These Terms affect your legal rights, responsibilities and obligations and govern your use of the Services. They are legally binding, limit MHM’ liability to you and require you to indemnify us and to settle certain disputes through individual arbitration. If you do not wish to be bound by these Terms and any Additional Terms, do not use the Services and uninstall Service downloads and applications.
In some instances, additional or different terms, posted on the Services, apply to your use of certain parts of the Services (individually and collectively “Additional Terms”). In addition, our service agreements with employers and, in some cases, with employees or individuals, whether executed online or offline, shall be treated as Additional Terms for the Services as applied to the Services used in connection with those program services. To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless they expressly state otherwise.
Updates to these Terms and Additional Terms
We may prospectively change these Terms and Additional Terms by posting new or changed Services terms as more fully explained here.
We have summarized some (but not all) of the main topics of these Terms below. The complete provisions, and not the headings or summaries govern.
- Grants and Limitations of Rights
- We only grant you a limited revocable license to use the Services subject to rules and limitations. More
- Your use of our Services is subject to various restrictions designed to protect the Services and users. More
- Limitations on Your Remedies
- We disclaim most warranties and provide the Services “As Is.” More
- Our liability is greatly limited. More
- Your equitable or injunctive relief rights are limited. More
- Dispute Resolution
- As permitted by applicable law, you agree to arbitrate disputes and waive jury trial and class actions. More
- Availability of Services
- We may change or discontinue our Services, or your right to access them, in whole or in part at any time, without advance notice or liability. More Our Services are intended for access from and use in the U.S.A. More
As permitted by applicable law,
1. OWNERSHIP AND YOUR RIGHTS TO USE THE SERVICES AND CONTENT.
A. Ownership. The Services and all of its content (“Content”), including all copyrights, patents, trademarks, service marks, trade names and all other intellectual property rights therein (“Intellectual Property”), are owned or controlled by MHM, our licensors, and certain other third parties. All right, title, and interest in and to the Content and Intellectual Property available via the Services is the property of MHM, our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. MHM owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Services.
B. Your Rights to Use the Services and Content.
(i) Your right to use the Services and Content is subject to your strict compliance with these Terms and applicable Additional Terms. Your right to access and use the Services and the Intellectual Property shall automatically terminate upon any violations. These rights are non-exclusive, limited, and revocable by us at any time in our sole discretion without advance notice or liability. As your right to access and use the Services and the Content is personal to you, you may not assign nor transfer your right; any attempt to do so is void. You may, for your personal, non-commercial, lawful use only (collectively, the following are the “MHM Licensed Elements”):
(1) Display, view, use, and play the Content on a computer, mobile or other internet enabled or permitted device (“Device”) and/or print one copy of the Content (excluding source and object code in raw form or otherwise) as it is displayed to you;
(2) Stream the Content using any of the widgets and/or other digital streaming internet video players, if any, provided on the Online Services;
(3) Subject to any applicable Additional Terms, if the Online Services includes a “Send to Friend,” “Contact Employer,” social media sharing or similar tool that allows you to initiate and send to one or more of your contacts a communication that includes a message or other content, or to post our Content to third-party services or your own site or online service, and the tool is operational, use the tool to do so; provided, however, that you do not do so in any manner that violates applicable law or third-party rights or reflects negatively on us, and only send to recipients you have permission to contact;
(4) If the Online Services includes a “Download” link next to a piece of Content (including, without limitation, an image, an icon, a wallpaper, a music track, a video, or an RSS feed), you may only download a single copy of such Content to a single Device;
(5) Download, install and use one copy of any software, including apps, that we make available on or through the Online Services (“Software”) on your Device in machine-executable object code form only and make one additional copy for back-up purposes; provided, however, that you understand and agree that (i) by allowing you to download the Software, MHM does not transfer title to the Software to you (i.e., you own the medium on which the Software is recorded, but the Software's owner (which may be MHM and/or its third-party Software licensor) will retain full and complete title to such Software); (ii) you may not copy, modify, adapt, translate into any language, distribute, or create derivative works based on the Software, except as expressly authorized in these Terms or applicable Additional Terms, without the prior written consent of MHM; (iii) you may not assign, rent, lease, or lend the Software to any person or entity and any attempt by you to sublicense, transfer, or assign the Software will be void and of no effect; and (iv) you may not decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Software by any means whatsoever, except to the extent the foregoing restriction is prohibited by applicable law;
