Last Revised: December 2016
This Terms of Service ("TOS") is a legally binding agreement made by and between Peak Medical Academy, Inc. and its affiliates, parent, divisions. ("Peak", "we", "us" and "our"), and you, personally and, if applicable, on behalf of the entity for whom you are using this website (collectively, "you", "your", "yours"). This TOS governs your access to and use of www.peakmedicalacademy.com any other World Wide website owned, operated, licensed, or controlled by Peak (collectively, the "website") and the services offered by Peak on the website ("Services"), so please read them carefully. This TOS will also apply to all visitors, users, and others who access the website and use the Services ("Users").
BY ACCESSING OR USING ANY PART OF THE WEBSITE, INCLUDING LINKING TO THE WEBSITE, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS TOS. IF THERE ARE ADDITIONAL POSTED GUIDELINES OR POLICIES APPLICABLE TO THE SERVICES OR WEBSITE (INCLUDING THE PRIVACY POLICY), YOU ARE REQUIRED TO FOLLOW THOSE AS WELL. THOSE POLICIES AND GUIDELINES ARE INCORPORATED BY REFERENCE INTO THIS TOS. IF YOU DO NOT AGREE TO BE BOUND BY THE TOS AND TO FOLLOW ALL APPLICABLE LAWS, GUIDELINES AND POLICIES, DO NOT ACCESS OR USE THE WEBSITE AND LEAVE THE WEBSITE IMMEDIATELY.
INTERNET TECHNOLOGY AND APPLICABLE LAWS, RULES AND REGULATIONS CHANGE FREQUENTLY. ACCORDINGLY, PEAK RESERVES THE RIGHT TO MAKE CHANGES TO THIS TOS AT ANY TIME. YOUR CONTINUED USE OF THE WEBSITE CONSTITUTES ASSENT TO ANY NEW OR MODIFIED PROVISION OF THIS TOS THAT MAY BE POSTED ON THE WEBSITE. We will post the amended TOS on this page and indicate at the top of the page the date the Agreement was last revised.
1. Using the Website.
(a) Eligibility. Except as expressly provided below, Services may only be used by individuals who can form legally binding contracts under applicable law. Without limitation, minors are prohibited from becoming Users and, except as specifically provided below, using fee-based Services. Your use of the Services will be deemed to be a representation that you are 18 years of age or older or otherwise are an entity that can form legally binding contracts under applicable law.
(b) Compliance. You must comply with all of the terms and conditions of this TOS, any policies referred to below or on the website, and all applicable laws, regulations and rules when you use the website.
(c) License and Restrictions. Subject to the terms and conditions of this TOS, you are hereby granted a limited, revocable, non-exclusive right to use the Services and the content and materials on the website in the normal course of your use of the website. You may not use any third party intellectual property without the express written permission of the applicable third party, except as permitted by law. Peak will retain ownership of its intellectual property rights and you may not obtain any rights therein by virtue of this TOS or otherwise, except as expressly set forth in this TOS. You will have no right to use, copy, display, perform, create derivative works from, distribute, have distributed, transmit or sublicense from materials or content available on the website, than as may be reasonably necessary to use the Services for their intended purpose and except as expressly set forth in this TOS. You may not attempt to reverse engineer any of the technology used to provide the Services.
(d) Other Users. If you become aware of any conduct that violates this TOS, Peak encourages you to contact us. Peak reserves the right, but will have no obligation, to respond to such communications.
(e) Mobile. Peak currently provides Services accessible on certain mobile devices for free, but please be aware that your carrier's normal rates and fees, such as text messaging and data fees, will still apply.
2. Privacy Policy/Security.
(a) Privacy Policy. You agree to the terms of Peak's Privacy Policy, which is incorporated by reference into this TOS.
(b) Security. We have implemented commercially reasonable technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will be unable to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
3. Our Content.
(a) Copyright. All materials on the website and available through the Services, including without limitation, the logos, design, text, graphics, audio clips, video clips, other files, and the selection, arrangement and organization thereof are owned by Peak, its licensors or other entities. Unauthorized use of such materials is strictly prohibited. ALL RIGHTS RESERVED.
(b) Trademarks. Product names, logos, designs, titles, and words or phrases used on any Peak Website are owned by Peak, its licensors or other entities. All page headers, custom graphics, button icons and scripts are trademarks or trade dress of Peak. If you use such trademarks or logos, you must include appropriate attribution. All other trademarks, trade names and the like that appear on the website or the Services are the property of their respective owners. You may not use any of these trademarks, trade dress, or trade names, or any confusingly similar marks, dress or names, including without limitation as a part of any link, without express permission.
(c) Your Ideas. You may choose to or we may invite you to submit comments, testimonials, feedback, suggestions, ideas, and other submissions about the Services, including without limitation about how to improve the Services or our products ("Ideas"). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Peak under any fiduciary or other obligation, that we are free to disclose the Ideas on a non-confidential basis to anyone or otherwise use the Ideas without any additional compensation to you. You acknowledge that, by acceptance of your submission, Peak does not waive any rights to use similar or related ideas previously known to Peak, or developed by its employees, or obtained from sources other than you. Such disclosure, submission or offer of any Ideas shall, and hereby does, constitute a perpetual, royalty-free, worldwide, irrevocable license to us of all right, title and interest in all patent, copyright, trademark, and all other intellectual property and other rights whatsoever in and to the Ideas and a waiver of any claim based on moral rights, unfair competition, breach of implied contract, breach of confidentiality, and any other legal theory. You should not submit any Ideas to us if you do not wish to license such rights to us. We are and will be under no obligation: (i) to maintain any Ideas in confidence; (ii) to pay to you or any third party any compensation for any Ideas; or (iii) to respond to any Ideas. You are and shall remain solely responsible for the content of any Ideas you make.
4. Intellectual Property Policy.
Peak respects the intellectual property rights of others and expects its users to do the same. Peak may remove content that in its sole discretion appears to infringe the intellectual property rights of others. In addition, Peak will, in its discretion, terminate the accounts of users who infringe the intellectual property rights of others. If you believe that a user of the website or the Services has infringed your copyrights, please notify Peak's Copyright Agent. If you believe that a user of the website or the Services has infringed your trademark/service mark rights, please notify Peak's Trademark Agent.
DISCLAIMER: THE INFORMATION PROVIDED HEREIN IS FOR INFORMATIONAL PURPOSES ONLY - IT IS NOT LEGAL ADVICE. IF YOU REQUIRE LEGAL ADVICE, CONSULT AN ATTORNEY.
5. Third Party Sites. The website may contain links to third-party websites, advertisers, or services that are not owned or controlled by Peak. Peak has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites or services. If you access a third party website from the website, you do so at your own risk, and you understand that this Agreement and Peak's Privacy Policy do not apply to your use of such sites. You expressly release Peak from any and all liability arising from your use of any third-party website or services or third party owned content. Additionally, your dealings with or participation in promotions of advertisers found on the website, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Peak shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers. We encourage you to be aware of when you leave the website, and to read the terms and conditions and privacy policy of any third-party website or service that you visit.
6. