Terms of Use

Last updated on June 13, 2017

This Terms of Use Agreement (“Terms” or “Agreement”) constitutes a legally binding agreement made between you, whether personally or on behalf of an entity (“user” or “you”) and New Caliber Medical Solutions, LLC., a Delaware corporation (“NCMS”) and its affiliated companies (collectively, “Company” or “we” or “us” or “our”), concerning your access to and use of the NCMS website as well as any other media form, media channel, mobile website or mobile application related or connected thereto (collectively, the “Website”). The Website provides the following services: C.O.C (“Company Services”). Supplemental terms and conditions or documents that may be posted on the website from time to time, are hereby expressly incorporated into this Agreement by reference. The Website is a copyrighted work belonging to NCMS.  NCMS grants you the right to use the Website subject to the terms set forth below. If you do not agree with or are not willing to comply with any portion of these Terms, do not download or use the Website. Company makes no representation that the Website is appropriate or available in other locations other than where it is operated by Company. The information provided on the Website is not intended for distribution to or use by any person or entity in a jurisdiction or country where such distribution or use would be contrary to the law or regulation of or which would subject Company to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Website from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable. All users who are under the age of 13 are not permitted to register for the Website or use the Company Services. Company also strongly recommends that children ages 13 through 17 consult their parents or legal guardians before using the Website. If you believe a child under the age of 13 is using the Website, please send all pertinent information to support@ncmspro.com. YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT BY ACKNOWLEDING SUCH ACCEPTANCE DURING THE REGISTRATION PROCESS (IF APPLICABLE) AND ALSO BY CONTINUING TO USE THE WEBSITE. IF YOU DO NOT AGREE TO ABIDE BY THIS AGREEMENT, OR TO MODIFICATIONS THAT COMPANY MAY MAKE TO THIS AGREEMENT IN THE FUTURE, DO NOT USE OR ACCESS OR CONTINUE TO USE OR ACCESS THE COMPANY SERVICES OR THE WEBSITE. By using the Website, you agree to comply with and to be bound by these Terms, and the terms set forth in NCMS’s Privacy Policy, which can be found at www.ncmspro.com. We reserve the right to change these Terms at any time at our sole discretion. By using the Website after any such change, you agree to comply with and to be bound by these Terms as changed. NCMS reserves the right at any time and for any reason, with or without notice, to: (1) modify, suspend, interrupt or terminate operation of or access to the Website, or any portion thereof; and (2) modify or change the Website and the applicable terms and policies. 

USER REPRESENTATIONS

Regarding Your Registration By using the Company Services, you represent and warrant that: A. all registration information you submit is truthful and accurate; B. you will maintain the accuracy of such information; C. you will keep your password confidential and will be responsible for all use of your password and account; D. you are not a minor in the jurisdiction in which you reside, or if a minor, you have received parental permission to use this Website; and E. your use of the Company Services does not violate any applicable law or regulation. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Website’s registration form and (b) maintain and promptly update registration data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your account and refuse any and all current or future use of the Website (or any portion thereof). 

MOBILE APPLICATION LICENSE

Use License

If you are accessing the Company Services via a mobile application, then Company grants you a revocable, nonexclusive, nontransferable, limited right to install and use the application on wireless handsets owned and controlled by you, and to access and use the application on such devices strictly in accordance with the terms and conditions of this license. You shall use the application strictly in accordance with the terms of this license and shall not: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the application; (b) make any modification, adaptation, improvement, enhancement, translation or derivative work from the application; (c) violate any applicable laws, rules or regulations in connection with your access or use of the application; (d) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Company or its affiliates, partners, suppliers or the licensors of the application; (e) use the application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (f) make the application available over a network or other environment permitting access or use by multiple devices or users at the same time; (g) use the application for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for the application; (h) use the application to send automated queries to any website or to send any unsolicited commercial email; or (i) use any proprietary information or interfaces of Company or other intellectual property of Company in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the application. 

