HEALTHSCREEN & HEALTHYVISITOR SERVICE CUSTOMS
Effective Date: October 12, 2020
Lake Michigan Mailers, Inc. d/b/a Marana Group ("Marana Group", "we", "our", "us") offers its platforms "HealthScreen" and "HealthyVisitor" for COVID-19 screening as recommended by the Centers for Disease Control and Prevention and/or local health authorities. HealthScreen allows employers to manage mobile communication with staff and personnel to conduct daily COVID-19 screening and HealthyVisitor allows businesses to maintain a digital log of employees, independent contractors, customers, vendors, and other visitors who visit a business’s facility or building. The following service customs ("Service Customs") represent a legal agreement and govern all use of the HealthScreen Services (as defined in Section 2) and the HealthyVisitor Services (as defined in Section 3). Together, the HealthScreen Services and the HealthyVisitor Services shall be referred to as the "Services." Please review these Service Customs as they govern your use of the Services. BY ACCESSING, BROWSING, OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE SERVICE CUSTOMS, INCLUDING, WITHOUT LIMITATION, BINDING ARBITRATION AND WILL COMPLY WITH ALL APPLICABLE LAWS. IF YOU DO NOT AGREE THEN PLEASE DO NOT USE OR ACCESS THE SERVICES, SITE OR PORTAL. WE WILL DETERMINE YOUR COMPLIANCE WITH THESE SERVICE CUSTOMS IN OUR SOLE DISCRETION AND OUR DECISION WILL BE FINAL AND BINDING. If you choose to access the Services, Site or Portal from another location, you do so on your own initiative and are responsible for compliance with all applicable laws.
1. SERVICES ONBOARDING: QUESTIONNAIRE
The Services may contain links to third party websites or example questionnaires that are not owned or controlled by Marana Group. Specifically, at the beginning of your relationship with us, we may present to you sample COVID 19 screening questionnaires compiled from guidelines provided by the Centers for Disease Control and Prevention ("CDC") and/or local health authorities as examples of the types of screening questionnaires which are being recommended healthcare experts at such time. Such sample questionnaires are provided to you for your convenience as you develop your own questionnaire (your "Questionnaire") to use with Recipients of the HealthScreen Services or Participants of the HealthyVisitor Services. Marana Group makes no representations or warranties regarding any websites, information, COVID-19 screen questionnaires, or content that may be accessible through the Services that is not maintained, controlled or created by Marana Group. Further, Marana Group assumes no responsibility for updating the Questionnaire based upon updated guidelines from the CDC, local health authorities, or any other source. You may elect to update your Questionnaire by providing written notice to Marana Group, and Marana Group will update such Questionnaire within a commercially reasonable time period. Marana Group may, in its sole discretion, provide you with updated samples of COVID-19 screening questionnaires from time to time for your convenience but Marana Group shall have no obligation or liability relating to providing updated samples. In no event shall any reference to any non- Marana Group site, product or service be construed as an approval or endorsement by Marana Group of such site, product or service. By using the Services, you expressly relieve Marana Group from any and all liability arising from your use of the Questionnaire.
2. HEALTHSCREEN SERVICES
Marana Group offers the following services as part of the HealthScreen platform: (1) the daily COVID-19 screening questionnaire software tools (the "HealthScreen Tools") to utilize your own Questionnaire; (2) our portal to which these Service Customs apply (the "Portal"); and/or (3) any of the services offered by Marana Group made available through the Site or the Portal (together, with the Site and the Portal, the "HealthScreen Services"). We offer the HealthScreen Tools to you in order for you to conduct a daily screening of your employees and/or other personnel (the "Recipients"), via mobile applications such as SMS, using the Questionnaire which you direct us to use. Our HealthScreen Services, and your Questionnaire using the HealthScreen Tools, are only available to be used with Recipients who are at least 18 years of age or who have provided written consent of the Recipient’s parent or other legal guardian if the Recipient is not 18 years of age or older.
