2. Scope of terms
The Services and all content and information provided by the Services (“NowPow Content”) may be used only under this Agreement made between NowPow and You.
NowPow reserves the right to modify this Agreement at any time without notice to User. User agrees to review this Agreement periodically to ensure awareness of any modifications. User’s continued access or use of the Services after modifications have become effective shall be deemed conclusive acceptance of the modified terms.
NowPow has the exclusive right to control accessibility, hours of use, content, and features of the Services. NowPow can restrict access to any or all portions of the Services, or remove any information or content from the Services at any time. NowPow reserves the right, but shall not be obligated, to monitor use of the Services.
User is solely responsible for providing the equipment related to accessing the Services, including but not limited to all computer, remote communications equipment, telephone, and other equipment.
When an individual has authorized you to share his or her Health Information with us, you are responsible for the use and disclosure of the individual’s Health Information obtained via the Services in accordance with the Health Insurance Portability and Accountability Act (“HIPAA”) and its privacy and security rules.
3. License and Limitations
You are granted a personal, revocable, limited, non-exclusive, non-transferable license to access and use the Services and the NowPow Content, conditioned on your continued acceptance of, and compliance with, this Agreement.
Users may not do any of the following while using the Services:
- interfere with or disrupt networks connected to the Services or violate the regulations, policies or procedures of such networks;
- attempt to gain unauthorized access to the Services, computer systems or networks connected to the Services, through password mining or any other means;
- interfere with another user’s use and enjoyment of the Services;
- upload any message, information, data, text, software, graphic files or other materials (“End User Content”) that is unlawful, harmful, threatening, abusive, harassing, torturous,
- defamatory, vulgar, obscene, libelous, that may be invasive of another’s privacy, hateful, racially, sexually, ethnically or otherwise objectionable;
- use the Services (i) in an offensive manner towards any individual or person, (ii) for political purposes, (iii) to harm or exploit minors in any way, (iv) to post, submit or transmit unlawful, harmful, tortuous, defamatory, profane, libelous, hateful or otherwise offensive material, (v) in a racially, ethnically or otherwise impermissibly discriminating manner, (vi) to post or reference obscene, pornographic, indecent or illegal materials, (vii) to discuss, incite or otherwise solicit illegal activity, or (viii) in any manner that infringes upon the rights of any individual or other person, including, but not limited to intellectual property, publicity or privacy rights;
- upload End User Content that contains a virus, corrupted file, or other harmful component;
impersonate any person or entity, including, but not limited to, NowPow personnel, or falsely state or otherwise misrepresent any affiliation with any person or entity, or upload any End User Content under a fictitious name;
- upload any End User Content that you do not have a right to upload under law or under contractual or fiduciary relationships including but not limited to nondisclosure agreements;
- upload any information or grant permissions to view information to any person in a manner that exceeds your contractual or other legal authority;
- upload any unsolicited advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, contests, surveys, or any other form of solicitation, commercial or non-commercial;
- use any robot, spider or other automatic device or manual process to monitor or copy any web pages or any content contained on or available through the Services, including without limitation the NowPow Content.
- intentionally or unintentionally violate or encourage or assist another to violate any law or regulation in connection with your use or another’s use of the Services; or
- upload any End User Content that violates or infringes any patent, trademark, trade secret, copyright, privacy, or any right, of whatever nature, of anyone.
If you violate any of the terms of this Section 4, your permission to use the Services automatically terminates.
4. Linking to the Services
You may provide a link on your website to the Services subject to the following requirements:
- You may not frame, deep link, or alter the appearance or visual presentation of the Services.
- You may not state or imply that NowPow endorses, sponsors, or otherwise approves of your website or any other websites, unless it is true and accurate. Links to the Services may not be used in a way that implies or suggests NowPow’s approval or endorsement of you, your web site, or your goods and services, unless it is true and accurate.
- You may not use the NowPow Marks (defined in Section 6, below) on any website that disparages NowPow or any of our affiliates, or presents false information about NowPow or any of our affiliates. You may not use the NowPow Mark as a predominant feature of your website.
- Requests for permission to link to other parts of the Services may be sent to more@NowPow.com.
- NowPow will have no responsibility or liability for any content appearing on your web site.
You agree to defend, indemnify and hold harmless NowPow and its affiliates and their officers, directors, employees and agents, from and against any and all third-party claims, liability, actions, demands, costs or expenses (including, but not limited to, reasonable legal and accounting fees) arising from or relating to your web site. NowPow reserves the right to defend any such claim, and you agree to provide us with such reasonable cooperation as NowPow may request.
- By linking, you acknowledge and agree all rights to the NowPow belong to NowPow.
- We reserve the right at any time and in our sole discretion to request that you remove all links or any particular link to the Services from your website.