Terms Applicable to Apple and Android Devices

The following terms apply when you use a mobile application obtained from either the Apple Store or Google Play to access the Company Services. You acknowledge that this Agreement is concluded between you and Company only, and not with Apple Inc. or Google, Inc. (each an “App Distributor”), and Company, not an App Distributor, is solely responsible for the Company application and the content thereof. (1) SCOPE OF LICENSE: The license granted to you for the Company application is limited to a nontransferable license to use the Company application on a device that utilizes the Apple iOS or Android operating system, as applicable, and in accordance with the usage rules set forth in the applicable App Distributor terms of service. (2) MAINTENANCE AND SUPPORT: Company is solely responsible for providing any maintenance and support services with respect to the Company application, as specified in this Agreement, or as required under applicable law. You acknowledge that each App Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the Company application. (3) WARRANTY: Company is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Company application to conform to any applicable warranty, you may notify an App Distributor, and the App Distributor, in accordance with its terms and policies, may refund the purchase price, if any, paid for the Company application, and to the maximum extent permitted by applicable law, an App Distributor will have no other warranty obligation whatsoever with respect to the Company application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Company’s sole responsibility. (4) PRODUCT CLAIMS: You acknowledge that Company, not an App Distributor, is responsible for addressing any claims of yours or any third party relating to the Company application or your possession and/or use of the Company application, including, but not limited to: (i) product liability claims; (ii) any claim that the Company application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. (5) INTELLECTUAL PROPERTY RIGHTS: You acknowledge that, in the event of any third-party claim that the Company application or your possession and use of the Company application infringes a third party’s intellectual property rights, the App Distributor will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. (6) LEGAL COMPLIANCE: You represent and warrant that (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. government list of prohibited or restricted parties. (7) THIRD PARTY TERMS OF AGREEMENT: You must comply with applicable third-party terms of agreement when using the Company application, e.g., if you have a VoIP application, then you must not be in violation of their wireless data service agreement when using the Company application. (8) THIRD PARTY BENEFICIARY: Company and you acknowledge and agree that the App Distributors, and their subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, each App Distributor will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof. 

SUBMISSIONS

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Website or the Company Services ("Submissions") provided by you to Company are nonconfidential and Company (as well as any designee of Company) shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. 

INTELLECTUAL PROPERTY RIGHTS

The content on the Website (“Company Content”) and the trademarks, service marks and logos contained therein (“Marks”) are owned by or licensed to Company, and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Company Content, includes, without limitation, all source code, databases, functionality, software, website designs, audio, video, text, photographs and graphics. All Company graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, common law trademarks or trade dress of Company in the United States and/or other countries. Company's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of the Company.  The Website may also make available materials, information and services provided by third parties, such as photographs, text, graphics, pictures, sound, video, information and software applications (collectively, the “Third Party Content”). The Third-Party Content may be governed by separate license agreements that accompany such content. Third Party Content is not investigated, monitored or checked for accuracy, appropriateness, or completeness by us. Company offers no guarantees and assumes no responsibility or liability of any type with respect to the Third-Party Content, including any liability resulting from incompatibility between the Third-Party Content and the Content offered by Company. You agree that you will not hold Company responsible or liable with respect to the Third-Party Content or seek to do so. Further, we are not responsible for any third-party websites accessed through the Website, and you should review the terms of use and policies of any website to which you navigate from the Website. If you decide to leave the Website and access third party websites or content, you do so at your own risk and you should be aware that our terms and policies no longer govern. To the extent the Website contains links to outside services and resources, you acknowledge that: (1) Company is not responsible for the content of any linked site or any link contained in a linked site, or any changes or updates to such sites; and (2) Company is not responsible for any other form of transmission received from any linked site. Company provides these links to you only as a convenience, and the inclusion of any link does not imply our approval or endorsement. Any issues or concerns regarding any such site should be directed to the owner or operator of that site. Company Content on the Website is provided to you “AS IS” for your information and personal use only and may not be used, copied, reproduced, aggregated, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Provided that you are eligible to use the Website, you are granted a limited license to access and use the Website and the Company Content and to download or print a copy of any portion of the Company Content to which you have properly gained access solely for your personal, noncommercial use. Company reserves all rights not expressly granted to you in and to the Website and Company Content and Marks. 

USE OF THE WEBSITE

Subject to the Terms, you may view and access the Website solely for the purpose of using the Website as an applicant for employment, a current or potential customer, current or potential business partner, or current or potential investor in Company, and not to compete with Company. 

