TERMS OF USE AGREEMENT

Ownership and Purpose of Site:

The health portal powered by eClinicalWorks website (the “Site”) is owned and operated by eClinicalWeb, LLC (“ECW”). Access to this site is made for patients and potential patients of Evolution Primary Care (“EPC).  The Site’s purpose is to provide a secure network that will assist patients in managing their medical records, prescriptions, doctors’ appointments and other healthcare related items in order to assist them in obtaining improved quality, safety, and efficiency of care.

 

Terms and Conditions:

This Terms of Use Agreement (“Terms of Use” or “Agreement”) defines the terms and conditions under which ECW makes the Site available. BY USING THIS SITE, YOU AGREE TO THESE TERMS OF USE. IF YOU DO NOT AGREE, DO NOT USE THE SITE.

 

These Terms of Use are a legally binding agreement made by and between ECW and you (whether you are joining for yourself or on behalf of a minor or a person to whom you are a caregiver) (“You” and as the context provides, “Your”). These Terms of Use govern Your access and/or use of the Site and You should read them carefully. This Terms of Use Agreement shall remain in effect at all times until You cease using the Site and cancel Your registration to access the Site. BY REGISTERING FOR ACCESS, ACCESSING, OR USING ANY PART OF THE SITE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREED TO BE BOUND BY THESE TERMS OF USE AND OUR PRIVACY POLICY. IF YOU DO NOT AGREE TO BE SO BOUND, DO NOT ACCESS OR USE THIS SITE.

 

ECW and EPC reserve the right, at their sole discretion, to make changes to portions or all of these Terms of Use and the Privacy Policy at any time. You are responsible for checking these Terms of Use and the Privacy Policy periodically for changes. Your continued use of the Site means that You agree to any new or modified provision of these Terms of Use or the Privacy Policy posted on the Site.

 

Content and Intellectual Property Information:

eClinicalWorks®, eClinicalWorks P2P®, eClinicalWeb®, eClinicalMessenger®, eClinicalMobile®, eBO®, Electronic Health eXchange®, eEHX® and Improving Healthcare Together® are federally-registered service marks of ECW. ECW also owns the common law rights in these marks and in the marks Join The NetworkTM, HealowTM, P2POpenTM, eClinicalWorks ScribeTM, eClinicalCareTM, eClinicalTouchTM, eClinicalWorks Care Coordination PortalTM, eClinicalWorks Care Coordination Medical RecordTM, eClinicalWorks Community AnalyticsTM, iClinicalPadTM, 100 Million PatientsTM, and the stylized eClinicalWorksTM hexagon mark. These marks may not be used without permission. Any third party trademark(s) that may appear on our Site are the property of their respective owner(s).

The Site’s proprietary contents include, without limitation, the animations, applets, audio, data, design, graphics, illustrations, images, information, marks, music, photographs, text, video, and any other files displayed, used and/or available on the Site (the “Content”), as well as the arrangement, coordination, design, expression, look and feel, selection, and structure of such Content. The Site’s Content is owned, controlled or licensed by or to ECW, and is protected by copyright, trade dress, trademark and other intellectual property rights and unfair competition laws. ECW reserves all rights, title, and interests in the Content and this Site.

Except as expressly provided in these Terms of Use or by ECW’s express written consent, no part of the Site and no Content may be copied, distributed, encoded, posted, publicly displayed, published, republished, reproduced, translated, or uploaded, in any manner.

 

Digital Millennium Copyright Notice and Other Reports of Infringement:

Pursuant to 17 U.S.C. § 512(c)(2) (“Digital Millennium Copyright Act of 1998”), You may contact ECW to report the infringement of any intellectual property right through ECW’s designated agent:

Damon J. Whitaker, Esq.

Bryan Cave LLP

1201 West Peachtree St., NW

14th Floor

Atlanta, Georgia 30309

404-572-6913 (telephone)

404-420-0913 (facsimile)

damon.whitaker@bryancave.com

 

Access and Use of Website:

The Site is intended to be used by individuals whose physicians are provided services from ECW and all other individuals that wish to use the Site’s functionality in connection with their medical care and wellbeing. In order to join and participate in the Site, You will be asked to provide information about Yourself (or the person on whose behalf You are joining the Site). If You are under 18 years old, please discuss whether you should join the Site with your physician. In order to join the Site, You must be a resident of the 50 states of the United States of America, exclusive of its commonwealths, territories and possessions. When You join the Site, You will provide ECW with information relating to Your identity and certain other information, including Your email address. By submitting such information to ECW, You hereby certify that any and all information provided to ECW by You is true and correct and you authorize ECW to use any method it chooses to verify the truth and accuracy of the information that You provide to the extent ECW needs to do so to protect its rights or other users of the Site. Failure to provide truthful and accurate information to ECW may result in termination of Your access to the Site.

