- COLLECTING AND USING YOUR INFORMATION
(a) Company provides medical services to its patients (the “Services”). Subject to all applicable protected healthcare information (“PHI”) laws, including, without limitation, the HIPAA Act, Company, its subsidiaries, third party affiliates and/or (sub)contractors may collect and share information about You when You are accessing, browsing, contributing to, viewing, visiting, registering with, interacting with or otherwise using the Website (including, without limitation, when You are registering for a user account through any third-party social media networks such as Facebook), including, without limitation, the following: Your name, Your email address(es), Your birth date, Your gender, Your country of origin, Your IP address(es), Your browser type(s), Your times and frequency of accessing the Website, Your credit card information, Your location data, and any other personal information about You collected by Company from various sources, including, without limitation, data aggregators, technical information platforms, public databases, or Company’s third party affiliates, all of which may include information about You including, without limitation, Your demography and Your online activities (the “Collected Information”). Company may also store and collect information via “cookies” from any or all of Your electronic devices used to access the Website, which purpose is to facilitate the transmission of the Services to You via the Website, and to identify Your preferences so that Company may adapt the Services accordingly. Cookies do not typically contain or transmit any personal information about You, and are used to gather information to analyze traffic on the Services. You may deactivate cookies by reviewing Your preferences in Your web browser or electronic devices.
(b) Company’s use of Collected Information is to enhance Your Website user experience, facilitate customer service, inform You of Company’s products and promotions, and personalize the Services to better meet Your needs. By consenting to this Agreement, you grant Company the right to share Your Collected Information with Company’s affiliates and any third parties. Also, by using Company’s Website, You consent that Company may share Your Collected Information with any third parties who provide services to Company, or with whom You have requested to provide You with goods or services through the Company Website, including, without limitation, payment processing companies, advertisers, data processing companies, and other websites or platforms for which You may view the Website through. Additionally, Company may, in its sole discretion, choose to disclose any Collected Information to any third parties in order to protect the rights of Company or its affiliates, or to protect the safety of the Website, or to comply with any valid legal process from a governmental body or any court of competent jurisdiction.
(c) Any Collected Information received by Company through the Website, including, without limitation, Collected Information You place in Your user profile, posting a review on the Company Website, or emailing Company, shall be treated as non-confidential information, and may potentially be shared with Company’s affiliates or third parties.
(e) Company may send emails to You in periodic intervals. Email recipients may opt out at any time by following the "unsubscribe" instructions included in any such email message, or by clicking this link to unsubscribe. Company shall remove You from Company’s email list in a reasonable amount of time after receipt of notice.
- NO COLLECTION OF DATA FROM USERS UNDER 13
Company does not knowingly collect or maintain personally identifiable information or non-personally identifiable information from persons under the age of 13 years of age, and no part of Company’s Website is directed towards, or intended to be accessed by, persons under the age of 13. If Company obtains actual knowledge that personally identifiable information of any persons less than 13 years of age has been collected, Company shall take appropriate steps to delete such information in a timely manner.
- REPRESENTATIONS AND RESTRICTIONS
(a) You accept and agree to abide by all of the terms and conditions herein and warrant and represent that You are under no disability, or any other restriction, which prevents Your ability to enter into, perform in accordance thereof, and comply with all terms and conditions herein. By registering through the Website as Our patient, You further acknowledge that You are at least 18 years of age; if You are under 18, then You may not, under any circumstance, register for an account or use the Website. Company, in its sole and absolute discretion, may request proof confirming that You are 18 or older.
(b) Company shall have no liability to You in the event that any harmful component, including, without limitation, a computer virus, infects, harms, or causes any damage whatsoever to Your electronic equipment, including, without limitation, Your computer(s), cell phone(s), tablet(s) or any other electronic equipment that You use to interact with the Website in any manner or by any means.
(c) You represent and warrant that Your use of the Website, including, without limitation, uploading or downloading any computer files to or from the Website, shall not violate any applicable laws or regulations, including, without limitation, copyright laws, trademark laws, patent laws, trade secret laws, and publicity and privacy laws, or interfere in any way with any third party's use and enjoyment of the Website. You warrant and represent that you have all necessary licenses, rights, consents, and permissions to upload or download all computer files you submit to or receive from the Website, and that you shall not download or display any computer files for any purpose not specifically referenced herein. It is strictly prohibited to knowingly post or transmit any unlawful, threatening, or infringing material or information, or to impersonate any persons while interacting with the Website in any manner or by any means. You agree you will promptly flag for Company upon upload of any content that may reasonably be considered offensive to Company, for instance, graphic language. Company shall have no liability for any inaccurate information provided to Company or Company’s affiliates by You, or a user or visitor of the Website.
(d) You acknowledge that ownership, title, and all intellectual property rights in and to all uploaded computer files belong to the respective user.
(e) You represent, warrant, and agree that You shall not, via the Website or otherwise, take any actions that a reasonably prudent person would know may cause damage to the Website, or may impair the availability or accessibility of the Website, in any way which is fraudulent, unlawful, illegal, or harmful, including, without limitation, modifying, adapting, bypassing, or hacking the Website to change, de-crypt, interrupt, destroy, or limit the functionality of any of Company’s computer software, hardware or telecommunications equipment; upload, post, host, or transmit unsolicited emails, “spam” messages, worms, or viruses or any code of a destructive nature; contact any other visitor or user of the Website for any illicit or illegal purpose, or who has requested not to be contacted; access the Website through unpermitted automated means, including, without limitation, via "robots," "spiders," "offline readers" or any other analogous software or code; or attempt to gain unauthorized access to Company’s servers or computer systems or engage in any activity that may interfere with the performance of, or impair the functionality of, the Website, or any services provided by Company’s affiliates through third party websites and/or internet-accessible platforms.
(f) You will not remove any copyrights, service marks, trademarks, or other legal notices that accompany any computer files accessible to You or downloaded by You via the Website.
(g) You are solely responsible for all costs associated with Your interacting with the Website in any manner or by any means, including, without limitation, all Internet connectivity or data transmissions fees incurred by You from Your own Internet or cellular service provider. Likewise, You are solely responsible for any system software and/or hardware compatibility requirements for Your use of the Website. Company does not warrant performance of the Websites, Services and/or Apps, or their continuing capability, as to any software or hardware.
(h) You understand the availability and quality of the Website may change from time to time due to a variety of factors beyond the control of Company, including without limitation, the speed of Your Internet connection, the selected computer files, availability of any computer files from third parties, Your location, and Internet bandwidth, and that, unless stated otherwise, Company makes no representations or warranties about the quality of the Website.
(i) You acknowledge that You may not use the Website in any other way not expressly stated herein or approved in an advance writing by Company. Company explicitly reserves all rights related to the Website not specifically contemplated herein.
(j) You acknowledge and agree that sometimes, Company’s Website is subject to restrictions imposed by Company’s affiliates, and these affiliates may require You to adhere to additional terms and conditions for the use or access of such services, internet-accessible platforms or websites. You agree that Your use of the Website shall be subject to all of these additional terms and conditions. If you have any questions, please contact Company at: 1.516.939.6100. In certain cases, certain aspects of Company’s Website may become unavailable without any prior notice to You due to restrictions from such third parties. In such event, Company shall have no liability whatsoever to You for any such unavailability.
(a) Company does not warrant or represent that Your use of the Website will not infringe the rights of any third party, and assumes no responsibility or liability whatsoever arising from such use, or for any error, defamation, omission, obscenity, or danger, contained within the Website. Company, and its affiliates, are not responsible for and do not guarantee the accuracy or completeness of anything contained on or within the Website, including, without limitation, any computer files, links, or advertisements. Company, and its affiliates reserve the right to immediately change, suspend, remove, or disable the Website at any time and for any reason or for no reason in Company’s and its affiliates’ sole discretion. Company assumes no responsibility, and shall not be liable in any way for any such change to the Website.
(b) Company cannot and does not review all computer files or communications uploaded, made on, or through the Website. However, although not obligated to do so, Company may review, verify, make changes to or remove any or all computer files or other material made available in connection with the Website with or without notice in its sole discretion.
(c) The Website and all other features or functionalities associated therein are made available “as is” and “with all faults”, and You understand that interruptions or disturbances, including, without limitation, Company’s ability to send You files, may occur. Use of the Website is entirely at Your own risk. Company makes no guarantee that Your use of the Website and all other features or functionalities associated therein, or delivery of any computer files, will be uninterrupted, interference free, or error free, or be free from any viruses, worms, or other security intrusions. Unless stated otherwise, Company, to the fullest extent permissible by applicable law, disclaims all warranties, expressed or implied, written or oral, arising from a course of dealing, performance, usage of trade, or otherwise, including, without limitation, warranties of merchantability, fitness for a particular purpose, and non-infringement.