PROHIBITED ACTIVITIES THROUGH THE WEBSITE

In addition to other limitations set forth in these Terms, by using the Website, you agree not to: (1) use any data mining, robots, or similar data gathering and extraction methods in connection with the Website; (2) interfere with the operation of the Website or with any other person’s use of the Website; (3) impose an unreasonable burden on the Website or network; (4) breach, or attempt to breach, the security of the Website; (5) gain unauthorized access to the Website or any part thereof; (6) use the Website for any purpose that is beyond the scope of the Website’s expected use, illegal or prohibited by these Terms; (7) solicit any activity, unlawful or otherwise, that infringes Company’s rights or the rights of any other party; and (8) use the Website to transmit: spam, junk email, bulk email, promotions, or other solicitations, content that includes any advertising or marketing materials; content that may be deemed unlawful, threatening, harassing, racist, abusive, libelous, pornographic, vulgar, defamatory, obscene, indecent, or otherwise inappropriate, including any messages constituting or encouraging criminal conduct; content that violates or infringes on our legal rights or copyrights, or the legal rights or copyrights of others; or viruses, bugs, worms, or any other computer code that may harm a network, computer, server, hardware, software, or telephone equipment. 

SERVICES & SOFTWARE

If you use, access or download any of Company software or services, you will be subject to the terms of Company’s End User License Agreement, which can be found at www.ncmspro.com

ACCOUNT SECURITY

If you enter data through the Website, you agree to provide accurate and truthful information about yourself and to keep your account current. You are responsible for any activity that occurs under your account and you are entirely responsible for the security and secrecy of your account login information and for all activity that occurs on your account as a result of your failure to maintain the security or secrecy of your account login information. You agree to notify Company immediately of all unauthorized use of your account and if the security or secrecy of your account login information has been compromised. You may be held responsible for any losses incurred by Company or any other user of the Website that are in any way related to your failure to maintain the security of your account information. 

NOTICE OF COPYRIGHT INFRINGEMENT

Company holds copyright laws and principles in high regard. If you believe in good faith that information contained on the Website infringes your copyright, we encourage you to provide us with written notification as set forth below. We will review all claims of copyright infringement received and remove content that we deem, in our sole discretion, to have been posted or distributed in violation of any such laws. To make a claim, provide us with the following: · Contact information, including an email address and telephone number where we can reach you; · A clear description or identification of the copyrighted work that you claim was infringed; · A clear description or identification of the material you claim infringes the copyrighted work and information reasonably sufficient to allow us to locate the material on the Website. For example, a link to the material you claim is infringing; · Include the following or similar statement:    

  • “I have a good faith       belief that the material that is claimed as copyright infringement is not       authorized by the copyright owner, its agent, or the law.”
  • “I swear, under penalty       of perjury, that the information in the notification is accurate and I am       the copyright owner, or am authorized to act on behalf of the owner, of       an exclusive right that is allegedly infringed.”

· The notice must be signed by the owner or authorized person delegated to act on behalf of the owner; · Company’s designated agent to receive and act on copyright violations under the Digital Millennium Copyright Act (DMCA) may be contacted at: accounts@ncsmspro.com. We will review and address all notices that comply with the requirements set forth above. Please do not send any correspondence unrelated to claims of copyright infringement as they will not be responded to. PLEASE NOTE THAT IF YOU KNOWINGLY MISREPRESENT THAT ONLINE CONTENT IS INFRINGING, YOU MAY BE SUBJECT TO SIGNIFICANT CIVIL PENALTIES, WHICH MAY INCLUDE MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES INCURRED BY US, BY ANY COPYRIGHT OWNER, OR BY ANY COPYRIGHT OWNER’S LICENSEE THAT IS INJURED AS A RESULT OF OUR RELYING UPON YOUR MISREPRESENTATION. In accordance with the DMCA, Company has adopted a policy of terminating account holders who are deemed to be repeat copyright infringers. 

LIMITATION OF LIABILITY

Except where prohibited by law, in no event will Company its officers, shareholders, predecessors, successors in interest, directors, employees, agents, subsidiaries, affiliates, licensors and suppliers be liable for any direct, indirect, special, punitive, incidental, exemplary or consequential damages that result from: (1) the use of, or inability to use, the Website; (2) the performance of the Website; or (3) the conduct of other users of the Website, even if Company has been advised of the possibility of such damages. You assume total responsibility for your use of the Website. Your only remedy against Company for dissatisfaction with the Website is to stop using the Website. If, notwithstanding the terms herein, Company is found liable to you for any damage or loss which arises out of or is in any way connected with your use of the Website, Company’s liability shall in no event exceed $100 US Dollars. In addition to the forgoing limitations of liability, you agree that you will not join any claim against Company with the claim of any other person or entity in a lawsuit, arbitration or other proceeding; that no claim you have against Company shall be resolved on a classwide basis; and that you will not assert a claim in a representative capacity against Company on behalf of anyone else. 

