Thank you for your interest in smartER-Care, a mobile software application (the "App”). We understand that you have already downloaded and installed the
application on a mobile device or intend to do so. You may also access some features of the smartER-Care through the website located at https://www.smirta.com (the "Site")
provided by Smirta Innovations Inc (“Smirta”). Together, the App and the Site are referred to below as the "Applications."
We may modify these Terms at any time by posting the revised Terms on the App or the Site. Any modifications will be effective immediately upon such posting. Your use of or access to the Applications after such modifications are posted will signify your acceptance of the modifications and your agreement to be bound by them. Notwithstanding the foregoing, any modifications to these Terms shall not apply to any dispute between us arising prior to the date on which we post the revised Terms that contain such modifications.
We reserve the right, at any time and from time to time, temporarily or permanently, in whole or in part, to: modify, suspend or discontinue the Applications; charge fees in connection with the use of the Applications; modify and/or waive any fees charged in connection with the Applications; and/or offer opportunities to some or all users of the Applications. You agree that neither we nor any of our affiliates shall be liable to you or to any third party for any modification, suspension or discontinuance of the Applications, in whole or in part, or of any service, content, feature or product offered through the Applications.
DISCLAIMER; NOT A SUBSTITUTE FOR PROFESSIONAL HEALTH CARE OR ADVICE
THE APPLICATIONS AND ANY INFORMATION CONTAINED ON OR PROVIDED THROUGH THE APPLICATIONS ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITH NO WARRANTIES WHATSOEVER. YOUR USE OF THE APPLICATIONS IS VOLUNTARY AND AT YOUR SOLE RISK. THE HEALTH-RELATED INFORMATION AVAILABLE THROUGH THE APPLICATIONS IS GENERAL IN NATURE AND IS NOT A SUBSTITUTE FOR PROFESSIONAL HEALTHCARE. IT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED, AND SHOULD NOT BE USED, TO REPLACE THE ADVICE OF HEALTHCARE PROFESSIONALS. YOU ARE SOLELY RESPONSIBLE FOR YOUR RELIANCE ON THE APPLICATIONS AND THE HEALTH-RELATED INFORMATION AVAILABLE THROUGH THE APPLICATIONS, AND FOR ALL DECISIONS OR ACTIONS RESULTING FROM YOUR USE OF THE APPLICATIONS AND ITS CONTENT, INCLUDING BUT NOT LIMITED TO ANY DECISION NOT TO SEEK OR REFRAIN FROM SEEKING ANY DIAGNOSIS OR TREATMENT. YOU ARE ALSO SOLELY RESPONSIBLE FOR YOUR DECISION TO USE THE SERVICES OF ANY PARTICULAR THIRD-PARTY PROVIDER. IF YOU HAVE SPECIFIC HEALTHCARE NEEDS, OR FOR COMPLETE HEALTH INFORMATION, PLEASE SEE A DOCTOR OR OTHER HEALTHCARE PROVIDER.
THIRD-PARTY PROVIDERS AND PAYORS
The Applications provides users with access to electronic schedules of the available appointments of doctors, hospitals and other third-party healthcare providers ("Third-Party Providers"). Additionally, the Applications provide users with the ability to exchange certain registration information with Third-Party Providers. Smirta may provide marketing services on behalf of Third-Party Providers to patients or prospective patients (including users of the Applications) such as email campaigns, search engine optimization (SEO) and electronic directory services. Smirta may also provide Third-Party Providers with the opportunity to create their own Premier Listings, Profile Pages or mini-websites. Smirta may charge Third-Party Providers a fee for the services and opportunities described in this section. Although Smirta reserves the right (but does not have the obligation) to monitor, it does not control the content contained within Premier Listings, Profile Pages or mini-websites (including the availability of open appointments), and assumes no responsibility or liability of any kind for any inaccuracies (including inaccuracies regarding available appointments, insurance accepted or network participation) contained therein, or for any qualifications, reference materials or other content available therein.