- TRANSFERING COLLECTED INFORMATION; INTERNATIONAL USERS
(a) Company uses computers and servers across the world. By using the Company Website, You acknowledge and agree that any or all of Your Collected Information may be transferred and processed beyond the borders of Your home country.
(b) YOU ACKNOWLEDGE AND AGREE THAT SOME COUNTRIES, INCLUDING WITHOUT LIMITATION, THE UNITED STATES OF AMERICA, MAY TREAT YOUR COLLECTED INFORMATION SUBSTANTIALLY DIFFERENTLY FROM YOUR HOME COUNTRY. THIS INCLUDES BEING LESS PROTECTIVE THAN YOUR HOME COUNTRY REQUIRES. IF YOU DO NOT WANT YOUR COLLECTED INFORMATION TRANSFERRED, DO NOT USE OUR WEBSITES, SERVICES OR APPS. TO THE EXTENT ALLOWED BY THE LAW OF THE COUNTRY IN WHICH YOU ARE PRESENTLY LOCATED, YOU EXPRESSLY WAIVE ANY RIGHT YOU MAY HAVE TO REQUIRE US TO TREAT ANY OF YOUR IDENTIFYING INFORMATION OR COLLECTED INFORMATION IN ACCORDANCE WITH THE LAWS OF ANY COUNTRY OR JURISDICTION OTHER THAN THE UNITED STATES OF AMERICA. THE AFOREMENTIONED WAIVER MAY NOT BE LEGALLY BINDING IN SOME COUNTRIES (E.G. THE EUROPEAN UNION).
- LIMITATION OF LIABILITY
(a) To the fullest extent allowable by applicable law, Company, along with its subsidiaries, third party affiliates and subcontractors, shall not be liable for any direct, indirect, special, incidental, consequential, exemplary, extra-contractual, actual or punitive damages of any kind whatsoever incurred by You, including, without limitation, lost revenues or lost profits, which are in any way related to Your use of the Website or other materials available through the Website, regardless of legal theory (including, without limitation, contract, tort, personal injury, property damage, negligence, warranty, or strict liability), whether or not Company, or its affiliates, have been advised of the possibility or probability of such damages, and even if the remedies otherwise available fail of their essential purposes.
(b) Some states in the U.S.A. do not allow the limitation or exclusion of liability for incidental or consequential damages, so the preceding limitation or exclusion in 7(a) above may not apply to You. Notwithstanding the foregoing, under no circumstances shall the total liability of Company, or its subsidiaries, third party affiliates and/or (sub)contractors, in connection with, based upon, or arising from Your using or interacting with the Website or any other materials found therein shall exceed the price of one hundred dollars ($100.00) USD per claim. Likewise, if any part of the aforementioned limitation of liability is found to be invalid or unenforceable by a court of competent jurisdiction, then the total liability of Company, its subsidiaries, third party affiliates and/or subcontractors shall not exceed one hundred dollars ($100.00) USD per claim. If You are dissatisfied with the Website, or with any of the terms and conditions contained herein, Your sole and exclusive remedy is to discontinue using or interacting with the Website.
You agree to indemnify Company and all of its third party affiliates, members, managers, directors, officers, employees, agents, attorneys, subcontractors and licensors (“Indemnified Parties”) against any and all claims, actions, suits, and other proceedings (“Claims”) arising out of or incurred in connection with Your use of the Website, or Your violation of any of the terms and conditions herein, or Your violation of applicable laws or regulations (such as the violation of a third party’s copyright rights). You shall indemnify and hold the Indemnified Parties harmless from and against any and all judgments, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees, expenses and costs) arising out of or incurred in connection with such Claims. This indemnification obligation shall survive termination of this Agreement by either party and/or Your ceasing to use the Website. Company reserves the right to take over the exclusive defense of any and all Claims for which Company is entitled to indemnification, and, in such an event, You shall provide full cooperation to Company upon request in Company’s sole discretion.
- FORCE MAJEURE
You understand and agree that Company is not liable for any failure of performance related to Your usage of the Website due to any cause beyond its control, including, without limitation, acts of God, fire, explosion, vandalism, terrorism, weather disturbances, national emergencies, riots, wars, labor difficulties, supplier failures, shortages, breaches, action or request by any government, or suspension of existing service in compliance with state or federal law, rule, or regulations.
- ENTIRE AGREEMENT; ADDITIONAL TERMS
All of the terms and conditions herein represent the entire understanding between Company and You, superseding all prior agreements (including previous versions of this Agreement), whether oral or written, with respect to Your use of the Website, and all other subject matter contained herein. All terms and conditions herein shall be binding upon and inure to the benefit of each party’s respective assigns, successors, heirs, and legal representatives, including, without limitation, any third party that acquires Company in whole or in part. These terms and conditions cannot be modified or amended, except as expressly provided for herein. These terms and conditions are personal to You and are not assignable, transferable, or sub-licensable by You except with Company’s prior written consent, whose consent may be withheld in its sole discretion. Company may freely assign this Agreement. If any part of this Agreement is deemed by a court of competent jurisdiction to be void, voidable, illegal, or unenforceable, then the remainder of the terms and conditions shall remain in full force and effect as if such void, voidable, illegal, or unenforceable part had not existed. The waiver of a breach of any of these terms and conditions by either party hereto shall not be construed as a waiver by the non-breaching party of any subsequent breach by the breaching party. Headings are inserted herein for convenience only and are not intended to be part of, or to affect the meaning or interpretation of, these terms and conditions. All terms and conditions herein which, by their nature, should survive termination or expiration, shall survive termination by either party or expiration.
- CHOICE OF LAW; WAIVER OF JURY TRIAL
You consent and agree that: (i) all of the terms and conditions herein shall be exclusively governed by the laws of the State of New York applicable to contracts entered into and performed within the State of New York, notwithstanding any conflict of law principles; (ii) You accept service of process by personal delivery or regular mail; and (iii) You waive the right to any jurisdictional or venue defenses otherwise available to You, including, without limitation, forum non-conveniens.
- SUBMITTING TIMELY CLAIMS; ARBITRATION; CLASS ACTION WAIVER
(a) Any alleged claim or cause of action that You may have against Company with respect to Your use of the Website must be received by Company no later than thirty (30) days after the alleged claim or cause of action initially arose; otherwise, it shall be forever waived. All rights and remedies to Company are cumulative and shall in no way affect any remedy available to Company under equity or law. You agree that any violation or breach of the terms and conditions herein by You shall result in irreparable harm to Company and that monetary damages will be inadequate. Accordingly, You hereby agree Company shall be entitled to seek any injunctive relief that it deems appropriate.
(b) EXCEPT WHERE PROHIBITED BY LAW, YOU AND COMPANY AGREE THAT ALL DISPUTES, CLAIMS, ACTIONS, PROCEEDINGS OR CONTROVERSIES BETWEEN YOU AND COMPANY (including disputes against any agent employee, subsidiary, affiliate, predecessor in interest, successor, or assign of the other), ITS PARENTS, AFFILIATES, SUBSIDIARIES OR RELATED COMPANIES, relating to Our Websites, the SERVICES and Apps provided by the Company, any transaction or relationship between us resulting from Your use of Company’s Websites, Services and/or Apps, communications between us, or the purchase, order, or use of Our SERVICES, or the information provided by You to Company, INCLUDING, WITHOUT LIMITATION, TORT AND CONTRACT CLAIMS, CLAIMS BASED UPON ANY FEDERAL, STATE OR LOCAL STATUTE, LAW, ORDER, ORDINANCE OR REGULATION, AND THE ISSUE OF ARBITRABILITY, SHALL BE RESOLVED BY THE FINAL AND BINDING ARBITRATION PROCEDURES SET FORTH IN SECTIONS 12(b), 12(c), 12(d) and 12(e) herein with one (1) arbitrator mutually-approved by the parties making such determination. If both parties are unable to mutually approve an arbitrator, a neutral arbitrator shall be selected in accordance with the then-current Arbitration Rules for the selection of neutral arbitrators. The parties hereto agree to submit to venue and jurisdiction of such disputes exclusively in New York County, NY and each party hereby waives any right it may have to challenge the appropriateness of such forum, whether on the basis of the doctrine of forum non conveniens or otherwise. The prevailing party in any action, arbitration, suit or proceeding arising under or relating to this Agreement shall be entitled to recover from the other party its reasonable attorneys' fees (in addition to its costs, expenses and any accrued interest) incurred in connection therewith. You and Company also agree that if informal means of dispute resolution are used, all communication shall remain privileged and confidential, and is not subject to discovery or admissible in evidence unless expressly waived or precluded under applicable law.