In using the Services, you represent and warrant that:
- your Recipients have granted you express consent to send them messages of the type of the Questionnaire; and
- the Recipients are U.S. citizen of at least 18 years of age and/or have provided written consent of the Recipient’s parent or other legal guardian if the Recipient is not 18 years of age or older.
If for any reason Marana Group suspects that your representations regarding the Recipients are not accurate, Marana Group reserves the right to request a written explanation from you, the client, including the method of collecting the subscriber’s phone numbers, a guarantee of their ages, and a guarantee signed by you that all of the people on your Recipient list have agreed to receive text messages from you with the format and content of the Questionnaire. Marana Group reserves the right to take any action that it deems appropriate in the case of non-compliance, including the termination of your account. You acknowledge that Marana Group delivers SMS messages via major telecommunications companies and mobile network providers and can therefore only influence the delivery transmission of SMS messages within the technical constraints imposed by such providers. SMS messages submitted via the Internet will be transferred to the addressed mobile recipients in due course, provided that the recipient’s phone is switched on and located in an area covered by his or her subscribed mobile network provider. You acknowledge that, depending on the Recipient’s mobile provider service, it may not be possible to transmit the SMS message to the Recipient successfully. Marana Group neither claims nor guarantees either availability or performance of this service. While Marana Group makes every effort to deliver the message promptly, Marana Group accepts no liability for transmission delays or SMS message failures. You agree that your Questionnaire for the HealthScreen Services will include clear opt-out/unsubscribe information on your messages when required to do so by any applicable law or regulation and otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, if applicable to your messages.
3. HEALTHYVISITOR SERVICES
Marana Group offers the following services as part of the HealthyVisitor platform: (1) the COVID-19 screening questionnaire software tools (the "HealthyVisitor Tools") you may use in conjunction with your own policies regarding access to your business by Participants (defined below), and (2) any of the services offered by Marana Group made available to maintain the digital log of telephone numbers and telephone keys for Participants who have responded to the Questionnaire you designate to be used on the HealthyVisitor Tools (such services together, with the HealthyVisitor Tools, the "HealthyVisitor Services"). We offer the HealthyVisitor Tools to you in order for you to conduct a screening of your employees, independent contractors, customers, vendors, and other visitors who seek access to your premises (the "Participants"), via mobile applications such as SMS, using the COVID-19 screening questionnaire which you direct us to use. Our Services, and your Questionnaire using the HealthyVisitor Tools, are only available to be used with Participants who are at least 18 years of age or who have provided written consent of the Participant’s parent or other legal guardian if the Participant is not 18 years of age or older. The detailed information obtained from Participants who use the HealthyVisitor Questionnaire reported to you on a daily basis. Marana Group will only maintain the detailed responses from your Participants for a 24-hour period. After such time period, Marana Group will destroy individual responses, and will only maintain the name, mobile phone number, mobile phone keycode, and the date and time of each Participant’s completion of the Questionnaire in its records for a 21-day rolling period following each Participant’s completion of the Questionnaire. In the event relevant governmental authorities and/or contract tracers require the detailed responses to be provided in accordance with any law or regulation, you expressly acknowledge that you shall maintain the detailed information which would be responsive to such requests and that Marana Group shall have no obligation to maintain or provide such responses on your behalf. If you are a covered entity as defined by the Health Insurance Portability and Accountability Act of 1996, you represent and warrant that you have entered into a Business Associate Agreement with Marana Group prior to using the HealthyVisitor Services.