Smirta allows you to submit and store the name of your insurance or benefit plan, but, except as provided below, Smirta does not provide any information regarding coverage available, healthcare costs, or doctors and hospitals participating in your plan. You should contact your insurance carrier or plan administrator ("Payors") for this information. Payors are third parties, although certain third-party Payors may be affiliated with Smirta. In some cases, a Payor may contract with Smirta to provide such Payor's members with information regarding coverage available, healthcare costs, doctors and hospitals participating in the plan, and other content and services ("Healthplan Services"). If your Payor has contracted with Smirta to make Healthplan Services available to you, you may be able to log in using your insurance or benefit plan member identification number, and access content and services related to your insurance or benefit plan. Although Smirta reserves the right (but does not have the obligation) to monitor the Healthplan Services (including but not limited to the content and services made available therein, such as network information, coverage and claim information and cost information), Smirta does not control the Healthplan Services, and assumes no responsibility or liability of any kind for any inaccuracies (including inaccuracies regarding network participation, plan benefits, coverage, features or claim status) contained therein, or for any messaging, reference materials or other content or services made available therein.
Smirta is not responsible for, and shall have no liability in connection with, any transactions or disputes between you and Third-Party Providers or Payors. If you have a dispute with a Third-Party Provider or Payor, you agree to release us (and our employees and agents) from claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed (including actual, consequential and punitive damages), arising out of or in any way connected with the use of the Applications or such disputes. You waive any provisions of any state, province, or country law that limit or prohibit a general release, including, if applicable, Section 1542 of the California Civil Code, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor."
Smirta grants to you a limited, royalty-free, non-exclusive, personal and non-transferable, license to install and use the App on a single personal mobile electronic device or smart phone owned or controlled by you solely for your own personal, non-commercial purposes, subject to your compliance with these Terms.
OWNERSHIP OF THE APPLICATIONS
The Applications (including any content made available through the Applications) are the property of Smirta (or its licensors) and are protected by applicable intellectual property laws. The App is licensed, not sold, to you. You may utilize the Applications only as permitted by these Terms. You may not, and will not permit any other party to: (1) modify, adapt, alter, translate or create derivative works of the Applications; (2) use or merge the Applications, or any component or element thereof, with other software, databases or services not provided by Smirta; (3) sublicense, distribute, sell or otherwise transfer the Applications to any third party; (4) use the App as a service bureau, or lease, rent or loan the App to any third party; (5) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code or structure of the Applications; (6) interfere in any manner with the operation of the Applications; (7) circumvent, or attempt to circumvent, any electronic protection measures in place to regulate or control access to the Applications; (8) create a database by systematically downloading and storing the Applications; (9) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, "scrape," "data mine" or in any way gather the Applications or reproduce or circumvent the navigational structure or presentation of the Applications without our express prior written consent; or (10) use the Applications for any commercial purposes. You agree not to develop, distribute or sell any software or other functionality capable of launching, being launched from or otherwise integrated with the Applications. You may not remove, alter or obscure any copyright notice or any other proprietary notice that appears on or in the Applications.
Any logo, trademark, servicemark, domain name, or trade name appearing on the Applications, including “smartER Care” and “Smirta” ("Marks"), whether registered or not, are the property of Smirta or their respective owners. You may not use any Marks without the express written permission of Smirta.
INFORMATION THAT YOU SUBMIT
For purposes of clarity, you retain ownership of any information, content and materials that you submit through the Applications in connection with any publicly-available forums (each, a "Submission"). However, please note that we need certain rights to your Submissions to be able to make them available on the Applications. As such, you hereby grant to Smirta and its service providers and designees a worldwide, non-exclusive, transferable, sublicensable (through multiple tiers), royalty-free, perpetual, irrevocable right and license, without compensation to you: to use, reproduce, distribute, adapt (including without limitation to edit, modify, translate and reformat), create derivative works of, transmit, publicly display and publicly perform such Submission, in any Applications now known or hereafter developed.
