Tomaino Arm Care Network Terms of Use Agreement
Welcome to www.rearmyourself.com (the “Site”). The Site is operated by the Tomaino Arm Care Network, a division of Tomaino Orthopaedic Care for Shoulder, Hand and Elbow LLC (collectively, “TACN” or “us” or “we”). By using the Site (including content thereon), whether or not you register as a user, you are agreeing to be bound by the following terms of use (the “Terms of Use”), as well as the Site’s Privacy Policy which is incorporated by reference herein and made a part hereof.
1. Acceptance of Terms of Use. You agree to the terms and conditions herein. We reserve the right to amend the Terms of Use, in our sole discretion, without specific notice to you – your continued use of the Site after we post an amendment to the Terms of Use constitutes your agreement thereto. We encourage you to review the Terms of Use prior to using the Site. If you do not agree with the Terms of Use, your recourse is to cease use of the Site. The Terms of Use shall remain in full force and effect for so long as you use the Site. If you register for use of the Site, then (a) you may terminate your registration at any time by emailing such request to us, and (b) we may terminate your registration at any time for any reason, in our sole discretion, effective immediately upon sending notice to you at the email address that you have provided in registration information. Notwithstanding any termination of your membership or use of the Site, Sections 3, 6, 7, 8, 12 through and including 20 of the Terms of Use will remain in full force and effect. You represent and warrant to TACN that you read and understand the Terms of Use.
2. Registration. You do not have to be a registered user to use the Site. However, there are certain features, including the Forum, that require you to be a registered user in order to be accessed and used. Upon registering, you agree that you will provide true and complete information regarding yourself in response to the registration questions, which will include your name, email address, and such other information as we may determine (the “Registration Data”). You shall promptly update the Registration Data to ensure it is true and complete. Upon registration, you will have to select a screen name and password by which you will be identified and by which you will be permitted to access your account. We may reject a screen name or require you to change it if we determine that such is offensive or violates the rights of a third party.
3. Site Member.
a) If you are a healthcare provider or other healthcare professional that TACN permits in its discretion to include content at the Site (as a “Site Member”), you may provide content relating to you and your healthcare practice and substantive content related to your area of practice (collectively, “Site Member Content”). TACN may require certain dimensions and webpage locations on the Site for Site Member Content. The Site Member Content may include a link or other mechanism to directly point users to the Site Member’s website (a “Link”), provided that the user of the Site shall be prompted with a notice that they are leaving the Site and accessing the Site Member’s site. Site Member Content may include trademarks, service marks and logos of the Site Member (“Site Member Marks”), copyright, designs, content and images provided by Site Member (collectively with the Site Member Marks, “Site Member Content”).
b) The Site Member solely shall be responsible for its Site Member Content. Without limiting anything in the Terms of Use or at law, the Site Member is solely liable for and TACN shall have no liability for any Site Member Content or communications from or to a Site Member. TACN does not sponsor, endorse or approve any Site Member Content nor does any Site Member Content represent the comments, views or statements of TACN. If you are a Site Member, you agree that your Site Member Content may not mislead Site users that you are affiliated with TACN and Site Member Content may not include any indecent or illegal content, all of which must be provided in accordance with applicable laws, rules and regulations.
c) The Site Member shall own all Site Member Content and hereby grants to TACN a non-exclusive, royalty free, worldwide license to display, reproduce and use the Site Member Content on the Site.
d) Each Site Member represents and warrants to TACN that (i) its Site Member Content will not infringe on the copyright, trademark, tradesecret or other rights of any third party, (ii) the Site Member has the full right and authority to publish on the Site all of its Site Member Content, (iii) the Site Member owns all right, title and interest in its Site Member marks, and (iv) all Site Member Content contains truthful and accurate information.
e) Each Site Member covenants and agrees that its Site Member Content shall include only information that the Site Member knows to be true and accurate and in accordance with best healthcare industry practices, and shall not in any way include a diagnosis, treatment or any other direct response to a specific person or set of facts..
f) Each Site Member agrees that it is bound by the TACN Privacy Policy (with respect to itself and all information from this Site) and each Site Member acknowledges the disclaimers set forth below in these Terms of Use. Each Site Member agrees to adhere to the TACN Privacy Policy with respect to use and disclosure of any information from Site users including Site Members and shall in all respects comply with all applicable federal, state and local laws, rules and regulations regarding the gathering, processing and transmitting of personally identifiable information including the Can Spam Act of 2003.