4. ALL SERVICES
You understand and agree that the Services are provided to you on an "AS-IS" basis and that Marana Group assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to the Service and that access and subsequent usage may involve third-party fees (such as Internet access to use the Service or data charges from your wireless provider relating to any SMS communication). If you wish to use Marana Group’s Services, you will be requested to provide Marana Group and/or its third-party service providers with certain information, including, without limitation, information about your identity, e-mail address, physical address, and such similar information. Additionally, if you are utilizing the HealthyScreen Services, you will be requested to provide similar types of information for each Recipient in order for Marana Group to provide the Services, and if you are utilizing the HealthyVisitor Services, your Participants will be requested to provide similar types of information to Marana Group in order to provide the relevant Services. We may (or through an analytic service or other third party provider), either incidentally during the course of business or with your permission, also access your name, company name, credit card or banking information, email address, mobile device number, collect other third party data about you, and collect other information as we may request from time to time, (collectively, the "Personal Information"). The information collected by analytic services, including, without limitation Personal Information, is anonymous and aggregated. We reserve the right to use this information for any lawful business purpose. If you are agreeing to these Service Customs on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the Service Customs and, in such event, "you" and "your" refer to that company or other entity.
5. PRIVACY NOTICE
Marana Group does not claim ownership of any of the data, documents, or images processed or created on behalf of its customers or any participant in the Services. Moreover, data is never compiled, rented, or shared with any third party without your written consent. By utilizing HealthScreen Services, you represent that you have obtained consent of each of your Recipients for us to process any Personal Information each provides in conjunction with our Services.
6. QUESTIONNAIRE CONTENT & RESPONSES
Marana Group reserves the right to change, condense or delete any Questionnaires or Questionnaire questions that Marana Group deems, in its sole discretion, to violate any provision of these Service Customs or applicable law. Marana Group does not guarantee that you will have any recourse through Marana Group to edit or delete the Questionnaire you have submitted to be used with your Recipients and/or Participants. Marana Group reserves the right to remove, modify or to refuse to post any Questionnaire for any reason. You acknowledge that you, not Marana Group, are solely responsible for the Questionnaire and the consequences of posting or publishing the same. Marana Group has taken reasonable steps to ensure the confidentiality of information collected in the Services. However, unexpected changes in technology may be used by unauthorized third-parties to intercept confidential information and Marana Group cannot be responsible should confidential information be intercepted and subsequently used by an unintended recipient. We are not responsible for, and do not endorse, Content posted by any other person. Accordingly, we may not be held liable, directly or indirectly, for any loss or damage caused to you in connection with any Content posted by another member.
7. USE OF AND REQUIREMENTS TO USE THE SERVICES
In using the Services, you agree that:
- you accept and agree to these Service Customs;
- you will register an account with us on the Site if you choose to access the Portal;
- you are a U.S. citizen of at least 18 years of age and/or a parent or legal guardian has entered agreed to these Service Customs on your behalf;
- your use and your representatives use of the Services shall comply with all applicable laws, including federal, state, and local laws, the laws of your jurisdiction, and laws regarding the transmission of technical data, and specifically including the US Foreign Corrupt Practices Act and any other similar applicable law;
- you will not modify, translate, disassemble, reverse engineer any portion of the Services, or otherwise seek to obtain the source code of the Services or HealthScreen Tools;
- you will not launch any automated system, including without limitation, "robots," "spiders," "offline readers," etc., that accesses the Services in a manner that sends more request messages to the Marana Group servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser;
- you will neither collect or harvest any personally identifiable information, including e-mail addresses, from the Services, nor use the communication systems provided by the Services for any commercial solicitation purposes;
- you will not solicit, for commercial purposes, any users of the Services;
- you will not create or transmit unwanted electronic communications such as "spam" to other users or members of the Services or otherwise interfere with other user’s or member’s enjoyment of the Services;
- you will not transmit any viruses, worms, defects, Trojan horses or other items of a destructive nature;
- you will not use the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including that are deemed threatening or obscene;
- you will not use any device, software or routine that interferes with the proper working of the Services;
- you will not use any device, software, or other instrumentality to disrupt, damage or interfere with or attempt to disrupt, damage or interfere with the proper functioning of the Services;
- you will not to violate or attempt to violate the security of this Services, including, without limitation, (i) logging onto an account that you are not authorized to access; (ii) attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the Services, overloading, "flooding," "spamming," "mail bombing" or "crashing"; or (iii) attempt to transmit any "virus", "Trojan horse" or other software destruction or disruption device; and
- you will not intentionally or unintentionally violate any applicable international, federal, state or local law, including but not limited to any regulations applicable to your use of the Services.