This license is non-exclusive (so you can license your Submissions to others), worldwide (as the Internet is global in its reach), fully-paid-up and royalty-free (so that we do not have to pay you for posting your Submissions), sublicensable through multiple tiers (so that we can use our service providers and subcontractors to provide services).
For each Submission, you represent and warrant that you have all rights necessary for you to grant the licenses granted in this section, and that such Submission, and your provision thereof to and through the Applications, comply with all applicable laws, rules and regulations. You further irrevocably waive any "moral rights" or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that you may have under any applicable law under any legal theory. We request this waiver to help ensure that we have all the rights we may need to provide the services available through the Applications.
You acknowledge and agree that (a) we reserve the right (but have no obligation) to do any or all of the following, at our discretion: (i) monitor Submissions; (ii) alter, remove, or refuse to post or allow to be posted any Submission; and/or (iii) disclose any Submission, and the circumstances surrounding its transmission, to any third party in order to operate the Applications; to protect Smirta and its respective employees, officers, directors, shareholders, affiliates, agents, representatives, licensors, suppliers and service providers, and the Applications' users and visitors; to comply with legal obligations or governmental requests; to enforce these Terms; or for any other reason or purpose.
USER NAMES, PASSWORDS AND SECURITY
You may be required to register with Smirta to access certain services or areas of the Applications. With respect to any such registration, we may refuse to grant you, and you may not use, a user name (or e-mail address) that is already being used by someone else; that may be construed as impersonating another person; that belongs to another person; that personally identifies you; that violates the intellectual property or other rights of any person; that is offensive; or that we reject for any other reason in our sole discretion.
Your user name and password are for your personal use only, and not for use by any other person. You are responsible for maintaining the confidentiality of any password you may use to access the Applications, and agree not to transfer your password or user name, or lend or otherwise transfer your use of or access to the Applications, to any third party. You are fully responsible for all interaction with the Applications that occurs in connection with your password or user name. You agree to immediately notify Smirta of any unauthorized use of your password or user name or any other breach of security related to your account or the Applications, and to ensure that you "log off"/exit from your account with the Applications (if applicable) at the end of each session. To report unauthorized access or use of the Applications, send an e-mail to firstname.lastname@example.org. We are not liable for any loss or damage arising from your failure to comply with any of the foregoing obligations.
Access to any Healthplan Services may require an insurance or benefit plan member identification number provided by your Payor, as well as other credentials and passwords related to your insurance or benefit plan. You are responsible for maintaining the confidentiality of such identification number and other credentials and passwords.
Smirta may suspend or terminate your use of or access to the Applications (including any Healthplan Services made available through the Applications) if you fail to comply with the Terms. Such suspension or termination may result in the permanent deletion of your information or other previously available content.
You acknowledge and agree that you (and not Smirta) are responsible for obtaining and maintaining all telecommunications, broadband, and computer hardware, equipment, and services needed to access and use the Applications, and for paying all charges related thereto. Smirta does not operate or control the Internet or your mobile connection, and therefore Smirta does not and cannot guarantee that the Applications will be error or virus free, invulnerable to hackers or other unauthorized users, or always available.
To the fullest extent permitted under law, you will defend, indemnify and hold harmless Smirta and its affiliates, and its and their officers, directors, employees, agents and licensors from and against all claims, actions, liabilities, losses, expenses, damages and costs (including reasonable attorneys' fees) arising out of or related to your use of the Applications or any violation of these Terms by you.