(6) If made available to you, obtain a registered personal account (and/or related username and password) on the Online Services and interact with the Online Services in connection therewith;
(7) Link to the Online Services from a website or other online service, so long as: (a) the links only incorporate text, and do not use any MHM logos, or images, (b) the links and the content on your website do not suggest any affiliation with MHM or cause any other confusion, and (c) the links and the content on your website do not portray MHM or its products or services in a false, misleading, derogatory, or otherwise offensive manner, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third-party or are otherwise objectionable to MHM. MHM reserves the right to suspend or prohibit linking to the Online Services for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third-party; and
(8) Use any other functionality expressly provided by MHM on or through the Online Services for use by users, subject to these Terms (including, without limitation, functionality to create and/or post User-Generated Content (as defined below)) and any applicable Additional Terms.
D. Rights of Others. In using the Services, you must respect the intellectual property and rights of others and MHM. Your unauthorized use of Content may violate the rights of others and applicable laws, and may result in your civil and criminal liability. If you believe that your work has been infringed via the Services, see Section 5 below.
E. Reservation of all Rights Not Granted as to Content and Service. These Terms and any applicable Additional Terms include only narrow, limited grants of rights to use and access the Services and Content. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU ARE RESERVED BY MHM AND ITS LICENSORS AND OTHER THIRD PARTIES. Any unauthorized use of any Content or the Services for any purpose is prohibited.
2. CONTENT YOU SUBMIT.
A. User-Generated Content.
(i) General. In some contexts, MHM offers users of the Online Services the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Online Services, or on or in response to our pages or posts on any third-party platforms or in connection with any of our promotions by any media or manner, or otherwise submit to us (e.g., on our Facebook or other social media pages, in response to our tweets, through a sweepstakes or contest, or by otherwise sending it to us) (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, responses, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, but excluding MHM Licensed Elements included therein, “User-Generated Content”or “UGC”). You may submit UGC through your profile or account, forums, blogs, message boards, social networking environments, content creation and posting tools, benefits information submission features, contact us tools, email, and other communications functionality. Except to the extent of the rights and license you grant in these Terms and, subject to any applicable Additional Terms, you retain whatever legally cognizable right, title, and interest that you have in your UGC.
In your communications with MHM, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for websites, apps, software, products, services, or otherwise (collectively, “Unsolicited Ideas and Materials”). Any Unsolicited Ideas and Materials you submit are deemed UGC and licensed to us as set forth below. In addition, MHM retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. MHM’ receipt of your Unsolicited Ideas and Materials is not an admission by MHM of their novelty, priority, or originality, and it does not impair MHM’ right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
(v) Representations and Warranties Related to Your UGC. Each time you submit any UGC, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any UGC you submit, and that, as to that UGC, (a) you are the sole author and owner of the intellectual property and other rights to the UGC, or you have a lawful right to submit the UGC and grant MHM the rights to it that you are granting by these Terms and any applicable Additional Terms, all without any MHM obligation to obtain consent of any third-party and without creating any obligation or liability of MHM; (b) the UGC is accurate; (c) the UGC does not and, as to MHM’ permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or other right of any third-party; and (d) the UGC will not violate these Terms or any applicable Additional Terms, or cause injury or harm to any person.
B. Appropriate Content and Alerting Us of Violations. We expect UGC to be appropriate for a general audience, but do not undertake to monitor it, and you consent to potentially encountering content you find offensive or inappropriate. If you discover any content that violates these Terms or any applicable Additional Terms, then you may report it here. For alleged infringements of intellectual property rights, see Section 5.