INDEMNITY

You agree to defend, indemnify and hold Company, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless 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 your contributed content, use of the Company Services, and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above. Notwithstanding the foregoing, Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Company, and you agree to cooperate, at your expense, with Company’s defense of such claims. Company 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. 

DISCLAIMER

Company cannot control the nature of all of the content available on the Website. By operating the Website, Company does not represent or imply that Company endorses any blogs, contributions or other content available on or linked to by the Website, including without limitation content hosted on third-party websites or provided by third-party applications, or that Company believes contributions, blogs or other content to be accurate, useful or nonharmful. We do not control and are not responsible for unlawful or otherwise objectionable content you may encounter on the Website or in connection with any contributions. The Company is not responsible for the conduct, whether online or offline, of any user of the Website or Company Services. YOU AGREE THAT YOUR USE OF THE WEBSITE AND COMPANY SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND THE COMPANY SERVICES AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITE’S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THIS WEBSITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE OR COMPANY SERVICES, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH AY BE TRANSMITTED TO OR THROUGH THE WEBSITE BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, 

CONTROLLING LAW AND SEVERABILITY

This Agreement shall be construed in accordance with the laws of the State of California, without regard to any conflict of law provisions. Any dispute arising under this Agreement shall be resolved exclusively by the state and/or federal courts of the State of California, County of Los Angeles and/or the Central District of California. If a court of competent jurisdiction finds any provision or portion of these terms and conditions unenforceable, the remainder shall continue in full force and effect. 

NOTICE

Except as explicitly stated otherwise, any notices given to Company shall be given by email to the address listed in the contact information below. Any notices given to you shall be given to the email address you provided during the registration process, or such other address as each party may specify. Notice shall be deemed to be given twenty-four (24) hours after the email is sent, unless the sending party is notified that the email address is invalid. We may also choose to send notices by regular mail. For contractual purposes, you consent to receive communications from Company electronically.  Notices sent to you shall be sent by personal delivery, electronic mail, registered or certified mail (return receipt requested, postage prepaid) or commercial express courier (with written verification of receipt) to the address listed on your account.  All notices will be deemed given: (i) when delivered personally; (ii) 24 hours after electronic mail is sent, unless Company is notified that the email address is invalid; (iii) five (5) days after having been sent by registered or certified mail, (or ten (10) days for international mail; or (iv) one (1) day after deposit with a commercial express courier specifying next day delivery (or two (2) days for international courier packages specifying 2-day delivery).  Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. 

EQUITABLE RELIEF

The parties agree that a material breach of this Agreement adversely affecting Company’s intellectual property rights in the Website may cause irreparable injury to Company for which monetary damages would not be an adequate remedy and Company shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have hereunder or at law.  

ELECTRONIC CONTRACTING

Your use of the Company Services includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO RELATING TO THE COMPANY SERVICES, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility. 

MISCELLANEOUS

This Agreement constitutes the entire agreement between you and Company regarding the use of the Company Services. The failure of Company to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. This Agreement and your account may not be assigned by you without our express written consent. Company may assign any or all of its rights and obligations to others at any time. Company shall not be responsible or liable for any loss, damage, delay or failure to act caused by any cause beyond Company's reasonable control. If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and Company as a result of this Agreement or use of the Website and Company Services. Upon Company’s request, you will furnish Company any documentation, substantiation or releases necessary to verify your compliance with this Agreement. You agree that this Agreement will not be construed against Company by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and the lack of signing by the parties hereto to execute this Agreement. 

CONTACT US

In order to resolve a complaint regarding the Company Services or to receive further information regarding use of the Company Services, please contact Company as set forth below or, if any complaint with us is not satisfactorily resolved, and you are a California resident, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at Coronado Tr., Frisco, Texas 79036, United States or by telephone at 12144712808. New Caliber Medical Solutions LLC. __________ __________, __________ __________ Email: support@ncmspro.com Phone: 12144712808 [End of Website Terms of Use]