4. Use of the Site. You may not use the Site to advertise, solicit or sell goods or services to any other member, nor shall you use the Site for any other commercial purpose except if and as permitted as a Site Member. You may not permit any other person to use your user account or Site Member Content, and solely are responsible for any activity under your username or relating to your Site Member Content. We will not be liable for any damages or losses resulting from an unauthorized use of your account. You may not use the Site in any manner that is inconsistent with applicable laws, rules and regulations or for any unlawful purpose. You may not use or send any “Trojan horse”, spider, other automatic device, or manual process to monitor, "mine," or copy the web pages on the Site or the content contained therein, and may not otherwise upload, use or otherwise transmit any code, content or other files that contain a virus or other similar component. You may not take any action to interfere with, interrupt or limit the use or functionality of the Site.
5. Content and Rights to Remove Content. You are solely responsible for all message posts on the Site’s forum and for all of your Site Member Content, if any (collectively, “Member Content”) that you post, publish, display and distribute through your account. All Member Content that you post, publish, display or distribute must comply with these Terms of Use and you are solely responsible and liable for all such Member Content and the consequences of the posting, publication, display or distribution thereof. Without limiting any other terms in these Terms of Use, you must first obtain any rights necessary (including copyright rights) to post, publish, display or distribute any Member Content, and further, you agree to not post, publish, display or distribute any Content that (i) is obscene, indecent, pornographic, threatening, inaccurate, defamatory or otherwise could give rise to either civil or criminal liability, (ii) contains any personal identifiable information of a third party, including his or her address, phone number, email address or social security number, (iii) infringes or could infringe on any copyright, trademark, publicity, privacy or other intellectual property right of a third party, unless you have the written consent of such third party to use the Member Content in the manner in which you are posting, publishing, displaying or distributing it, or (iv) is intended to or purports to offer medical advice to a particular person or as to diagnose or advise with respect to a particular set of facts
We reserve the right, but do not have the obligation, to monitor, edit, reject, refuse to post and/or remove Site Content at any time without notice to you if we deem, in our sole discretion, that the Site Content violates these Terms of Service, violates or reasonably could violate applicable law, removal is necessary to protect the rights or safety of TACN, the public or members of the Site, or we otherwise believe that such is not consistent with the intent of the Site. If you believe that any Site Content violates these Terms of Service or otherwise may violate applicable law or your intellectual property rights, please notify us; provided, however, we reserve the right to determine if the Site Content should be edited, rejected and/or removed in our sole discretion.
6. License to Content. You hereby grant, and you represent and warrant that you have the right to grant, to TOCN and the users of the Site, an irrevocable, perpetual, non-exclusive, royalty-free, fully sublicensable, fully paid up, worldwide license to use, copy, perform, display and distribute all Member Content and to prepare derivative works of, or incorporate into other works, such Member Content.
7. Privacy. TACN values your privacy. You acknowledge that you have reviewed our Privacy Policy, which can be reviewed and downloaded at http://www.rearmyourself.com/Privacypolicy.
8. Proprietary Rights. Subject to your rights in your Site Member Content, and the license granted in Section 6 above, the Site and all material published on the Site including, without limitation, text, videos, graphics, photographs, sounds, messages and comments, and the configuration and arrangement and enhancement thereof, is owned by us or our licensors, and is protected by copyright, trademark, tradesecret, patent and other propriertary rights, including, without limitation, copyright laws of the United States of America. The copying, redistribution, use, modification, creation of derivative works or publication by you of any Site Content is strictly prohibited. All rights reserved. All trademarks and service marks (including, without limitation, TACN) appearing on this Site (“Marks”) are trademarks or service marks of their respective owners, and may not be copied, duplicated or used without the prior written consent of the owner.