3. SERVICE AND CONTENT USE RESTRICTIONS.
A. Service Use Restrictions. Use of the Services is limited to users that are at least the age of majority where they reside and have the legal capacity to contract. You agree that you will not: (i) use the Services for any political or competitive purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting our pricing, and/or selling products or services); (ii) use any meta tags or any other “hidden text” utilizing any of our Intellectual Property; (iii) engage in any activities through or in connection with the Services that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third-party, or are otherwise objectionable to MHM; (iv) decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Services by any means whatsoever or modify any Services source or object code or any Software or other products, services, or processes accessible through any portion of the Services; (v) engage in any activity that interferes with a user’s access to the Services or the proper operation of the Services, or otherwise causes harm to the Services, MHM, or other users of the Services; (vi) interfere with or circumvent any security feature (including any digital rights management mechanism, device or other Content protection or access control measure) of the Services or any feature that restricts or enforces limitations on use of or access to the Services, the Content, or the UGC; (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Services, including email addresses, without the express consent of such users); (viii) attempt to gain unauthorized access to the Services, other computer systems or networks connected to the Services, through password mining or any other means; or (ix) otherwise violate these Terms or any applicable Additional Terms.
B. Content Use Restrictions. You also agree that, in using the Services, you: (i) will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser, and excluding your own UGC) on the Services by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) will not frame or utilize framing techniques to enclose any such content (including any images, text, or page layout); (iii) will keep intact all Trademark, copyright, and other Intellectual Property and other notices contained in such content; (iv) will not use such content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) will not make any modifications to such content (other than to the extent of your specifically permitted use of the MHM Licensed Elements, if applicable); (vi) will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third-party or on any third-party application or website, or otherwise use or exploit such content in any way for any purpose except as specifically permitted by these Terms or any applicable Additional Terms or with the prior written consent of an officer of MHM or, in the case of content from a licensor, the owner of the content; and (vii) will not insert any code or product to manipulate such content in any way that adversely affects any user experience, the Services, or any MHM service.
C. Availability of Service and Content. MHM, in its sole discretion without advance notice or liability, may immediately suspend or terminate the availability of the Services and/or Content (and any elements and features of them), in whole or in part, for any reason, in MHM’ sole discretion, and without advance notice or liability.
4. CREATING AN ACCOUNT.
A. You may have the ability to create an account with us and make changes to it from time to time. If you register with us or create an account, you are solely responsible and liable for the security and confidentiality of your access credentials such as user name and password (collectively "Access ID") and for restricting access to your Device and for all activity under your account, and you agree to contact us at 800-ASK-CBIZ or here IMMEDIATELY if you have any reason to believe that another person has obtained or has the means to obtain your Access ID has accessed or used your account or profile without authorization, or you suspect any other breach of security, but you will remain responsible for any unauthorized use thereafter. You agree that you will not reveal your Access ID to any other person, or take actions that could cause your Access ID to be revealed to any person, whether intentional or not (e.g., writing down your Access ID in a document easily seen by others, using an unsecured electronic mailing to transmit your Access ID, providing your Access ID to your administrative assistant to check your account balance). Do not reveal your Access ID to any person who contacts you (e.g., who calls you or sends you an electronic mail) even if that person claims to be from MHM. Our customer service agents may request your Access ID to verify your identity, but only on a telephone call that you have placed to us. If we believe that someone else other than you is accessing or modifying your account information or calling us claiming to be you, we have the right to take action in our sole discretion to protect your account, including deactivating your account and/or notifying you.
B. Accounts may only be set up by you or your authorized representative who is of the age of majority. We do not review accounts for authenticity, and are not responsible for any unauthorized accounts that may appear on the Online Services. You agree that you will not sell, transfer, or assign your account or any account rights.
