TERMS OF SERVICE FOR PROVIDERS

Last Updated:  1st day of April, 2021

These terms of use for providers (“Terms”) are a legal agreement between you, both in your individual capacity and as an authorized representative of your health care practice (“you”), and Elixir Health, LLC dba ArtemisCalendar (collectively, “Elixir”, or “we”, “us”, or “our”) and govern your use of the ArtemisCalendar application, whether accessed and used through any Elixir website or mobile property, and including all interactive features and communications we make available in connection with the application (collectively, the “App”). Signing up for an account with the App constitutes acceptance of these Terms. If you do not accept these Terms, then you may not use the App.
 

The App is intended to be used between you and your patients for facilitating communications regarding hormone therapy treatment.  The App does not provide or constitute any health care services itself. The App is not intended to be used without an existing patient relationship. You should only use the App with a patient for whom you have prescribed hormone replacement therapy and who has requested that you use the App. The App cannot and is not intended to replace the relationship between you and your patients.  The App is not a substitute for, and should not affect, your professional judgment. The App is intended as a convenient digital tool for facilitating communication between you and your patient.


DO NOT USE THE APP IN AN EMERGENCY. DO NOT ENCOURAGE YOUR PATIENTS TO USE THE APP IN AN EMERGENCY. YOU SHOULD INSTRUCT YOUR PATIENTS TO CALL 911 (WHERE 911 SERVICE IS AVAILABLE) OR GO TO THE NEAREST EMERGENCY ROOM IF THEY BELIEVE THAT THEY HAVE ANY CONDITION, ILLNESS, OR INJURY THAT MAY BE SERIOUS OR LIFE-THREATENING.   
 

THE APP AND ANY INFORMATION, CONTENT OR MATERIALS AVAILABLE TO YOU ON OR THROUGH THE APP (“CONTENT”) ARE NOT INTENDED IN ANY WAY TO BE A SUBSTITUTE FOR IN-PERSON OR OTHER DIRECT CONSULTATION WITH YOUR PATIENTS. ANY INFORMATION PROVIDED THROUGH THE APP ABOUT TESTS, CONDITIONS, DIAGNOSES, TREATMENTS, OR ANY OTHER INFORMATION IS NOT MEDICAL OR HEALTH CARE ADVICE FROM ELIXIR. THE APP IS ONE MEANS FOR COMMUNICATING WITH YOUR PATIENTS.  IF YOU DO NOT RECEIVE A RESPONSE IN A TIMELY WAY, PLEASE DIRECTLY CONTACT YOUR PATIENT BY TELEPHONE OR ANOTHER MODE OF COMMUNICATION.   


The personal, health and other information available through the App is provided by your patients to you.  Inquiries, answers and responses are not provided by Elixir.  Any information available on or through the App should not be considered medical advice. You always should talk to your patients for additional information you may need for diagnosis and treatment, including information regarding which drugs or treatment may be appropriate. None of the information on or that you access through the App should be understood as a representation or warranty that any particular drug or treatment is safe, appropriate, or effective.  None of the information on or available through the App is meant to replace your medical records or to be a record of your patient’s medical history.  Any patient information you access through the App may not be accurate or up-to-date, and you may need additional records or information regarding your patients, their health, and their medical history. Additionally, the patient may choose to have information about the patient permanently deleted from the App.
 

  1. Changes.  We may change these Terms at any time in the future and in our sole discretion. If we make changes to these Terms, we will notify you of the changes. Our notice to you may include sending a message to the email address associated with your account or providing an update notice in the App next time you sign in. We also will update the "Last Updated" date at the top of these Terms when we make changes.

    Your continued use of the App will confirm your acceptance of the revised Terms. If you do not agree to the revised Terms, you must stop using the App and close your account from the Settings page. We encourage you to review the Terms from time to time to ensure you understand the terms and conditions that apply to your access to, and use of, the App.

     

  2. Eligibility.  You must be 18 years of age or older to register and use the App. You certify that you are 18 years old and agree to be bound by these Terms. The App is intended for, and should only be used, for use by persons in the United States. 
     