The Site requires a valid, working e-mail address and other information in order to initially sign up for access to the Site and the use of its functionality. Additionally, You will be required to create a username and password to securely access the Site. You are solely responsible for maintaining the strict confidentiality of the username and password You create in order to access the Site. This responsibility includes not allowing another person to use Your credentials to access the Site. You will be solely responsible for any damages or losses that may be incurred or suffered as a result of Your failure to maintain the strict confidentiality of Your username and password. You should immediately inform ECW in writing of any need to deactivate your account due to potential or actual security concerns. ECW will not be liable for any harm related to the misappropriation of your username and password, Your willing disclosure of such items to another person, or Your authorization to allow another person or entity to access and use the Site under your log-in credentials.

ECW uses the means it believes are reasonable to provide access to this website 24 hours a day, 7 days a week, except in the case of natural disasters or events beyond ECW’s control and subject to any breakdowns or maintenance operations required to ensure the smooth operation of the Site. ECW shall not be liable for any failure or deficiency in the performance of the Site by reason of maintenance, breakdown or any event beyond ECW’s reasonable control, including without limitation, fire, Internet outage, interruption of service, labor disturbance, natural disaster, technological disaster, terrorism, or war.

You acknowledge that data conversion and transmission is subject to the likelihood of human and machine errors, omissions, delays and losses, including inadvertent loss of data or damage to media, that may give rise to loss or damage. ECW shall not be liable for any such errors, omissions, delays, or losses. You understand and agree that use of or connection to the Internet is inherently insecure and that connection to the Internet provides opportunity for unauthorized access by a third party to computer systems, networks, and any and all information stored therein. All information transmitted and received through the Internet is subject to unauthorized interception, diversion, corruption, loss, access, and disclosure. ECW shall not be responsible for any adverse consequences whatsoever of Your connection to or use of the Internet, and shall not be responsible for any use by You of an Internet connection in violation of any law, rule, or regulation or any violation of the intellectual property rights of another.

 

Medical Disclaimers:

Any Content available on the Site is for informational and educational purposes only and are not a substitute for the professional judgment of a health care professional in diagnosing and treating patients. Neither the Content nor any other service offered by or through the Site is intended to be substituted for medical diagnosis or treatment. ECW does not recommend or endorse any specific drugs, tests, physicians, products, procedures, opinions, “off-label” drug uses or other information that may be mentioned on the Site. Your reliance upon any information obtained or used by You is solely at Your own risk. ECW is not responsible for the accuracy of any information or content provided or sent by You or other users of the Site, including Your physician. You are responsible for verifying the accuracy of any information You send or receive through the Site, including any of Your patient health information, data, or records. If you have an emergency, DO NOT USE THE SITE to contact your physician – you should call 911 and request emergency care assistance.

 

Compliance with Laws; Transmission of Data:

With respect to its operation of the Site, and to the extent required by (i) the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the regulations promulgated thereunder, and (ii) the HITECH Act and any regulations promulgated thereunder, (collectively, the “Privacy Laws”), ECW will fully comply with the Privacy Laws and maintain the confidentiality of any Protected Health Information (as defined by the Privacy Laws) (“PHI”) transmitted or made available through the functionality of the Site, and in accordance with such compliance, ECW will, among other things:

1. Not use or further disclose PHI other than as permitted or required by the Privacy Laws and/or as You have agreed otherwise; b. Use appropriate safeguards to prevent the unauthorized use or disclosure of PHI; c. Report to You any unauthorized use or disclosure of PHI of which ECW becomes aware; d.   Ensure that any agent, including a subcontractor to whom ECW provides PHI in any format received from, or created or received within the Site, agrees in writing to comply with the Privacy Laws; e.            Mitigate, to the extent practicable, the harmful effect of any unauthorized use or disclosure of PHI; f.     Upon expiration or termination of Your use of the Site, return to You or destroy all PHI, if any, received from or transmitted by You in connection with Your use of the Site that is still in ECW’s possession or under its control; or if, return or destruction is not feasible, provide You with written notice in which ECW describes why return or destruction is not feasible and agree in writing to extend the protections of this Section to the PHI and limit further uses and disclosures to those purposes that make return or destruction infeasible. g.       You understand and agree that this Terms of Use Agreement may be amended from time to time if necessary to comply with the Privacy Laws. The requirements of this Section will survive the termination of Your use of the Site.