C. You are solely responsible for your registration information and for updating and maintaining it. Without limitation, you agree to provide true, accurate, and complete information in your profile, and to maintain and update it as applicable. If you provide us with an email address, then you consent to the transmission of related information via unsecured electronic mail. If you provide us a phone number, you consent to our calling or texting you at such number regarding the Services and any other MHM services you receive or request information regarding. You consent to such calls or texts via use of an autodialer and/or prerecorded message, subject to your opt-out options described in Section 8.C. Message and data rates may apply and not all devices and carriers may be supported. Text and call notifications may be subject to additional terms and consent when you provide your number, which will be Additional Terms.
D. You agree not to impersonate any person or use a name that you are not authorized to use. If any information you provide is untrue, inaccurate, not current, or incomplete, without limiting other remedies, we have the right to terminate your use of the Services and any other MHM services and to recover from you any costs or losses incurred as a direct or indirect result of the inaccurate or incomplete information. You authorize MHM to make any inquiries it considers necessary to validate your profile information.
5. PROCEDURE FOR ALLEGING COPYRIGHT INFRINGEMENT.
If you are a copyright owner who would like to send us a notice pursuant to the Digital Millennium Copyright Act (“DMCA”) to identify content or material posted on the Online Services that is infringing that you would like removed from our Online Services, or if you are a user whose work has been removed in response to such a notice of infringement and would like to file a DMCA counter-notice, you may submit such notice to us by following the instructions here.
6. NOTICES, QUESTIONS, AND CUSTOMER SERVICE.
You agree that we may give you notices or otherwise respond to you by mail or to your email (if we have it on file) or in any other manner reasonably elected by us. All legal notices to us must be sent to: firstname.lastname@example.org (Attn: Legal Counsel/Privacy). If you have a question regarding the Services, you may contact MHM Customer Service – for prompt and accurate service please utilize the number associated with the notice or correspondence and or contact your employer/plan administrator for the appropriate number. You acknowledge that we have no obligation to provide you with customer support of any kind and that customer service personnel cannot change or waive Terms or applicable Additional Terms.
7. SPECIFICATIONS; PRICING; FEES; TYPOGRAPHICAL ERRORS.
We strive to accurately describe our services offered via the Services; however, we do not warrant that such Content on the Services is complete, accurate, reliable, current, or error-free. Additional Terms may apply.
8. CONNECTIVITY AND COMMUNICATIONS.
A. Devices and Connectivity. We do not warrant that the Software provided by MHM to utilize the Services or any other software used in connection with the Services will be compatible with other third-party software nor do we warrant that operation of the Services and the associated software will not damage or disrupt other software or hardware. You are responsible for obtaining and maintaining all Devices and other equipment and software, and the security thereof, and all internet service provider, mobile service, and other services needed for your access to and use of the Services and you will be responsible for all charges related to them. You further agree to look solely to the entity that manufactured and/or sold you the Device for any issues related to the Device and its compatibility with the Services and/or the Software. You are responsible for use of your Device in compliance with all applicable third party (e.g., manufacturer and carrier) obligations and restrictions shall not use the Services and/or the Software in a manner inconsistent therewith.
By using the Online Services, you agree that MHM may change, alter, or modify the settings or configurations on your Device in order to allow for or optimize your use of the Online Services (e.g., save content, access data, enable services, etc.). For instance, subject to any permission settings you choose, our app may access and read accounts, data and/or content on your Device, add content to your Device, and change settings of your Device, for reasons such as allowing you to submit receipts for reimbursement and send other documents to us, enabling phone call, push notification and/or SMS text notices; saving app images, sound files and writing usage logs to the Device; sending messages you initiate; sending and receiving data needed for app operations; and to provide you notice when you are not connected to a network. You consent to these activities by installing the app or otherwise using the Online Services. Your Device settings may enable you to disable, change or limit some of these activities, and you can disable the app by uninstalling the app. When using the Online Services, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Online Services.
