisdiction over any appeals and the enforcement of an arbitrationaward.
Any claim you may have arising out of or related to these Terms, our Directoryor products or services purchased through our Directory must be filed withinone year after such claim arose; otherwise, your claim is permanently barred,which means that you and OM Heals will not have the right to assert the claim.
You have the right to opt out of binding arbitration within thirty (30)days of the date you first accepted the terms of this Section 11 by emailing usat useromheals@gmail.com . In order to be effective, the opt out notice mustinclude your full name and clearly indicate your intent to opt out of bindingarbitration. By opting out of binding arbitration, you are agreeing to resolveDisputes in accordance with Section 16 of these Terms.
11. General Consent to Electronic Communications
You consent to receive communications from us whether required by law orotherwise, either by e-mail (if you have provided us with your e-mail address),or any other form of communication you have consented to, or by notice postedon www.om-heals.com as determined by usin our sole discretion. You agree that any requirement that a notice,disclosure, agreement, or other communication be sent to you by us inw ritingis satisfied by such electronic communication. We are not responsible for anyautomatic filtering you or your network provider may apply to communications wesend to an e-mail address or other location that you provide to us.Notwithstanding your indicated email marketing preferences, we may send youadministrative emails regarding OM Heals, including, for example, orderconfirmations or information about Directory you have purchased as well asnotices of updates to the Privacy Policy or these Terms if we choose to providesuch notices to you in this manner. We may also contact you via e-mail torespond to a question, comment, or other communication that you may have initiatedwith us, including but not limited to questions related to the Privacy Policyor these Terms, any User Content you provide or in relation to customer serviceissue. Text messages OM Heals may seek your consent to contact you with certainnon-emergency, automated, autodialed, prerecorded, or other telemarketing textmessages. We may contact you using your phone or mobile number with anautomatic telephone dialing system(ATDS). You may opt-out of thesecommunications at any time, and consent to receive marketing text messages isnot required to purchase any products or Directory.
12. Miscellaneous
These Terms constitute the entire agreement between you and OM Healsrelating to your access to and use of our Directory. The failure of OM Heals toexercise or enforce any right or provision of these Terms will not operate as awaiver of such right or provision. The section titles in these Terms are forconvenience only and have no legal or contractual effect. Except as otherwiseprovided herein, these Terms are intended solely for the benefit of the partiesand are not intended to confer third party beneficiary rights upon any otherperson or entity. Our failure to act with respect to a breach of the Terms byyou or others does not constitute a waiver and will not limit our rights withrespect to such breach or any subsequent breaches. The provisions of these Termsare intended to be severable. If for any reason any provision of these Terms isheld invalid or unenforceable in whole or in part by any court of competentjurisdiction, such provision shall, as to such jurisdiction, be ineffective tothe extent of such determination of invalidity or unenforceability withoutaffecting the validity or enforceability thereof in any other manner andwithout affecting the remaining provisions hereof, which shall continue to bein full force and effect.
13. Governing Law and Jurisdiction
These Terms will be governed by and construed in accordance with the lawsof the state of Delaware, without regard to its conflicts of laws principlesand specifically will not be governed by the United Nations Convention oncontracts for the international sale of goods or services. You agree thatjurisdiction and venue in any legal proceeding directly or indirectly arisingout of or relating to the Directory, will be in San Diego County, California,and you hereby consent and submit to the exclusive personal jurisdiction andvenue in San Diego County, California.
14.Contact Us
If you have any questions about these Terms, contact us via email at Jennifer@om-heals.com.
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