When You use the Site to upload and transmit PHI, You agree that, to the extent applicable, you shall comply with all State and Federal laws, including but not limited to the Privacy Laws. You represent and warrant that You will, at all times during the term of this Agreement and thereafter, comply with all laws directly or indirectly applicable to You that may now or hereafter govern the gathering, use, transmission, processing, receipt, reporting, disclosure, maintenance, and storage of PHI. You agree that ECW, and all other persons or entities involved in the operation of the Site, have the right to monitor, retrieve, store, review and use PHI, if applicable, in connection with the transmission of any PHI.

ECW acknowledges and agrees that the data and information that is compiled or passes through the Site that specifically relates You, Your patient care, or Your physician procedures or diagnosis (collectively, the “Client Data”), and all right, title and interest therein, is and shall remain the exclusive property of You. Notwithstanding the foregoing, to the extent permissible under the Privacy Laws and any other applicable laws and regulations, You hereby grant to ECW a perpetual, unlimited license to use the Client Data, in a de-identified format stripped of identifiers only, for data benchmarking, sharing, warehousing, resource utilization and similar data analysis services; provided, however, that ECW shall comply with the Privacy Laws in connection with any such actions and shall protect and maintain the confidentiality of all Client Data used in such manner.

ECW and EPC CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR YOUR USE OR MISUSE OF PHI OR OTHER INFORMATION TRANSMITTED, MONITORED, STORED OR RECEIVED WHILE USING THE SITE. ECW RESERVES THE RIGHT TO AMEND OR DELETE ANY UPLOADED CONTENT (ALONG WITH THE RIGHT TO REVOKE ANY MEMBERSHIP OR RESTRICT ACCESS TO THE SITE) THAT IN ECW’S SOLE DISCRETION VIOLATES ANY PROVISIONS OF THIS SECTION OR THE TERMS OF USE IN GENERAL.

 

Prohibited Conduct:

You may only use the Site for lawful purposes. In Your access and use of the Site, You agree that You will not: (i) infringe any copyright, patent, right of privacy, right of publicity, trademark, trade secret, or other right of ECW or any third party; (ii) abuse, defame, harass, or stalk any individual or other user of the Site; (iii) interfere or attempt to interfere with, or damage or attempt to damage, the Site or the proper working of the Site, including, without limitation, through the use of cancel bots, denial of service attacks, flood pings, forged routing or electronic mail address information, harmful code, packet or IP spoofing, phishing, Trojan horses, viruses, or similar methods or technology; (iv) use any deep-link, page-scrape, robot, spider, or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Site or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Site or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Site; (v) misrepresent Your identity, provide false information, impersonate another person or entity, misrepresent Your affiliation with a person or entity, including, without limitation, ECW, create or use a false identity, or attempt to use another user’s account; (vi) attempt to obtain unauthorized access to the Site; (vii) engage, directly or indirectly, in transmission of chain letters, junk mail, spam, or any other type of unsolicited solicitation; (viii) collect, reverse look-up, trace or seek to trace, manually or through automated means, information about other users or visitor to the Site without their express consent or other information relating to the Site; (ix) use any meta tags or any other hidden text utilizing the ECW name, service marks, trademarks, or product or service names; (x) advertise, offer to sell, or sell any goods or services set forth in the Site or otherwise use the Site to solicit other users, except as expressly permitted by ECW; (xi) engage in any activity that interferes with any third party’s ability to use or enjoy the Site; (xii) probe, scan or test the vulnerability of the Site or any network connected to the Site, or breach the security or authentication measures on the Site or any network connected to the Site; (xiii) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or ECW’s systems or networks, or any systems or networks connected to the Site or ECW; or (xiv) assist any third party in engaging in any activity prohibited by these Terms of Use.