You must be connected to the Internet for the entire time you are using the Online Services, the cost and provision of which is your responsibility. The quality of the display of the Content may vary from device to device, and may be affected by a variety of factors, such as your Device, your location, the bandwidth available through and/or speed of your Internet connection. MHM makes no representations or warranties about the quality of your Service experience on your Device or the ability of any Device to access or display the Content. In order to stream or download Content, your equipment must meet certain system requirements, including but not limited to having high-speed Internet access
Any issues related to the Services and/or the Software, including any system requirements, are covered and limited by this Agreement. Please refer to the Disclaimer of Representations and Warranties and Limitations of Our Liability provisions set forth in these Terms.
B. Communications Options. If you or your employer/plan sponsor provides us with an address, phone number, and/or e-mail, you consent to receive communications from us at such address or phone as set forth in Section 4.C or any applicable Additional Terms, subject to the following communications options:
(i)Text Messages: You may be given opportunities to subscribe to various text marketing or other text messaging programs and by doing so, you consent to receive ongoing text alerts (including by auto-dialers) from us related to our various businesses and affiliates, which may include information about employers/plan sponsors, except that if the scope of your consent for a particular subscription is limited that subscription will be so limited. Such consent is not required to purchase any product or service. For each subscription, text “HELP” for help and text “STOP” to terminate (i.e., opt-out) that subscription. Subsequent or different subscriptions will be unaffected by an opt-out. You consent to receive a text confirming any opt-out as well as non-marketing administrative or transactional messages. For subscriptions to recurring text messages, you may receive up to the number of text messages per month specified in your consent, or to which you later consent. Alerts auto-renew unless otherwise specified when you consented. You understand that we will send mobile text messages using automated technology. If you subscribe to text messages you represent that you are eighteen (18) years of age or older, or have obtained parental consent. Standard message, data and other fees may be charged by your carrier, and carriers may deduct charges from pre-paid amounts or data allowances, for which you are responsible. Contact your carrier for details. Not all phones and/or carriers are supported.
(ii)Email Messages: You may cancel or modify our email marketing communications you may receive from us by following the instructions contained within our promotional emails. This will not affect subsequent subscriptions and if your opt-out is limited to certain types of emails the opt-out will be so limited. Please note that we reserve the right to send you certain communications relating to your account or use of our Services, such as administrative and service announcements and these transactional account messages may be unaffected if you choose to opt-out from receiving our marketing communications.
9. ARBITRATION AND DISPUTE TERMS.
This Section is deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and MHM agree that we intend that this Section satisfies the “writing” requirement of the Federal Arbitration Act. This Section can only be amended by mutual agreement.
A. First – Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Services, including without limitation, the Content, your UGC, these Terms, or any Additional Terms, our privacy practices related to the Services, and offers made on and transactions and communications conducted through the Services (collectively, “Dispute”), or to any of MHM’ actual or alleged intellectual property rights (an “Excluded Dispute”), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 9.A. Your notice to us must be sent to: Mayer Hoffman McCann P.C., email@example.com (Attn: Legal Counsel/Privacy). Subject to Section 9.C, for a period of sixty (60) days from the date of receipt of notice from the other party, MHM and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or MHM to resolve the Dispute or Excluded Dispute on terms with respect to which you and MHM, in each of our sole discretion, are not comfortable.
B. Binding Arbitration. If we cannot resolve a Dispute as set forth in Section 9.A (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then, subject to Section 9.C and as permitted by applicable law, ANY AND ALL DISPUTES ARISING BETWEEN YOU AND MHM (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT – INCLUDING, BUT NOT LIMITED TO FRAUD, ANY OTHER INTENTIONAL TORT, OR NEGLIGENCE – COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT, SERVICE OR ADVERTISING CONNECTED TO THE PROVISION OR USE OF THE SERVICES. The Federal Arbitration Act, not state law, shall govern the arbitrability of all disputes between MHM and you regarding these Terms (and any Additional Terms) and the Services. MHM and you agree, however, that Ohio or federal law shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and MHM, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to Ohio’s choice of law principles that might apply other laws.