  3. Data; Privacy. Data collection and use, including collection and use of personally identifiable information about you and your patients and health information about your patients, is governed by the Authorization, Consent, and Release to Use and Disclose Health Information (“Consent”), which is electronically agreed to by your patients who have signed up for the App and is located at https://www.artemiscalendar.com/hipaa-consent, and Elixir’s Privacy Policy, located at https://www.artemiscalendar.com/privacy-policy, each of which is incorporated into and is a part of these Terms. Elixir may use, disclose, and share information and communications between and among you and your patient, including medical advice and personal, health, and other information that you submit to the App (“Submissions”) and information submitted to the App by your patient, as authorized under your patient’s Consent.  You are solely responsible for complying with all applicable laws, rules and regulations, including privacy and data protection laws, and we recommend that you evaluate whether this consent is sufficient to permit your communications with your patients through the App. It is your responsibility to obtain any other necessary or permitted consents, authorizations, or permissions from your patients. We do not guarantee your use of the App or reliance on any patient’s Consent will ensure your compliance with applicable laws. Elixir is not a Covered Entity or a Business Associate under the Health Insurance Portability and Accountability Act of 1996and its implementing regulations, as amended (“HIPAA”).     
     

  4. Access License. Elixir grants you a limited, revocable, non-exclusive, non-transferable license to access and use the App for your internal business use in connection with the provision of your health care services. The App may be used only for facilitating communications between you and your patient regarding hormone therapy replacement treatment. All rights not expressly granted to you herein are expressly reserved by Elixir and its licensor(s).

  5. Restrictions. You will not use the App for any commercial purpose not related to your provision of your health care services to patients who have signed up for the App, including any advertisement, commercial solicitation or promotion of any goods or services, including your health care services.  You will not, in whole or in part: (a) copy the App; (b) modify, adapt, translate, reverse engineer, make alterations, decompile, disassemble, or make derivative works based on the App except as otherwise permitted by law; (c) rent, loan, sub-license, lease, distribute, or attempt to grant any rights to the App to third parties; or (d) permit access to the  App of any kind to any third party or otherwise exploit the App or for any purpose. 
     

  6. Account Registration and Security. You understand that you will need to create an account to have access to and use the App. You will: (a) provide true, accurate, current, and complete information about yourself as prompted by the App's registration or subscription page ("Registration Data"), and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If your medical practice is a separate legal entity, you represent that you have the legal authority to bind that entity to these Terms. If we have reasonable concerns about your Registration Data, we may suspend or terminate your account and refuse any and all current or future use of the App (or any portion thereof).  You are solely responsible for the security and confidentiality of your user name, password and account and for all use of your account.  You will not share your account information or your user name and password with any third party or permit any third party to log on to the App using your account information. You will not use the account of any other person.  You will immediately notify us of any breach of security or unauthorized use of your account. Although we will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Elixir or others due to such unauthorized use. We may provide user billing, account or use records, and related information to others under certain circumstances (such as in response to legal responsibility, lawful process, orders, subpoenas, or warrants, or to protect our rights, customers, or business).
     

  7. Your Health Information; Submissions.  The App allows information sharing and communications between you and your patients.  You understand that information that you and your patients submit to the App will be used, disclosed, and shared through the App between you and your patients and includes names, contact information,  diagnosis, treatment and dosing information, provider notes and instructions, health symptoms, appointment and treatment reminders, and other hormone replacement therapy information.  You represent and warrant that all Submissions are your own data and concern only the patients who have requested that you use the App.  You shall be solely responsible for your own Submissions and the results of disclosing your Submissions to your patients.  
     

  8. Information Available to You.  You may access and use Content, including any information from your patients, solely for your own internal use in connection with the provision of your health care services.  You are responsible for obtaining any necessary permission before reusing any Content that is available on or through the App and for using Content in accordance with all applicable laws, rules and regulations.
     