- Upon our request, you agree to immediately remove all links to the Services and to cease using the NowPow Marks.
Without limiting the foregoing, if you violate this Section, your license to use the NowPow Marks and your right to link to any portion of the Services automatically terminates. Thereafter, any future links to the Services will require the express written permission of NowPow.
5. Proprietary Rights
The NowPow Content includes, without limitation: (i) NowPow’s trademarks, service marks, logos, brands, and brand names, trade dress and trade names and other distinctive identification (collectively “NowPow Marks”); and (ii) information, data, materials, interfaces, computer code, databases, products, services, resources, software applications and tools, text, images, photographs, audio and video material, and artwork is the property of NowPow, its licensors, sponsors, partners, advertisers, content providers or other third parties and is protected by law including, but not limited to, United States copyright, trade secret, patent, and trademark law, as well as other state, national and international laws, treaties and regulations. You may not alter, delete, obscure, or conceal any copyright or other notices appearing in the NowPow Content, including any such notices appearing on any NowPow Content You are permitted to download, transmit, display, print, use, or reproduce from the NowPow Services. Except for the limited use the Licensed Marks as set forth in this Section 4, you may not use any of NowPow’s trademarks or service marks or logos for any other reason without the express written permission of NowPow. NowPow may, at any time, in its sole discretion, without cause, terminate the license granted herein to use the Licensed Marks and your right to link to any portion of the Services.
Any feedback, suggestions, solutions, improvements, corrections or other contributions you provide regarding the NowPow Content or the Services becomes the sole property of NowPow and you agree to assign and hereby assign any and all such rights to NowPow without charge. You further agree to take all acts reasonably requested by NowPow to confirm NowPow’s ownership of such items.
6. Username and password
User may be required to select a username and password when accessing certain portions of the Services. NowPow may refuse to grant a Username/Nickname that impersonates someone else, is protected by trademark or proprietary law, or is vulgar or otherwise offensive, as determined by NowPow’s sole discretion. User is solely and fully responsible for maintaining the confidentiality of his/her username and password, and is solely and fully responsible for all activities that occur under his/her username and password. User agrees to: (a) immediately notify NowPow of any unauthorized use of a username and password or any other breach of security and (b) ensure that User logs off at the end of each session. NowPow will not be liable for any loss or damage arising from User’s failure to comply with this Section 6.
8. Your Representations and Warranties
By accessing the Services, you represent and warrant that (i) you are at least eighteen (18) years of age, (ii) you have the legal ability and authority to enter into this Agreement with NowPow, and (iii) the information you have provided to NowPow in your registration is accurate and complete. If any information you provide to NowPow becomes inaccurate, incomplete or otherwise false or misleading, you will immediately notify NowPow.
The content and information provided through the Services is for informational purposes only and is not intended as medical advice. The Services do not replace or substitute for medical advice, diagnosis, or treatment for any reason. NowPow also cannot answer unsolicited e-mails requesting personal medical advice. You should always consult with a doctor or other health care professional for medical advice or information about diagnosis and treatment. Use of the Services does not guarantee any results and results may vary.
Although we try to provide accurate information, we do not guarantee or expressly or impliedly warrant the reliability, accuracy, timeliness, or completeness of the information. NEITHER NOWPOW NOR ANY OF ITS AFFILIATES, AGENTS, EMPLOYEES, OR ASSIGNS WARRANTS THE ACCURACY, ADEQUACY, OR COMPLETENESS OF THE INFORMATION PROVIDED THROUGH THE SERVICES AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS AND OMISSIONS IN THE INFORMATION.
YOU ACCESS AND USE THE SERVICES AT YOUR OWN RISK. THE SERVICES AND THE NOWPOW CONTENT ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND AND ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR ANY WARRANTIES ARISING OUT OF A COURSE OF DEALING, TRADE OR PERFORMANCE, ARE SPECIFICALLY DISCLAIMED. NEITHER NOWPOW NOR ITS AFFILIATES, EMPLOYEES, AGENTS, OR THIRD-PARTY CONTENT PROVIDERS SHALL BE LIABLE FOR ANY LOSS RESULTING FROM USE OR UNAVAILABILITY OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOSS OR DAMAGE TO DATA, OR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, COMPENSATORY, OR INCIDENTAL DAMAGES, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. No advice or information, whether oral or written, obtained by you from NowPow, your provider or their respective affiliates or vendors in any manner will create any warranty.
10. Limitation of Liability
IN NO EVENT WILL NOWPOW OR ANY OF ITS AFFILIATES, AGENTS, EMPLOYEES, OR ASSIGNS BE LIABLE FOR ANY DELAY, DIFFICULTY IN USE, COMPUTER VIRUSES, MALICIOUS CODE OR OTHER DEFECT IN THIS SITE, ANY COMPATIBILITY BETWEEN THE SERVICES AND THE USER’S FILES, AND THE USER’S BROWSER OR OTHER SITE ACCESSING THE SERVICES.