Disputes will be resolved solely by binding arbitration in accordance with the then-current commercial Arbitration Rules of the American Arbitration Association (“AAA”), except that the then current consumer dispute rules will apply to consumers. If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to arbitrate the Dispute then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of MHM consent to in writing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require MHM to pay a greater portion or all of such fees and costs in order for this Section 9 to be enforceable, then MHM will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitrator will apply applicable law and the provisions of these Terms and any Additional Terms, will be bound by these Terms and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. All issues are for the arbitrator to decide. This arbitration provision shall survive termination of these Terms or the Services.
C. Injunctive Relief. The foregoing provisions of this Section 9 will not apply to any legal action taken by MHM or you to seek an injunction or other equitable relief in connection with, any potential loss, cost, or damage (or any potential loss, cost, or damage) relating to the Services, any Content, your breach of these Terms of applicable Additional Terms and/or MHM’ intellectual property rights (including such MHM may claim that may be in dispute), MHM’ operations, and/or MHM’ products or services; provided however, your rights are subject to the following:
AS PERMITTED BY APPLICABLE LAW, IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICES, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE DEEMED IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, UGC, BENEFIT PROGRAMS, SERVICES, OR INTELLECTUAL PROPERTY OFFERED, OWNED, LICENSED, USED OR CONTROLLED BY MHM (INCLUDING YOUR LICENSED UGC) OR A LICENSOR OF MHM. HOWEVER, THIS SECTION 9.C SHALL NOT LIMIT YOUR ABILITY TO SEEK OTHER EQUITABLE RELIEF, SUBJECT TO THESE TERMS AND ANY APPLICABLE ADDITIONAL TERMS.
D. No Class Action Matters and Jury Waiver. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. YOU AND MHM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. There shall be no right or authority for any Dispute, or Excluded Dispute, to be determined on a class action basis or on any basis involving Disputes, or Excluded Disputes, brought to a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 9.B to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 9.E. As permitted by applicable law, the parties each waive any right to trial by jury.
E. Federal and State Courts. Except to the extent that arbitration is required in Section 9.B, and except as to the enforcement of any arbitration decision or award, to the extent permitted by applicable law, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state court in Cuyahoga county, or Northern District Court in Cleveland, Ohio. Accordingly, you and MHM consent to the exclusive personal jurisdiction and venue of such courts for such matters. The court will apply the laws of Ohio without regard to conflict of law provisions that might apply other laws.
F. Small Claims Matters Are Excluded From Arbitration Requirement. Notwithstanding the foregoing, either of us may bring a qualifying claim of Disputes (but not Excluded Disputes) in small claims court, subject to Sections 9.D and 9.E.
The provisions of this Section shall supersede any inconsistent provisions of any prior agreement between the parties. This Section 9 shall remain in full force and effect notwithstanding any termination of your use of the Services or these Terms.
10. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES.
A. AS PERMITTED BY APPLICABLE LAW, YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR SOLE RISK AND THE SERVICES IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. To the fullest extent permissible by applicable law, MHM and their direct and indirect subsidiaries, affiliates, and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, “MHM Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, in connection with, or otherwise directly or indirectly related to, without limitation, the Services, Content, MHM Licensed Elements, UGC or other MHM services, except as set forth in subsection C, below.
B. EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN, OR IN APPLICABLE ADDITIONAL TERMS, OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, MHM PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
C. NOTWITHSTANDING THE FOREGOING, THIS SECTION DOES NOT EXPAND OR LIMIT (I) MHM PARTIES’ LIABILITY FOR PERSONAL INJURY TO YOU CAUSED BY MHM PARTIES TO THE EXTENT NOT WAIVABLE OR WHICH CANNOT BE LIMITED UNDER APPLICABLE LAW; OR (II) ANY CAUSE OF ACTION YOU MAY HAVE AGAINST MHM PARTIES THAT IS NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW.