  9. Your Patients.  You are solely responsible for verifying whether each individual who identifies you to us as their health care provider has an existing patient relationship with you and is a patient for whom you have prescribed hormone replacement therapy. Interactions between you and your patients using the App, including the provision of services, fees, payment and any other terms and conditions, associated with such dealings, are solely between you and your patients. Elixir does not screen, perform background checks on or evaluate any patient. We make no representations regarding the reliability, quality, or accuracy, completeness of any information provided to you by your patients or any other party through the App or otherwise appearing on or through the App.  Neither you nor any other person will have any claim or cause of action against us as a result of any patient care or other services rendered or withheld in connection with the use of the App, your Submissions, or any Content, including your reliance on any information provided or available to you on or through the App. YOU ACKNOWLEDGE YOUR SOLE RESPONSIBILITY FOR PROVIDING MEDICAL AND HEALTH CARE ADVICE TO YOUR PATIENTS. ANY USE OR RELIANCE BY YOU UPON THE APP DOES NOT DIMINISH THAT RESPONSIBILITY. YOU ASSUME ALL RISKS ASSOCIATED WITH YOUR USE OF THE APP. Elixir Health does not recommend, endorse, approve or sponsor any health care provider or their services.  We make no representations concerning the qualifications or competence of any health care provider referenced on or that uses the App. 
     

  10. Third Parties. The App may contain information concerning third party resources and links to websites that we and our affiliates do not own, operate, or control, including health care providers and compounding pharmacies. All such information and links are provided solely as a convenience, not as an endorsement of any health care provider, pharmacy or other third party.  .  We do not endorse any content, product, or service of any third party, or make any representation regarding the reliability, quality, or accuracy of any information concerning any third party appearing on or through the App.  ELIXIR DOES NOT PERFORM BACKGROUND CHECKS ON, CONFIRM THE QUALIFICATIONS OF, OR EVALUATE, ANY HEALTH CARE PROVIDER, PHARMACY OR OTHER THIRD PARTY. YOU ARE SOLELY RESPONSIBLE FOR ESTABLISHING AND MAINTAINING THE RELATIONSHIP WITH YOUR PATIENTS, OTHER HEALTH CARE PROVIDERS AND PHARMACIES. We encourage you to conduct your own research and assessment of any patient, pharmacy, or third party with whom you are considering engaging or entering into a relationship and to use caution and good judgment.  We are not responsible or liable, directly or indirectly, for any damage or loss arising out of or in connection with your dealings with any third party, including with respect to any advice, diagnosis, care, drugs, treatment, or other products or services the third party may furnish to you. 
     

  11. Noninfringement; Compliance with Laws.  You will not submit any Submissions or use the App in any way that infringes, misappropriates, or violates any trademark, copyright, patent, trade secret, publicity, privacy, or other right of any third party or violates any applicable laws, rules, or regulations.  
     

  12. Acceptable Use.  You will not, and you will not permit or assist others: (i) to abuse or fraudulently use the App; (ii) to access, alter, or destroy any Content or information of any user of the App by any fraudulent means or device, or attempt to do so; or (iii) to take any action that:  (a) interferes or attempts to interfere with the proper working of the App or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the App; (b) circumvents, disables, or interferes or attempts to circumvent, disable, or interfere with security-related features of the App or features that prevent or restrict use, access to, or download or copying of any Content, or enforce limitations on use of the App or Content; or (c) imposes or may impose, in our sole discretion, an unreasonable or disproportionately large load on the App infrastructure. Any unauthorized use automatically terminates the permissions and licenses granted to you by us. 
     

  13. Proprietary Rights.

    (a) App. The App, including all software, technology, its design and content, and all related rights, are owned by and will remain the exclusive property of Elixir or its licensors. You will not remove any copyright, trademark, or other proprietary notice from any material found on the App. You shall comply with all applicable laws, rules, and regulations regarding your use of the App.

    (b) Trademarks. All trademarks, service marks, and trade names of Elixir used in the App, including but not limited to: the ArtemisCalendar name and logo and the Elixir Health name and logo (collectively “Marks”) are trademarks or registered trademarks of Elixir or its licensors. You may not use or display any Marks in any way without our prior written consent.

    (c) 
    Feedback. If you give to Elixir any idea, proposal, suggestion, or feedback, including without limitation ideas for new features, products, technologies, promotions, product names, product feedback, and product improvements ("Feedback"), you give to Elixir, without charge, royalties, or other obligation to you, the right to make, have made, create derivative works, use, share, and exercise all rights in and to your Feedback in any way and for any purpose, including commercialization and other exploitation. Elixir will treat any Feedback you provide to Elixir as non-confidential and non-proprietary. You agree that you will not submit to Elixir any information or ideas that you consider to be confidential or proprietary or that is confidential or proprietary to others.
     