9. No License Granted. Except for your right to use the Site as set forth in these Terms of Use, neither TOCN nor any Site Member is granting you a license or right to use the Site Content, Marks or any other rights (including intellectual property) of TACN or a Site Member.
10. Links to Other Web Sites. The Site provides Site Member Content of third parties and may contain links away from the Site to content, functionality and sites of third parties including Web sites, servers, networks, information, applications, software or other services and products (“Third Party Content”). We are not responsible for any Third Party Content (including its accuracy, opinions expressed therein or the questions posed or use of the information garnered thereby) that you may access, and we do not investigate, monitor or check such content. You hereby irrevocably waive any direct or indirect claim against us relating to or resulting from your use or reliance on such Third Party Content. Inclusion at the Site of a link to Third Party Content does not imply our approval or endorsement of the linked Third Party Content.
11. Communications from TACN and Site Members. By registering as a member of the Site, you acknowledge and agree that you may receive communications from TACN or a Site Member (including by email) including notices regarding the Site. If you would like, at any time, to unsubscribe to our email list, please click the “Unsubscribe” link at the bottom of the email communication and you will be removed from that particular mailing list.
12. Indemnification. You agree to indemnify, defend and hold TACN and its members, officers, directors, agents and representatives harmless from and against any liability, loss, claim, cost and expense of any kind, including attorneys’ fees, that we may incur in connection with or as a result of (i) any of your Site Member Content or any posting at the Forum by you and/or (ii) your violation of the Terms of Use and/or (iii) your use of the Site. We reserve the right to assume (at your expense) the exclusive defense and control of any matter subject to indemnification by you, in which case you agree to cooperate with us, in all reasonable respects.
13. Disclaimer of Warranties. ALL SITE CONTENT INCLUDING SITE MEMBER CONTENT ON, FROM OR THROUGH THE SITE IS PROVIDED “AS IS,” “AS AVAILABLE,” AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED BY US AND SITE MEMBERS (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFECT, ACCURACY, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT, AND WARRANTIES ARISING TRHOUGH COURSE OF DEALING OR USAGE OF TRADE, AND WARRANTIES THAT ACCESS TO THE SITE AND ANY THIRD PARTY CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE). THE SITE AND ANY INFORMATION AND SERVICES THEREON MAY CONTAIN BUGS, ERRORS OR OTHER LIMITATIONS. NO COMMUNICATIONS, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE SITE SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT NEITHER US NOR ANY SITE MEMBER IS RENDERING LEGAL, MEDICAL OR OTHER PROFESSIONAL SERVICES OR ADVICE.
WITHOUT LIMITATION TO THE FOREGOING, TOCN DISCLAIMS ALL LIABILITY WITH RESPECT TO ANY SITE OF A SITE MEMBER AND ANY SITE MEMBER CONTENT INCLUDING WITHOUT LIMITATION THE ACCURACY OR CONTENT (INCLUDING ANY MEDICAL OR HEALTH RELATED CONTENT) OF ANY SITE MEMBER CONTENT.
ADDITIONAL DISCLAIMERS BY AND OF TACN, WHICH ARE INCORPORATED HEREIN BY REFERENCE AND A PART OF THESE TERMS OF USE, ARE SET FORTH AT WWW.REARMYOURSLEF.COM/LEGAL DISCLAIMER.