11. LIMITATIONS OF OUR LIABILITY.
A. AS PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY MHM PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages of any kind, including without limitation loss of profits, in connection with, or otherwise directly or indirectly related to, without limitation, the Services, Content, MHM Licensed Elements, UGC or other MHM products or services.
AS PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MHM PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICES AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT GREATER THAN AN AMOUNT YOU COMPENSATE MHM FOR SERVICES RENDERED BY MHM IN CONNECTION WITH THE MATTERS THAT UNDERLIE THE CLAIM(S) (IF ANY) OR ONE HUNDRED DOLLARS ($100), WHICHEVER IS LESS.
B. The foregoing limitations of liability will apply even if any of the events or circumstances were foreseeable and even if MHM Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Services).
C. NOTWITHSTANDING THE FOREGOING, THIS SECTION DOES NOT EXPAND OR LIMIT (I) MHM PARTIES’ LIABILITY FOR PERSONAL INJURY TO YOU CAUSED BY MHM PARTIES TO THE EXTENT NOT WAIVABLE OR WHICH CANNOT BE LIMITED UNDER APPLICABLE LAW; OR (II) ANY CAUSE OF ACTION YOU MAY HAVE AGAINST MHM PARTIES THAT IS NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW.
12. UPDATES TO TERMS.
It is your responsibility to review the posted Terms and any applicable Additional Terms each time you use the Services (at least prior to each transaction or submission). The current version of this Agreement can be viewed at any time under the Help tab on the website (after you enter your username and password). EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SERVICES YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF NEW TERMS BY POSTING THEM ON THE SERVICES (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SERVICES AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE NEW TERMS FOR YOUR NEW USE AND TRANSACTIONS. Any new Terms or Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. In the event any notice to you of new, revised, or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You can reject any new, revised or additional terms by discontinuing use of the Services.
13. GENERAL PROVISIONS.
A. MHM’s Consent or Approval. As to any provision in these Terms or any applicable Additional Terms that grants MHM a right of consent or approval, or permits MHM to exercise a right in its “sole discretion,” MHM may exercise that right in its sole and absolute discretion. No MHM consent or approval may be deemed to have been granted by MHM without being in writing and signed by an officer of MHM.
C. Operation of Service; Availability of Products and Services; International Issues. MHM controls and operates the Services from the U.S.A., and makes no representation that the Services is appropriate or available for use beyond the U.S.A. If you use the Services from other locations, you are doing so on your own initiative and responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply.
D. Export Controls. You are responsible for complying with all applicable trade regulations and laws both foreign and domestic. Except as authorized by U.S. law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions.
E. Severability; Interpretation. If any provision of these Terms, or any applicable Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the applicable Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the applicable Additional Terms. To the extent permitted by applicable law, you agree to waive and will waive, any applicable statutory and common law that may permit a contract to be construed against its drafter.
G. Assignment. MHM may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of MHM.
H. Complete Agreement; No Waiver. These Terms, and any applicable Additional Terms, reflect our complete agreement regarding the Services and supersede any prior agreements, representations, warranties, assurances or discussion related to the Services. Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or MHM in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
I. Electronic Delivery and Communication. By using this Service, you agree to form a contractual relationship with your employer/plan sponsor and/or MHM using electronics means. To the fullest extent permitted by applicable law, this Agreement and any other agreements, notices or other communications regarding your account and/or your use of the Online Services ("Communications"), may be provided to you electronically and you agree to receive Communications in an electronic form. Electronic Communications may be posted on the pages within the MHM website and/or delivered to your electronic mail address. All Communications in either electronic or paper format will be considered to be in "writing," and to have been received no later than five (5) business days after posting or dissemination, whether or not you have received or retrieved the Communication. We reserve the right but assume no obligation to provide Communications in paper format. Your consent to receive Communications electronically is valid until you revoke your consent by terminating this Agreement.
Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 1625 North Market Blvd., Suite N 112, Sacramento, California, 95834, or by telephone at (916) 445-1254. Hearing-impaired users can reach the Complaint Assistance Unit at TDD (800) 326-2297 or TDD (916) 322-1700. Their website is located at: http://www.dca.ca.gov.