 

Communication of Other Information To and On the Site:

The Site may at some point contain features that allow You to submit content or messages in the form of text, pictures, drawings, designs, graphics, audio clips, video clips, documents, or other files that are then displayed on the website and accessed by other Site users (a “Posting”). If such functionality becomes available, You are prohibited from submitting any Posting that: (i) restricts or inhibits any other user from using and enjoying the Site, in whole or in part; (ii) is abusive, defamatory, inaccurate, indecent, false, libelous, misleading, obscene, offensive, pornographic, profane, threatening, sexually explicit, vulgar, or unlawful in any manner; (iii) constitutes or encourages conduct that would constitute a criminal offense, gives rise to civil liability or otherwise violates any local, state, national or international law; (iv) violates, plagiarizes or infringes the rights of third parties including, without limitation, copyright, trademark, patent, rights of privacy or publicity or any other proprietary right; (v) contains a virus or other harmful component; (vi) contains any information, software or other material of a commercial nature; (vii) contains advertising, promotions or commercial solicitations of any kind; or (viii) constitutes or contains false or misleading statements of fact.

By submitting or authorizing any Posting, You are granting ECW a perpetual, worldwide, royalty-free, exclusive, sublicenseable and irrevocable right and license to use, copy, reproduce, distribute, perform and display such Posting (and any information contained therein) and derivative works thereof, in whole or in part, in any form, media or technology known or hereafter developed as long as such use is consistent with ECW’s applicable obligations set forth elsewhere in these Terms of Use. You hereby irrevocably waive any claims based on moral rights or similar doctrines and theories, and also based on right of privacy, misappropriation, right of publicity, unfair competition and similar doctrines, theories and torts.

You acknowledge that ECW will not pre-screen Postings, but that ECW and its designees have the right (but not the obligation) in their sole discretion to block or restrict access to or the availability of, or to edit, disable or remove, any Posting that is available via the Site. By way of example and without limiting the foregoing, ECW and its designees may edit, disable, remove, or restrict access to or the availability of, any Posting that violates these Terms of Use or is required to be reviewed, monitored, edited or deleted by any court order, or in any governmental, administrative or judicial proceeding. You must evaluate and bear all risks associated with the use of any Postings, including any reliance on the accuracy, completeness, or usefulness of such Postings. ECW assumes no liability for use of any Posting by any third party.

 

Ads; Communications with Users; Links To Third Parties:

The Site may include sponsored advertising and You hereby agree and understand that by using the Site, you consent to the presence of sponsored ads and services on the Site, which advertising will be placed at ECW’s sole discretion. The total area of the sponsored ads will not exceed more than 25% of any displayed page of the Site and such ads may be placed vertically on the left or right side, or horizontally on the bottom, of any displayed page on the Site. Sponsored ads shall at all times be clearly delineated from other content on the Site through the use of boxes surrounding the advertisement, a different colored background or other similar means and shall contain a header with the words similar to “Advertisement or Sponsorship”.

In addition to the foregoing advertising, ECW, through the Site or the contact information You have provided, may contact You regarding certain offers or products of ECW or other of its partners that ECW believes may be beneficial to You. You understand and agree that ECW may contact You in this manner. You will also be asked to grant an authorization for ECW to use Your PHI in connection with its business partners and the advertising and offers that may be directed to you. You may decide to authorize ECW to act in this manner by accepting such terms in the process of signing up for the Site. You will also have the authority to opt out of such use at any time by contacting ECW.

The Site may also contain links to the websites of ECW partners, advertisers or unrelated third party companies (“Linked Sites”).

ECW does not own and has no control over the Linked Sites and therefore assumes no responsibility and makes no warranties or representations with respect to the availability of these websites, their content, advertising material, and the products or services available at or through the Linked Sites. ECW does not endorse any Linked Site, is not bound by the terms and conditions, if any, of such Linked Sites, and the existence of a Linked Site does not mean that ECW has any affiliation, connections, endorsement, or sponsorship of such websites or their owners or operators. ECW accepts no liability for any direct or indirect damage that may result from a user’s visit to a Linked Site, or from a user’s use of the contents, products or services of these websites or their owners or operators.

You acknowledge and agree that ECW shall not be responsible or liable for the content or conduct of, associated with, or related to any Linked Site, and, accordingly, Your access and use of any Linked Site shall be solely at Your own risk. If You have any questions or concerns regarding any Linked Site, You should review any terms and conditions and privacy policy maintained by that Linked Site, or contact the applicable party or their website administrator.