EXCLUSIONS OF WARRANTIES
SMIRTA AND ITS AFFILIATES DISCLAIM ALL EXPRESS WARRANTIES, IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SMIRTA AND ITS AFFILIATES WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY ERROR, DELAY OR INTERRUPTION IN THE APPLICATIONS OR ANY HEALTHPLAN SERVICES. SMIRTA AND ITS AFFILIATES MAKE NO GUARANTEE, REPRESENTATION OR WARRANTY REGARDING THE TIMELINESS, RELIABILITY, ACCURACY, COMPLETENESS OR USEFULNESS OF ANY PORTION OF THE APPLICATIONS OR ANY HEALTHPLAN SERVICES, INCLUDING THE CONTENT MADE AVAILABLE THROUGH THE APPLICATIONS OR ANY HEALTHPLAN SERVICES, OR REGARDING THE AVAILABILITY OR APPROPRIATENESS OF THIRD-PARTY PROVIDERS OR PAYORS. YOU AGREE THAT YOUR ACCESS TO AND USE OF THE APPLICATIONS AND ANY HEALTHPLAN SERVICES IS AT YOUR OWN RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY LIABILITY OR DAMAGE THAT YOU MAY INCUR THROUGH USE OF THE APPLICATIONS AND ANY HEALTHPLAN SERVICES, EXCEPT TO THE EXTENT THAT THE APPLICABLE LAWS OF A PARTICULAR JURISDICTION CANNOT BE WAIVED OR EXCLUDED BY AGREEMENT.
LIMITATION OF LIABILITY
SMIRTA AND ITS AFFILIATES MAY NOT BE HELD LIABLE UNDER ANY PROVISION OF THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES, OR FOR ANY OTHER DAMAGES OTHER THAN DIRECT DAMAGES, EVEN IF SMIRTA KNOWS OR SHOULD KNOW THAT OTHER DAMAGES ARE POSSIBLE OR THAT DIRECT DAMAGES ARE NOT A SATISFACTORY REMEDY. THE LIMITATIONS IN THIS SECTION APPLY TO YOU ONLY TO THE EXTENT THAT THEY ARE LAWFUL IN YOUR JURISDICTION.
SMIRTA MAY NOT BE HELD LIABLE FOR MORE THAN $100 UNDER ANY PROVISION OF THIS AGREEMENT.
THIRD-PARTY INFORMATION AND LINKS TO THIRD-PARTY WEBSITES (INCLUDING THIRD-PARTY PROVIDER OR PAYOR WEBSITES)
The Applications may contain information concerning and/or obtained from Third-Party Providers, Payors and other third parties (sometimes referred to as "partners or advertisers"). The partners or advertisers may offer third-party products or services compatible with the Applications. The Applications may also provide links to third-party websites (including websites of Third-Party Providers or Payors) as a paid service to Third-Party Providers or Payors. Such information and links are provided for your convenience. SMIRTA AND ITS AFFILIATES DO NOT MONITOR, CONTROL OR ENDORSE, AND ARE NOT RESPONSIBLE OR LIABLE FOR, SUCH THIRD-PARTY PRODUCTS, SERVICES OR WEBSITES OR THE CONTENT CONTAINED THEREIN.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the use of the Applications, whether between you, Smirta, its affiliates or any Third-Party Provider or Payor.
In choosing to access the Applications, you do so on your own initiative and at your own risk, and you are responsible for complying with all local laws, rules and regulations. You are also subject to United States export controls and are responsible for any violations of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a "terrorist supporting" country; (b) on any of the U.S. government lists of restricted end users. We may limit the Applications' availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.
You agree that these Terms shall be construed in accordance with the laws of the State of New Jersey without regard to its conflict of laws provisions. Any claim or dispute arising in connection with your use of the Applications shall be brought exclusively in the courts of the State of New Jersey. Any cause of action or claim you may have with respect to the Applications must be commenced within one (1) year after the cause of action or claim arises. Smirta's failure to insist upon or enforce strict performance of any provision of these Terms shall not be construed as a waiver of any provision or right. Neither the course of conduct between you and Smirta nor any trade practices shall act to modify the Terms. Smirta may assign its rights and duties hereunder to any third party at any time without consent or notice to you.
If any provision of these Terms is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provision. These Terms, together with all policies referred to herein, are the entire Agreement between you and Smirta relating to the subject matter herein and supersede any and all prior or contemporaneous written or oral agreements or understandings between you and Smirta relating to such subject matter.