Any California residents under the age of eighteen (18) who have registered to use the Services, and who have posted content or information on the Online Services, can request that such information be removed from the Services by contacting us at Mayer Hoffman McCann P.C., firstname.lastname@example.org (Attn: Legal Counsel/Privacy) making such a request, stating that they personally posted such content or information and detailing where the content or information is posted. We will make reasonable good faith efforts to remove the post from prospective public view or anonymize it so the minor cannot be individually identified. This removal process cannot ensure complete or comprehensive removal. For instance, third parties may have republished the post and archived copies of it may be stored by search engines and others that we do not control.
Procedure For Alleging Copyright Infringement
A. DMCA Notice. MHM asks our users to respect the intellectual property rights of others.It is our policy to respond appropriately to clear notices of alleged copyright infringement, as set forth more fully below.In MHM’ sole discretion, MHM may remove content that may be infringing on another person’s intellectual property rights with or without notice to the potential infringer. In accordance with the U.S. Digital Millennium Copyright Act (“DMCA”) and other applicable law, MHM has adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers.
B. If we remove or disable access in response to a DMCA Copyright Infringement Notice, we will make a good faith attempt to contact the owner or administrator of the affected content so that they may make a counter-notification.If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Online Services, then you may send us a written notice that includes all of the following:
(i) a legend or subject line that says: “DMCA Copyright Infringement Notice”;
(ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
(iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the full URL of the page(s) on the Services on which the material appears);
(iv) your full name, address, telephone number, and email address;
(v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
(vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and
(vii) your electronic or physical signature.
MHM will only respond to DMCA Notices that it receives by mail, email, or facsimile at the addresses below:
By Mail: Mayer Hoffman McCann P.C., (Attn: Legal Counsel/Privacy)
700 W. 47th Street
Kansas City, MO 64112
By Email: [email@example.com]
By Facsimile: 816-897-1385
For more information call: 816-945-5604
It is often difficult to determine if your copyright has been infringed. MHM may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and MHM may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
We may send the information that you provide in your notice to the person who provided the allegedly infringing work.That person may elect to send us a DMCA Counter-Notification.
Without limiting MHM’ other rights, MHM may, in appropriate circumstances, terminate a repeat infringer’s access to the Online Services and any other website owned or operated by MHM.
C. Counter-Notification. If access to the Online Services to a work that you submitted to MHM is disabled or the work is removed as a result of a DMCA Copyright Infringement Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above.Your DMCA Counter-Notification should contain the following information:
(i) a legend or subject line that says: “DMCA Counter-Notification”;
(ii) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the full URL of the page(s) on the Online Services from which the material was removed or access to it disabled);
(iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
(iv) your full name, address, telephone number, email address, and the username of your Account;
(v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Northern District of Ohio), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
(vi) your electronic or physical signature.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification.However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Services.You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
Terms Applicable For Apple iOS
(i) To the extent that you are accessing the Online Services through an Apple mobile application, you acknowledge that these Terms are entered into between you and MHM and, that Apple, Inc. (“Apple”) is not a party to these Terms other than as third-party beneficiary as contemplated below.
(iii) You acknowledge that MHM, and not Apple, is responsible for providing the Online Services and Content thereof.
(iv) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Online Services.
(v) To the maximum extent not prohibited by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Online Services.
(vi) Notwithstanding anything to the contrary herein, and subject to the terms and conditions of the Terms, you acknowledge that, solely as between Apple and MHM, MHM, and not Apple is responsible for addressing any claims you may have relating to the Online Services, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims; (ii) any claim that the Online Services fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(vii) Further, you agree that if the Online Services, or your possession and use of the Online Services, infringes on a third-party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(viii) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third-party beneficiary thereof.
(ix) When using the Online Services, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Online Services.
(x) Your use of real time route guidance on the Online Services (if any) is at your sole risk. Location data may not be accurate.