8. OWNERSHIP AND USE RESTRICTIONS
You are authorized to use the Services for your business’s COVID-19 screening process, and all other uses are prohibited. For clarity, you are not permitted to use the Services to sell third-party products or services. You agree neither to use the Services to act on behalf or for the benefit of a third-party, nor to allow a third-party to have access to your username or password in order to use the Services. Marana Group is solely a facilitator of the message traffic and web-based responses and has no visibility into or control over individual messages as they are transmitted through Marana Group’s third-party platform and Marana Group has no responsibility or liability with respect to the content of any individual message sent to your Recipients and/or Participants or the content of any response from your Recipients and/or Participants. You are solely responsible for any and all activity that occurs on the Platform from your account and mobile device (if applicable), and you must keep your password and mobile device secure. Except as otherwise required by applicable law, you are responsible for all transactions and other activities authorized or performed using your username and password or mobile device, whether authorized or unauthorized by you. Except as otherwise expressly stated in these Service Customs or required by applicable law, we are not responsible for any losses arising out of the loss or theft of your Personal Information or your Recipients’ and/or Participants’ Personal Information on your mobile device or from unauthorized or fraudulent transactions associated with your account. If you suspect or become aware of any unauthorized activity or access to your username, password, or mobile device, or if your mobile device is stolen or lost, you must contact us immediately at firstname.lastname@example.org.
9. GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that Marana Group may establish general practices and limits concerning use of the Service but that Marana Group has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Service.
10. NO MEDICAL ADVICE AND NO PROVIDER/PATIENT RELATIONSHIP
You understand and agree that the Services are made available to you as a way for you to gather general information from your Recipients and/or Participants and that it is not intended to be a substitute for professional medical advice, diagnosis, or treatment. The information provided to you is not intended to be a substitute for your consultation with health care professionals or public health experts. Always seek the advice of qualified health providers and/or public health experts and/or legal counsel in determining your Questionnaire and in determining your actions in response to Recipient and/or Participants responses to the Questionnaire.
11. YOUR ACCOUNT
You may be required to create an account and specify a password in order to use the Services or features of the Services. You are solely responsible for selecting the password of your choice. To create an account, you must be at least 18 years old and you must provide truthful, accurate, and complete information about yourself. Do not try to and do not impersonate anyone else when you create your account. If your information changes at any time, please update your account to reflect those changes. You agree to update such information to keep it true and accurate. Marana Group is not responsible or liable for any inaccurate information you provide. You will be asked to select a password upon creation of an account. Select a password that would be difficult to guess, and change it regularly as an added precaution. You agree not to share your password or share access to your account. You agree that you are responsible for activities that occur under your account. You agree to notify us immediately of unauthorized use of your password or account. We reserve the right to take such action in our discretion to help ensure the security of the Services, including, without limitation, terminating an account. Notwithstanding the above, we may rely on the authority of anyone accessing your account or using your password, and in no event, and under no circumstances, shall we be held liable to you for any liabilities or damages arising out of (i) any action or inaction of Marana Group under this provision or (ii) any compromise of the confidentiality of your account or password or any unauthorized access to your account or use of your password except to the extent such compromise, access or use is caused solely by Marana Group’s breach of the express terms of these Service Customs, as proved by clear and convincing evidence. You may not use anyone else’s account at any time.