  14. Notification. If you gave us your email address or phone number in connection with your account, then we may send notifications to you via email or via SMS (text message), including to verify your identity before registering your mobile phone number. We also may send you notifications by other means (for example by messages appearing on or through the App). Data or messaging rates may apply if you receive notifications via SMS.
     

  15. Suspension and Termination. You or we may suspend or terminate your account or your use of the App at any time, for any reason or for no reason, with or without prior notice. You are personally liable for any charges incurred through your account prior to termination. We also may block your access to the App in the event that: (a) you breach these Terms; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability or other harm to you, our users, or us. If your account is terminated, we may delete Submissions, or disassociate it from you and your account (unless we are required by law to keep it, return it, or transfer it to you or a third party identified by you). As a result, you may no longer be able to access the App or any Submissions or Content through your account.
     

  16. DISCLAIMERS. YOUR USE OF THE APP IS AT YOUR RISK. THE CONTENT AND SERVICES PROVIDED ON OR THROUGH THE APP ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. ELIXIR DOES NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE CONTENT OR SERVICES PROVIDED ON OR THROUGH THE APP. YOU ACKNOWLEDGE THAT COMPUTER AND TELECOMMUNICATIONS SYSTEMS ARE NOT FAULT-FREE AND OCCASIONAL PERIODS OF DOWNTIME OCCUR. WE DO NOT GUARANTEE THE APP WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT DATA LOSS WILL NOT OCCUR. THE CONTENT AND SERVICES PROVIDED ON OR THROUGH THE APP MAY BE OUT OF DATE, AND ELIXIR DOES NOT MAKE ANY COMMITMENT OR ASSUME ANY DUTY TO, OR TO REQUIRE OTHERS TO, UPDATE SUCH CONTENT OR SERVICES. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ELIXIR OR THROUGH THE APP WILL CREATE ANY WARRANTY FROM ELIXIR.
     

  17. LIMITATIONS OF LIABILITY. IN NO EVENT WILL ELIXIR, OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS, OR ASSIGNS, NOR ANY PARTY INVOLVED IN THE DEVELOPMENT OR OPERATION OF THE APP, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION), WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.

    WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR:  (I) ANY HEALTH CARE OR PROFESSIONAL SERVICES THAT YOU PROVIDE OR ANY OTHER ACT, OMISSIONS, OR CONDUCT BY YOU, INCLUDING ALL PATIENT CARE DECISIONS; (II) ANY ACTS, OMISSIONS AND CONDUCT OF YOUR PATIENTS, ANY OTHER USERS OF THE APP, AND/OR OTHER PARTIES REFERENCED ON OR THROUGH THE APP; (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE APP OR (IV) ANY BUGS, VIRUSES, TROJAN HORSES, HARMFUL CODE, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE APP.  

    IN THE EVENT OF ANY PROBLEM WITH THE APP OR ANY CONTENT OR SERVICES OBTAINED OR PROVIDED THROUGH THE APP OR YOUR SUBMISSIONS, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE APP. IN NO EVENT SHALL ELIXIR'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE EXCEED ONE HUNDRED DOLLARS (US $100.00).

    THESE LIMITATIONS AND EXCLUSIONS APPLY EVEN IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE OR IF WE KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF THE DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THESE LIMITATIONS AND EXCLUSIONS APPLY TO ANYTHING OR ANY CLAIMS RELATED TO THESE TERMS OR THE APP.
     

  18. Indemnity. You will defend, indemnify, and hold  harmless Elixir and any affiliated entity or individual from and against any and all liabilities, losses, damages, costs, and expenses, including reasonable attorneys’ fees, alleging, related to or arising in connection with (a) any health care or professional services that you provide, including all patient care decisions resulting from or involving the use of, or inability to use, the App, Submissions, or Content; (b) use of your Submissions by us or the App, including any violation or infringement of the privacy, publicity rights, or intellectual property rights of others, in our performance of this Agreement and as otherwise permitted by you; (c) your misuse of the App or Content or violation of any of these Terms, including your violation of any right of privacy, publicity rights, intellectual property, or other rights of any third party; (d) your violation of any applicable law, rule, or regulation; or (e) any other party’s access and use of the App with your username, password, or other appropriate security code.  We may participate in our defense at our own expense with counsel of our choosing.  You will not will not consent to the entry of any judgment or settle any claim without our prior written consent.
     