14. Limitation of Liability. NEITHER US NOR ANY SITE MEMBER SHALL HAVE ANY LIABILITY FOR YOUR USE OF THE SITE AND ANY INFORMATION OR SERVICE THEREAT OR THEREFROM. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, IN NO EVENT WILL WE OR SITE MEMBERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ALL RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES CAUSED BY VIRUSES CONTAINED WITHIN ANY ELECTRONIC FILE OR OTHERWISE AT OR OBTAINED FROM THE SITE, IN ANY FORM, IS DISCLAIMED. THIS SITE AND THE INFORMATION AND SERVICES THEREON WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
FURTHER, AND WITHOUT LIMITATION OF THE FOREGOING, NEITHER US NOR ANY SITE MEMBER IS LIABLE OR RESPONSIBLE FOR (I) ANY SITE CONTENT, INCLUDING WITHOUT LIMITATION, CONTENT THAT IS OBSCENE, INDECENT, INFRINGING, THREATENING, INACURATE, DEFAMATORY OR TORTIUOS, OR (II) ACTS OR OTHER CONDUCT OF THIRD PARTIES, INCLUDING WITHOUT LIMITATION, THEIR COMMUNICATIONS AND CONTENT, OR (III) ANY VIRUS OR OTHER DISABLING FEATURE OR ACTION AFFECTING YOUR USE OR ACCESS TO THE SITE, OR (IV) DAMAGES FROM OR CLAIMS RELATING TO THIRD PARTY CONTENT, OR (V) ANY UNAUTHORIZED USE OF YOUR ACCOUNT.
IN THE EVENT THAT ANY WARRANTY DISCLAIMER OR DISCLAIMER OF LIABILITY SHALL BE DEEMED TO BE UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF TOCN FOR ALL CLAIMS SHALL NOT EXCEED THE SUM OF ONE HUNDRED DOLLARS ($100).
15. Copyrights and Notice and Procedures for Infringement Claims. We respect the copyright and other intellectual property rights of others, and we ask you to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement (or any other infringement), please provide us with written notice with at least the following information: (a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) A description of the copyrighted work that you claim has been infringed; (c) A description of where the material that you claim is infringing is located on the Site; (d) Your address, telephone number, and e-mail address; (e) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) A statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Our Copyright Agent for Notice of claims of copyright infringement on the Site is Copyright Agent, Tomaino Arm Care Network, 1445 Portland Avenue, Suite 201, Rochester, NY 14621, or by e-mail at mt@drtomaino.com
16. Views of Others. The statements and opinions of third parties (other than TACN) expressed in this Site -- for instance on the Forum or information from any Site Member including physicians and other healthcare providers-- are those or their authors and not necessarily the statements and opinions of TACN. We do not endorse the statements or opinions of others and take no responsibility for nor shall we have any liability for any such statements or opinions. Please review the Disclaimers set forth on the Terms of Use and on the Site for additional information and disclaimers regarding this issue.
17. Nontransferable. Your right to use the Site is not transferable. Any password or right given to you to obtain information is not transferable.
18. Choice of Law and Venue for Dispute Resolution. The Terms of Use shall be governed by and construed in accordance with the laws of the State of New York, without reference to any conflicts of law principles. Any cause of action by you with respect to the Site or any of its functions (including any content hereon) or otherwise in connection with the Terms of Use (i) must be instituted within one (1) year after the cause of action arose or be forever waived and barred, (ii) shall be subject to the limitations set forth in these Terms of Use, and (iii) shall be brought solely in a State or Federal court located in Monroe County, New York, United States of America. You expressly submit to the exclusive jurisdiction of such courts and consent to extraterritorial service of process.
19. Notices to TACN. Unless otherwise expressly set forth herein, you may notify us by email at mt@drtomaino.com or by postal mail at Tomaino Arm Care Network, 1445 Portland Avenue, Suite 201, Rochester, NY 14621, Attn: Admin.
20. Miscellaneous. These Terms of Use constitute the entire agreement between us and you, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings, with respect to the Site, the content thereon, and the subject matter of this Terms of Use. Should any part of this Terms of Use be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that anything in or associated with the Site is in conflict or inconsistent with this Terms of Use, this Terms of Use shall take precedence. Our failure to enforce any provision hereof shall not be deemed a waiver of such provision nor of the right to enforce such provision. The language in the Terms of Use shall be interpreted as in accordance with its fair meaning and not strictly for or against us or you.