These Service Customs are effective until terminated by either party. Without limiting the foregoing, we shall have the right to immediately terminate your account or your access to the Services in the event of any conduct by you which we, in our sole discretion, consider to be unacceptable, or in the event of any breach by you of these Service Customs. You may stop using the Site, Portal, or any of the services offered by Marana Group made available through the Site or the Portal, and terminate the Service Customs at any time by contacting us at 800-653-3121 and providing sufficient information for us to verify your identity. Your termination of these Service Customs will not affect any of our rights or your obligations arising under these Service Customs prior to termination. Upon termination of these Service Customs, you shall destroy all HealthScreen Tools and HealthyVisitor Tools and any other information obtained from the Services and all related documentation thereof, whether made under the Service Customs or otherwise. The Service Customs will terminate immediately without notice from Marana Group if in Marana Group’s sole discretion you fail to comply with any provision of the Service Customs, if we are required to do so by law, or if we no longer make the Services available for any reason or no reason.. Provisions of these Service Customs that, by their nature, should survive termination of these Service Customs will survive termination of these Service Customs.
13. TEXT MESSAGING AND ELECTRONIC COMMUNICATIONS
You represent and warrant that all communications you cause to be sent through the Services shall at all times comply with all applicable local, state and federal laws and regulations, including, but not limited to, the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the CAN-SPAM Act, and all other laws and regulations concerning privacy, telemarketing, and the sending of SMS text messages. To the extent permitted by applicable law, you consent to use electronic signatures and to electronically receive all records, notices, statements, communications, and other items for all services provided to you under these Service Customs and in connection with your relationship with us (collectively, "Communications") that we may otherwise be required to send or provide you in paper form (e.g., by mail). By accepting and agreeing to these Service Customs electronically, you represent that: (1) you have read and understand this consent to use electronic signatures and to receive Communications electronically; (2) you satisfy the minimum hardware and software requirements specified below; and (3) your consent will remain in effect until you withdraw your consent as specified below. In order to ensure that we are able to provide Communications to you electronically, you must notify us of any change in your email address and your mobile device number or other text message address by updating your profile on the Site or Portal. Your failure to do so will result in a failure to receive Communications and Marana Group will not be responsible or liable to you for any such failures for you to receive such Communications. In order to access and retain Communications provided to you electronically, you must have: (1) a valid e-mail address; (2) a computer or other mobile device (such as a tablet or smart phone) that operates on a platform like Windows or macOS; (3) a connection to the Internet; (4) software that will connect you to the Internet and the Portal and Site; (5) a computer or device and an operating system capable of supporting all of the above; (6) a printer to print out and save Communications in paper form or electronic storage to retain Communications in an electronic form. "Current Version" means a version of the software that is currently being supported by its publisher.
14. YOU ARE THE CURRENT SUBSCRIBER OR CUSTOMARY USER OF THE MOBILE PHONE NUMBER YOU PROVIDED TO MARANA GROUP
Message and data rates may apply. You agree that if the mobile telephone number you provide at any time becomes reassigned, terminated or otherwise no longer your current mobile telephone number, you will PROMPTLY NOTIFY Marana Group of any such reassignment or termination by calling 800-653-3121 or by sending an email to email@example.com. All charges are billed by and payable to your mobile service provider. Marana Group does not charge for sending or receiving text messages. Data obtained from you in connection with the Services may include your mobile phone number, your carrier's name, your opt-out status, and the date, time, and content of your messages. We may use this information to contact you and to provide you with the Services. You acknowledge that any text messages you receive from Marana Group are distributed via third-party mobile network providers. As a result, Marana Group cannot control certain factors relating to message delivery. You further acknowledge that neither Marana Group nor your wireless carrier is liable for delayed or undelivered text messages.