  19. Release. In the event that you have a dispute with your patients or any other user(s) of the App, you release Elixir (and our officers, directors, agents, subsidiaries, joint ventures, and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
     

  20. Force Majeure. Elixir will not be responsible for damages or for delays or failures in performance resulting from acts or occurrences beyond our reasonable control, including, without limitation: acts of God, war, riot, embargoes, acts of civil or military authorities, severe weather, pandemic, or other severe  health events, accident, strikes, labor disputes and unrest, cyber-attacks, changes in law, government orders, electrical, internet, or telecommunication outage that is not caused by the affected party, delay or failures by our vendors and suppliers.
     

  21. Dispute Resolution. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND HOW CLAIMS THAT YOU AND Elixir HAVE AGAINST EACH OTHER ARE RESOLVED. This Section is deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Elixir agree that we intend that this Section satisfies the “writing” requirement of the Federal Arbitration Act.

    We believe that arbitration is a faster, more convenient, and less expensive way to resolve any disputes or disagreements that we may have. Therefore, pursuant to these Terms, if you have any past, present, or future dispute or disagreement with us regarding (i) your use of or interaction with the App, (ii) any purchases or other transactions or relationships with Elixir, or (iii) any data or information you may provide to Elixir or that Elixir may gather in connection with such use, interaction, or transaction (collectively, “Elixir Transactions or Relationships”), you will not have the right to pursue a claim in court or have a jury decide the claim and you will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. By using or interacting with the App, or engaging in any other Elixir Transactions or Relationships with us, you agree to binding arbitration as provided below.

    We will make every reasonable effort to informally resolve any complaints, disputes, or disagreements that you may have with us. If those efforts fail, you agree that any complaint, dispute, or disagreement you may have against Elixir, and any claim that Elixir may have against you, arising out of, relating to, or connected in any way with these Terms, our Privacy Policy, or any Elixir Transactions or Relationships shall be resolved exclusively by final and binding arbitration (“Arbitration”) administered by JAMS or its successor (“JAMS”) and conducted in accordance with the JAMS Streamlined Arbitration Rules And Procedures in effect at the time the Arbitration is initiated or, if the amount in controversy exceeds $100,000, in accordance with the JAMS Comprehensive Arbitration Rules And Procedures then in effect (respectively, the “Applicable Rules”). The Applicable Rules can be found at www.jamsadr.com. If JAMS is no longer in existence, the Arbitration shall be administered by the American Arbitration Association or its successor (the “AAA”) instead and conducted in accordance with the AAA Commercial Arbitration Rules in effect at that time (which shall be the “Applicable Rules” in such circumstances). If JAMS (or, if applicable, AAA) at the time the arbitration is filed has Minimum Standards of Procedural Fairness for Consumer Arbitrations in effect which would be applicable to the matter in dispute, Elixir agrees to provide the benefit of such Minimum Standards to you to the extent they are more favorable than the comparable arbitration provisions set forth in this Section, provided, however, that in no event may such Minimum Standards contravene or restrict the application of subpart (e) or (h) below.

    You further agree that:
     

(a)        Arbitrator Will Interpret These Terms. The Arbitrator, and not any federal, state, or local court or agency, has the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability, or formation of these Terms and the arbitration provisions in this Section, including but not limited to any claim that all or any part of these Terms is void or voidable;


(b)        Location of Arbitration. The Arbitration will be held either: (i) at a location determined by JAMS (or, if applicable, AAA) pursuant to the Applicable Rules (provided that such location is reasonably convenient for you and does not require travel in excess of 100 miles from your home or place of business); or (ii) at such other location as may be mutually agreed upon by you and Elixir; or (iii) at your election, if the only claims in the arbitration are asserted by you and are for less than $10,000 in aggregate, by telephone or by written submission;