(c) THE PARTIES ACKNOWLEDGE AND AGREE THAT ANY SUCH CLAIMS SHALL BE BROUGHT SOLELY IN THE PARTY'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING, OR PRIVATE ATTORNEY GENERAL CAPACITY. THE PARTIES FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL. ANY CONTROVERSY CONCERNING WHETHER A DISPUTE IS ARBITRABLE SHALL BE DETERMINED BY THE ARBITRATOR AND NOT BY ANY COURT. THIS ARBITRATION CONTRACT IS MADE PURSUANT TO A TRANSACTION IN INTERSTATE COMMERCE AND ITS INTERPRETATION, APPLICATION, ENFORCEMENT AND PROCEEDINGS HEREUNDER SHALL BE GOVERNED SOLELY BY THE FEDERAL ARBITRATION ACT ("FAA") AND AAA RULES (AS DEFINED BELOW).
(d) The following procedures shall apply: In the event a party elects to proceed with binding arbitration, it shall first provide written notice thereof to the other party by registered or certified mail and shall describe in such notice, with reasonable particularity, the nature and basis of such claim(s) and the total monetary amount of the claim(s). Within thirty (30) days of receipt of such notice, the party receiving notice of the claim(s) shall provide a written response (email shall suffice) which, with reasonable particularity, sets forth its position concerning the claim. If the parties are unable to resolve the dispute arising from the claim(s) by good faith negotiations to be conducted within the thirty (30)-day period following such written response, either of them may initiate binding arbitration pursuant to the terms and conditions set forth herein. The arbitration shall be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA") and will be administered by the AAA. If the AAA is unavailable or refuses to arbitrate the parties' dispute for any reason, the arbitration shall be administered and conducted by a widely-recognized arbitration organization that is mutually agreeable to the parties, but neither party shall unreasonably withhold their consent. The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall take place in New York County, New York but may proceed telephonically in the event the total amount of the claim does not exceed Two Thousand Five Hundred ($2,500) U.S. dollars (if the claimant so chooses). BY AGREEING TO THESE TERMS, YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT, INCLUDING YOUR RIGHT TO A JURY TRIAL. Arbitration is more informal than a court trial; however, an arbitrator can award the same relief that a court can award.
(e) Separate and apart from the agreement to arbitrate set forth above in Sections 12 (b) through (d) herein, the parties hereby independently waive any right to bring or participate in any class action in any way related to, or arising from, this Agreement. You acknowledge that this class action waiver is material and essential to the arbitration of any disputes between the parties and is non-severable from the Agreement to arbitrate claims. If any portion of this class action waiver is limited, voided, or cannot be enforced, the parties' agreement to arbitrate shall not be null and void. YOU UNDERSTAND THAT BY AGREEING TO THESE TERMS, WHICH CONTAINS THIS CLASS ACTION WAIVER, YOU MAY ONLY BRING CLAIMS AGAINST THE COMPANY, ITS AGENTS, OFFICERS, SHAREHOLDERS, MEMBERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS AND/OR ASSIGNS IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. IF YOU DO NOT AGREE TO THIS ARBITRATION AGREEMENT AND CLASS ACTION WAIVER, YOU MUST TELL US IN WRITING AND NOT USE OUR SITES, APPS OR SERVICE.
All legal notices pursuant to this Agreement shall be in writing and shall be given via mail to: The Retina Group of New York, PLLC, 400 South Oyster Bay Road, Suite 305, Hicksville, NY 11801. By using the Website, You agree that any notice due herein that Company sends You electronically shall satisfy any legal communication or notification requirement. The date of any notice hereunder shall be determined by the date of a party’s receipt of such notice.
- AMENDING THIS AGREEMENT
All terms and conditions herein are effective as of October 1, 2010, and were last updated on October 25, 2017. Company reserves the exclusive right to modify, alter, amend, or update the this Agreement at any time without notice to You in Company’s sole and absolute discretion, and such newly amended Agreement shall immediately take effect upon Company posting it on the Website. By continuing to access the Website, You acknowledge and agree that You shall automatically become bound by the then-current version of the Agreement.