15. USER CONDUCT GUIDELINES
Do not use the Services in a way that violates any laws, infringes on anyone’s rights, is offensive, or interferes with the Services or any features on the Services (including any technological measures we employ to enforce these Service Customs). If we (in our sole discretion) determine that you have acted inappropriately, we reserve the right to take down Content, terminate your account, prohibit you from using the Services, and take appropriate legal actions. Using our Services does not give you ownership of any intellectual property rights to the HealthScreen Tools, HealthyVisitor Tools, or any other content you access, including, without limitation the Content of others. You may not use any content from our Services unless you obtain permission from us or its owner, or unless you are otherwise permitted by law. When you use the Services or send communications to us through the Services, you are communicating with us electronically. You consent to receive electronically any communications related to your use of the Services. We may communicate with you by email or by posting notices on the Services. You agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing. All notices from us intended for receipt by you shall be deemed delivered and effective when sent to the email address you provide to us. Please note that by submitting Content, creating a user account or otherwise providing us with your email address, postal address or phone number, you are agreeing that we or our agents may contact you at that address or number.
We maintain physical, electronic, and procedural safeguards and personnel policies, consistent with generally accepted industry standards that are designed to guard the Services, our systems, and Content provided by our users.
17. NOTICE FOR CALIFORNIA RESIDENTS
The Services are not intended for use in California.
18. CROSS-BORDER APPLICATION
The Services are intended to be made available only to individuals in the United States, and the information on the Site or Portal is only for you. You may not use the Services and may not accept these Service Customs if you are a person barred from using the Services under the laws of the United States or other countries including the country in which you are resident or from which you use the Services.
19. THIRD-PARTY BENEFICIARY; ADDITIONAL TERMS
You agree that our third-party providers are third-party beneficiaries of the applicable provisions of these Service Customs, with all rights to enforce such provisions as if such service providers were a party to these Service Customs. In conjunction with your access or use of the Services, you may be subject to additional terms, rules, policies, and conditions that are posted on the Site or Portal (the "Additional Terms"), which are hereby incorporated by reference into these Service Customs. In the event of a conflict between any Additional Terms and these Service Customs, these Service Customs will control.
You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (1) the Questionnaire that you direct us to use; (2) use of the Services; (3) a breach of these Service Customs; (4) any breach of your representations and warranties set forth in these Service Customs; (5) your violation of the rights of a third party, including but not limited to intellectual property rights; or (6) any overt harmful act toward any other user of the Services with whom you connected via the Services. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