 

Privacy:

The Site’s Privacy Policy applies to use of the Site, and its terms are hereby incorporated and made a part of these Terms of Use.

Your Representations, Warranties, and Indemnification of ECW:

You represent, warrant and covenant to ECW that: (i) You have the full power and authority to enter into and perform Your obligations under these Terms of Use; (ii) Your assent to, and performance of, Your obligations under these Terms of Use do not constitute a breach of or conflict with any other agreement or arrangement by which You are bound, or any applicable laws, regulations or rules; (iii) You are able to form a legally binding contract, and these Terms of Use constitute legal, valid and binding obligations on You, enforceable in accordance with their terms; (iv) You will not infringe the patent, copyright, trademark, trade secret, right of privacy, right of publicity or other intellectual property or proprietary right of ECW or any third party in Your use of the Site; (v) You have provided complete, truthful and accurate information about Yourself for purposes of joining the Site; (vi) You are not using, and will not use, the Site or any information contained therein for any improper, harassing, or unlawful purpose; (vii) You will comply with all applicable laws, rules and regulations in Your use of the Site, including these Terms of Use and any applicable healthcare laws or regulations; and (viii) You are not a paid consultant or have any other financial interests in the information You provide on the Site, including but not limited to the promotion of “off label” drug uses, the disclosure of the results of confidential clinical trials or any other proprietary information.

You agree to indemnify and hold ECW and its owners, employees, representatives, agents, attorneys, affiliates, directors, officers, members, and managers (“Indemnified Parties”) harmless from any and all damages, losses, costs or expenses (including without limitation, attorney’s fees and costs) incurred in connection with any third party claim, demand or action (“Claim”) brought or asserted against any of the Indemnified Parties: (i) alleging facts or circumstances that would constitute a breach by You of any provision of these Terms of Use; (ii) arising from, related to, or connected with Your use of this Site and/or its Content; or (iii) arising from, related to, or connected with Your non-compliance with any healthcare laws or regulations, including but not limited to the Privacy Laws.

 

Disclaimers, Exclusions and Limitations:

As used below in this section, “ECW” refers to its owners, its employees, representatives, agents, attorneys, affiliates, directors, officers, members, managers, volunteers and suppliers.

DISCLAIMER OF WARRANTIES:

THE SITE, ITS CONTENT AND ANY INFORMATION INCLUDED ON OR PROVIDED THROUGH THE SITE IS PRESENTED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. ECW DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND LACK OF NEGLIGENCE OR WORKMANLIKE EFFORT.

 

WITHOUT LIMITING THE FOREGOING PROVISIONS:

(1) YOU ASSUME SOLE RESPONSIBILITY FOR SELECTING THE SITE AND/OR ITS CONTENT TO ACHIEVE YOUR INTENDED RESULTS AND SOLE RESPONSIBILITY FOR THE USE OF, AND RESULTS OBTAINED FROM THE SITE AND/OR ITS CONTENT;

(2) ECW MAKES NO REPRESENTATION OR WARRANTY THAT THE SITE AND/OR ITS CONTENT OR ITS USE WILL BE ERROR-FREE, SECURE, VIRUS FREE, OR FREE FROM INTERRUPTIONS, DEFECTS OR OTHER FAILURES OR HARMFUL COMPONENTS OR THAT THE SITE AND/OR ITS CONTENT WILL SATISFY YOUR SPECIFIC REQUIREMENTS OR BE COMPATIBLE WITH YOUR EQUIPMENT OR OTHER HARDWARE, SOFTWARE OR BROWSER CONFIGURATION OR THAT INACCURACIES OR ERRORS WILL BE CORRECTED;

(3) ECW MAKES NO REPRESENTATION OR WARRANTY THAT THE INFORMATION OBTAINED FROM THIRD PARTY SOURCES (INCLUDING BUT NOT LIMITED TO ANY USERS OF THE SITE) USED ON OR WITH THE SITE OR RECEIVED IN CONNECTION WITH CONVERTING OR TRANSMITTING ANY DATA RECEIVED IN DIFFERENT FORMATS IS ACCURATE, TIMELY, OR ERROR FREE, AND ECW IS NOT RESPONSIBLE IN ANY WAY FOR THE INFORMATION OBTAINED FROM SUCH SOURCES;

(4) ECW MAKES NO REPRESENTATION OR WARRANTY THAT THE INFORMATION PROVIDED BY USERS TO GAIN ACCESS AND PERMISSION TO USE THE SITE OR OTHER INFORMATION POSTED BY USERS IS ACCURATE OR ERROR FREE; AND

(5) ECW MAKES NO REPRESENTATION OR WARRANTY REGARDING THE SUITABILITY OF ANY PERSONS PARTICIPATING IN THE SITE OR REGARDING THE CHARACTER OR INTEGRITY OF SUCH PERSONS.

SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

 

 

LIMITATION OF LIABILITY AND EXCLUSION OF DAMAGES:

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY SHALL ECW OR THE THIRD PARTIES MENTIONED ON THE SITE BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES OF ANY CHARACTER WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OR INABILITY TO USE THE SITE AND/OR ITS CONTENT, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THESE TERMS OF USE, EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE AND GROSS NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY BY ECW OR THE THIRD PARTIES MENTIONED ON ITS WEBSITE, AND EVEN IF ECW OR THE THIRD PARTIES MENTIONED ON THE SITE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

 

Violation of These Terms of Use:

You agree that ECW may, in its sole discretion and without prior notice, terminate Your access to the Site, if ECW determines in its sole discretion that You have violated these Terms of Use.

ECW may disclose any information it has about You, including Your identity, if it determines that such disclosure is necessary as part of any investigation or complaint regarding Your use of the Site, or to identify, contact or bring legal action against someone who may be causing injury to or interference with ECW’s rights or property, or a Site visitor’s rights or property. ECW reserves the right to disclose any information ECW deems necessary to comply with any applicable law, regulation, or governmental rule, and also when it determines that applicable law permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes.

You acknowledge and agree that ECW may preserve any communication by You with ECW through the Site or any service offered on or through the Site, and may disclose such communications when required by law or if ECW deems that such preservation or disclosure is reasonably necessary to: (1) comply with legal process; (2) enforce these Terms of Use; (3) respond to a claim that any communication, information posted on the Site, or Content violates the rights of others; or (4) protect the rights, property or personal safety of ECW and its employees, users of or visitors to the Site, and/or the public.

If ECW takes legal action against You as a result of Your violation of these Terms of Use, ECW will be entitled to recover from You, and You agree to pay, all reasonable attorney’s fees and costs of such action, in addition to any other relief granted to ECW. You agree that ECW will not be liable to You or to any third party for termination of Your access to the Site or removal of any communication or posting of information by You, or contents thereof, as a result of any violation of these Terms of Use.

 

Void Where Prohibited:

ECW reserves the right to limit, in its sole discretion, the provision and quantity of any Content, feature, product or service to any person or geographic area, whether by reason of the local laws applicable in such geographic area or otherwise. Any offer for any feature, product or service made on the Site is void where prohibited.

 

Modification or Termination of the Site:

ECW may, in its sole discretion and without any liability, change, discontinue, make improvements to, modify, or suspend, any aspect or all of the Site, temporarily or permanently, at any time without prior notice.

 

Jurisdiction and Applicable Law:

These Terms of Use shall be governed, construed and applied in all respects by the laws of the Commonwealth of Massachusetts, without regard to any provision governing conflicts of law. Any dispute arising out of, relating to, or connected with these Terms of Use or Your use of the Site shall be brought before the federal or state courts located in the Commonwealth of Massachusetts. By using the Site, You expressly consent to the personal jurisdiction and venue of such courts and waive any challenge thereto.

 

Miscellaneous:

If any provision of these Terms of Use are ruled by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provision(s) shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best furthers the intent of these Terms of Use, with all remaining provisions remaining in full force and effect.

These Terms of Use and the Privacy Policy constitute the entire agreement between You and ECW with regard to Your access and use of the Site. No counter-offers to these Terms of Use shall be accepted by ECW, and ECW rejects all such counter-offers.

ECW may assign its rights, in whole or in part, in the Site in accordance with its sole discretion. ECW’s failure or delay to insist on or enforce strict performance of these Terms of Use shall not be construed as a waiver of any provision or any right that ECW has to enforce these Terms of Use.

These Terms of Use do not confer any rights or remedies on any third parties.

Updated by ECW on October 5, 2012