(c)        Governing Law. The Arbitrator (i) will apply internal laws of the State of Washington consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent that federal law prevails, will apply the law of the U.S., irrespective of any conflict of law principles; (ii) will entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with Washington or federal rules of procedure, as applicable; (iii) will honor claims of privilege recognized at law; and (iv) will have authority to award any form of legal or equitable relief;


(d)        No Class Relief. The Arbitration can resolve only your and Elixir’s individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated;


(e)        Written Award. The Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets;


(f)         Arbitration Costs. In the event that you are able to demonstrate that the costs of Arbitration will be prohibitive as compared to the costs of litigation, Elixir will pay as much of your filing and hearing fees in connection with the Arbitration as the Arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the Arbitration, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith;


(g)        Reasonable Attorney’s Fees. If, through the process set forth in this Section 21, you recover an Award greater than Elixir’s last written settlement offer, we will reimburse your reasonable and actual out-of-pocket attorneys’ fees associated with the Arbitration, and we will bear our own attorneys’ fees;


(h)        Interpretation and Enforcement of Arbitration Clause. With the exception of the subsection entitled No Class Relief above, if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal or otherwise conflicts with the Applicable Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal, or conflicting provision were not contained herein. If, however, “No Class Relief” is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Elixir shall be entitled to arbitrate their dispute, and must instead bring any claims in a court of competent jurisdiction;


(i)         Small Claims Matters are Excluded. No Class Relief or Joinder of Claims. Notwithstanding the foregoing arbitration provisions, at your option, you may bring any claim you have against Elixir in your local small claims court within the U.S., if your claim is within such court’s jurisdictional limit; provided that such court does not have the authority to entertain any claims on a class or representative basis or to consolidate or join the claims of other persons or parties who may be similarly situated in such proceeding; and


(j)         Intellectual Property Disputes. Notwithstanding the foregoing, Elixir or you may submit any dispute, cause of action, claim, or controversy relating to our or your intellectual property (such as trademarks, domain names, trade secrets, copyrights) to any court of competent jurisdiction.
 

22. General. Any claim relating to, and the use of, the App and the materials contained herein is governed by the laws of the State of Washington. To the extent the provisions in the section titled Dispute Resolution do not apply, you consent to the exclusive jurisdiction of the state and federal courts located in King County, Washington. A printed version of these Terms will be admissible in judicial and administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
 

These Terms set forth the entire understanding and agreement between us with respect to the subject matter hereof. Except as set forth in the section titled Dispute Resolution above, if any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions will be enforced. You agree that these Terms and all incorporated agreements may be automatically assigned by Elixir in our sole discretion. Headings are for reference purposes and have no interpretive value. Any failure or delay by us to exercise or partially exercise any right, power or privilege hereunder shall not be deemed a waiver of any of the rights, powers or privileges under these Terms.  Waiver of a breach of or right hereunder will not constitute a waiver of any other or subsequent breach or right.  All sections which by their context ought to survive these Terms will survive any termination or expiration of these Terms.
 

23. Apple Disclaimer. The following applies to any part of the App you acquire from an electronic store branded, owned, or controlled by Apple or any affiliate of Apple (“App Store-Sourced Software”):
 

You acknowledge and agree that these Terms are solely between you and Elixir, not Apple, and that Apple has no responsibility for the App Store-Sourced Software or content thereof. Your use of the App Store-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store-Sourced Software. In the event of any failure of the App Store-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to Elixir as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the App Store-Sourced Software or your possession and/or use of the App Store-Sourced Software, including, but not limited to: (a) product liability claims; (b) any claim that the App Store-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to Elixir as provider of the software. You acknowledge that, in the event of any third-party claim that the App Store-Sourced Software or your possession and use of that App Store-Sourced Software infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You and Elixir acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as relates to your license of the App Store-Sourced Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as relates to your license of the App Store-Sourced Software against you as a third-party beneficiary thereof.
 

24. Additional Assistance. If you do not understand any of these Terms or if you have any questions or comments, you may contact us at contact@artemiscalendar.com.
 

25. Copyright Notice. All design, graphics, text selections, arrangements, and all software are Copyright © 2021, Elixir Health, LLC dba ArtemisCalendar and its affiliates and licensors. ALL RIGHTS RESERVED.



 

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