THE PROVISIONS IN THIS SECTION 10 ARE APPLICABLE TO ANY DAMAGE OR INJURY RESULTING FROM NEGLIGENCE OR OMISSION OF NOWPOW, COMPUTER VIRUS OR OTHER SIMILAR ITEM, TELECOMMUNICATIONS ERRORS, OR UNAUTHORIZED ACCESS TO, OR USE OF, USER INFORMATION THROUGH THEFT OR ANY OTHER MEANS. USER AGREES THAT NOWPOW IS NOT LIABLE FOR CRIMINAL, TORTIOUS, OR NEGLIGENT ACTIONS OR OMISSIONS OF THIRD PARTIES THAT AFFECT THE SERVICES.
USER AGREES NOT TO SEEK TO HOLD NOWPOW OR ANY OF ITS AFFILIATES, AGENTS, EMPLOYEES, ASSIGNS, OR THIRD-PARTY CONTENT PROVIDERS LIABLE FOR ANY TORTIOUS OR ILLEGAL CONDUCT OF OTHER USERS.
USER AGREES NOT TO SEEK TO HOLD NOWPOW OR ANY OF ITS AFFILIATES, AGENTS, EMPLOYEES, OR ASSIGNS LIABLE FOR ANY DAMAGE TO EQUIPMENT, HARDWARE, OR OTHER PROPERTY OF USER OR PERSONAL INJURY THAT ARISES IN CONNECTION WITH USE OF THE SERVICES.
YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF SUCH DAMAGE IS TO DISCONTINUE YOUR ACCESS TO AND USE OF THE SERVICES.
NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL THE AGGREGATE LIABILITY OF NOWPOW AND ITS AFFILIATES AND VENDORS FOR ANY REASON EXCEED $50.00 US DOLLARS, REGARDLESS OF WHETHER THE FOREGOING REMEDIES SHOULD FAIL OF THEIR ESSENTIAL PURPOSE. YOU UNDERSTAND THAT THIS PROVISION IS A MATERIAL TERM OF THIS AGREEMENT, WITHOUT WHICH NOWPOW WOULD NOT PROVIDE ACCESS TO THE SERVICES.
USER AGREES THAT, REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR ACTION ARISING OUT OF OR REGARDING THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU TO THE EXTENT SUCH LIMITATION IS PROHIBITED BY APPLICABLE LAW.
User understands and agrees that he or she is personally responsible for his or her behavior while accessing or using the Services. User agrees to indemnify, defend, and hold harmless NowPow, its directors, officers, employees, agents, and assigns from and against all losses, expenses, damages, costs (including, but not limited to, direct, incidental, consequential, exemplary, punitive, and direct damages), reasonable attorneys’ fees, resulting from or arising out of the User’s use, misuse, or inability to use the Services or the NowPow Content or any violation by the User of this Agreement. NOTWITHSTANDING THE FOREGOING, NOWPOW AND ITS VENDORS RESERVE THE RIGHT TO PARTICIPATE IN THE DEFENSE OF ANY SUCH CLAIM SUBJECT TO YOUR INDEMNIFICATION OBLIGATION.
12. Termination of Agreement
Either NowPow or User may terminate this Agreement at its discretion. In addition to NowPow’s other rights, NowPow may terminate access to the Services if User breaches this Agreement in any way or engages in conduct that NowPow deems inappropriate. In the event of termination of this Agreement, the provisions in this Section and the provisions found in Sections 4, 6, 7, and 9-14 shall survive.
13. Governing laws
The Services are based in the United States. Access to the Services may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction.
This Agreement will be governed by the internal laws of the State of Illinois, without regard to its choice of law provisions. You agree that any action arising out of or relating to this Agreement may be brought only in a court of competent jurisdiction in Cook County, Illinois, and you hereby consent to the jurisdiction, venue, and convenience of such courts.
Upon User’s breach of this Agreement, NowPow may pursue any legal or equitable remedy available, including but not limited to, direct, consequential, and punitive damages as well as injunctive relief. NowPow’s remedies are cumulative and not exclusive. Failure of NowPow to exercise any remedy or enforce any portion of this Agreement at any time shall not operate as a waiver of any remedy or of the right to enforce any portion of the Agreement at any time thereafter.
In the event of any dispute, the prevailing party will be entitled to recovery of its reasonable attorneys’ fees and costs. If a court or arbitrator deems any provision of this Agreement unenforceable or invalid, then the court or arbitrator will modify such provision to the minimum extent necessary to make such provision enforceable and valid. If such modification proves impossible or impracticable then the provision will be severed and the remaining terms of this Agreement interpreted and read to give them maximum enforceability.