21. LIMITATIONS OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MARANA GROUP SHALL NOT BE LIABLE FOR (1) THE PERFORMANCE OF THE SERVICES OR THE INABILITY TO USE THE SERVICES; (2) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE AMOUNT PAID FOR THE SERVICES; (3) ANY EVENT BEYOND OUR REASONABLE CONTROL; OR (4) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF THE SERVICES OR ANY THIRD PARTY’S USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, COMPUTER FAILURE, OR THE VIOLATION OF YOUR RIGHTS BY ANY THIRD PARTY, EVEN IF MARANA GROUP HAS BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED (COLLECTIVELY, "DAMAGES"). THIS DISCLAIMER OF LIABILITY FOR DAMAGES INCLUDES, BUT IS NOT LIMITED TO DAMAGES FOR (1) LOSS OF USE, GOODWILL, DATA, OPPORTUNITY, OR PROFITS, OR COST OF PROCURING SUBSTITUTE SERVICES; (2) THE TRANSMISSION OF ANY VIRUSES, DATA OR HARMFUL CODE THAT MAY AFFECT YOUR EQUIPMENT OR ANYONE ELSE’S EQUIPMENT; (3) ANY INCOMPATIBILITY BETWEEN THE SERVICE’S FILES AND YOUR BROWSER OR OTHER WEBSITE ACCESSING PROGRAM, (4) ANY FAILURE OF ANY ELECTRONIC OR TELEPHONE EQUIPMENT, COMMUNICATION OR CONNECTION LINES, UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, OR ANY FORCE MAJEURE, ALL ARISING OUT OF OR IN CONNECTION WITH THE USE, COPYING, OR DISPLAY OF THE CONTENT ON THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES; AS A RESULT, THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IN WHOLE OR IN PART AND THE FOREGOING PARAGRAPH SHALL NOT APPLY TO A RESIDENT OF NEW JERSEY TO THE EXTENT DAMAGES TO SUCH NEW JERSEY RESIDENT ARE THE RESULT OF MARANA GROUP’S NEGLIGENT, FRAUDULENT, OR RECKLESS ACT(S) OR INTENTIONAL MISCONDUCT. IF THERE IS A DISPUTE BETWEEN USERS OF THE SERVICES, OR BETWEEN USERS AND ANY THIRD PARTY, YOU AGREE THAT MARANA GROUP IS UNDER NO OBLIGATION TO BECOME INVOLVED. IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE OTHER USERS OR ANY THIRD PARTY, YOU RELEASE MARANA GROUP, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND SUCCESSORS FROM CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO SUCH DISPUTES AND/OR OUR SERVICES (INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH ANY REVIEWS POSTED ABOUT YOU OR THIRD-PARTY PROVIDERS). IF YOU ARE A CALIFORNIA RESIDENT, YOU SHALL AND HEREBY DO WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
22. OUR WARRANTIES AND DISCLAIMERS
We provide our Services using a commercially reasonable level of care and promise to do our best to make sure you enjoy the Services. But there are certain things that we don’t promise about our Services. OTHER THAN AS EXPRESSLY SET OUT IN THESE SERVICE CUSTOMS, NEITHER MARANA GROUP NOR ITS AGENTS OR THIRD PARTY SERVICE PROVIDERS MAKE ANY SPECIFIC PROMISES ABOUT THE SERVICES, THE CONTENT OF THE SITE, AND THE MARANA GROUP CONTENT. FOR EXAMPLE, WE DON’T MAKE ANY COMMITMENTS ABOUT THE CURRENTNESS OF YOUR QUESTIONNAIRE, THE SPECIFIC FUNCTION OF THE SERVICES, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE PROVIDE THE SERVICES "AS IS". SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, WARRANTIES OR CONDITIONS OF TITLE, FITNESS FOR A PARTICULAR PURPOSE, SECURITY AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL SUCH WARRANTIES. ALTHOUGH MARANA GROUP BELIEVES THE CONTENT TO BE ACCURATE, COMPLETE, AND CURRENT AS PROVIDED BY YOU AND YOUR RECIPIENTS AND/OR PARTICIPANTS, MARANA GROUP DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE ON THE SERVICES IS ACCURATE, COMPLETE, OR CURRENT. MARANA GROUP DOES NOT WARRANT THAT THE SERVICES, DESCRIPTIONS, INFORMATION OR CONTENT INCLUDED ON THE SERVICES WILL BE AS REPRESENTED BY THIRD-PARTY PROVIDERS, WILL BE FREE OF DEFECTS OR LAWFUL TO SELL, OR WILL BE SATISFACTORY TO YOU, OR THAT THIRD-PARTY PROVIDERS WILL PERFORM AS PROMISED. WITHOUT LIMITING THE FOREGOING, WE AND OUR THIRD-PARTY SERVICE PROVIDERS MAKE NO WARRANTY THAT (1) THE SERVICES WILL MEET YOUR REQUIREMENTS, (2) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (3) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR (4) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS. The Questionnaire may be or may become out of date and Marana Group makes no commitment to update the Questionnaire without your express directions. Your use of the Services is at your sole discretion and risk. Any HealthScreen Tools, HealthyVisitor Tools, or other material downloaded or otherwise obtained through the Services is done at your own discretion and risk, and you are solely responsible for any damage to your computer system or loss of data that results from the download of any such material.
23. DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
If the Parties are unable to resolve a any controversy or claim arising out of or relating to the Services, use of the Services, or these Service Customs (each a "Dispute") through informal negotiations, you and Marana Group agree that the Dispute (except those Disputes expressly excluded below) shall be settled by binding arbitration to be held in Kalamazoo County, Michigan, in accordance with the rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. The arbitrator shall apply Michigan law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law. If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal (other than that claims will not be arbitrated on a class or representative basis), or otherwise conflicts with the rules and procedures established by the American Arbitration Association, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the portion that is deemed invalid, unenforceable or illegal is that claims will not be arbitrated on a class or representative basis, then the entirety of this arbitration provision shall be null and void, and neither you nor Marana Group shall be entitled to arbitrate their dispute. BY AGREEING TO THE ARBITRATION OF DISPUTES AS SET FORTH IN THESE SERVICE CUSTOMS, YOU AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND LIMITING YOUR RIGHT TO APPEAL AND YOU UNDERSTAND THAT YOU ARE WAIVING YOUR RIGHTS TO OTHER AVAILABLE RESOLUTION PROCESSES, SUCH AS A COURT ACTION. DO NOT USE THE SERVICES IF YOU DO NOT AGREE TO THE FOREGOING BINDING ARBITRATION PROVISIONS.
Class Action Waiver
The parties agree to bring any dispute in arbitration only on their own behalf, and not on a class or collective actions basis. Accordingly:
There will be no right or authority for any dispute to be brought, heard or arbitrated as a class or collective action ("Class Action Waiver"). The Class Action Waiver shall not be severable from this Arbitration Agreement in any case in which: (a) the dispute is filed as a class and/or collective action and (b) a civil court of competent jurisdiction (subject to appeals if any to an appellate court) finds the Class Action Waiver is unenforceable. In such instances, the class and/or collective action must be litigated in a civil court of competent jurisdiction.
Notwithstanding any other clause or language in these Service Customs and/or any rules or procedures that might otherwise apply by virtue of these Service Customs or by virtue of any arbitration organization rules or procedures that now apply or any amendments and/or modifications to those rules, any claim that the Class Action Waiver or any portion of the Class Action Waiver, is unenforceable, inapplicable, unconscionable, or void or voidable, shall be determined only by a court of competent jurisdiction and not by an arbitrator.
The Class Action Waiver and any other provision of this Arbitration Section shall be severable in any case in which the dispute is filed as an individual (non-class and non-collective) action and severance is necessary to ensure that the action proceeds in arbitration.
24. COPYRIGHT AND TRADEMARKS
The information contained on the Services, including all text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein (collectively, the "Marana Group Content") are copyrights, trademarks, trade dress or other intellectual property owned by, controlled by, licensed to Marana Group, or are otherwise used by Marana Group with permission, and are protected under both United States and foreign laws. Except as explicitly stated in these Service Customs, Marana Group and our licensors reserve all rights in and to our Services and the Marana Group Content. We may, but are not obligated to, monitor your use of the Services and Marana Group Content. You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services, HealthScreen Tools, and/or HealthyVisitor Tools for (i) your own use as authorized in this Service Customs or (ii) to communicate about your business or organization with your customers. However, such license is subject to these Service Customs and does not include any right to (a) sell, resell or commercially use our Services or Marana Group Content; (b) copy, reproduce, distribute, publicly perform or publicly display Marana Group Content, except as expressly permitted by us or our licensors; (c) modify the Services, Marana Group Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services or Marana Group Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Services, HealthScreen Tools, and/or HealthyVisitor Tools other than for their intended purposes and in compliance with these Service Customs. Any use of our Services, HealthScreen Tools, and/or HealthyVisitor Tools other than as specifically authorized in these Service Customs, without our prior written permission, is strictly prohibited and will terminate this license.
25. CHANGES TO THESE SERVICE CUSTOMS
Marana Group reserves the right, in its sole discretion, to revise these Service Customs at any time upon posting the amended terms on the Site and/or Portal without providing notice to you. The amended terms shall automatically be effective upon posting. You should visit this page from time-to-time to review the then-current terms, because they are binding to you. Your continued use of the Services following Marana Group’s posting of any changes will constitute your acceptance of such changes.
26. CONTACT US
If you have questions or comments about this policy, you may email us at firstname.lastname@example.org.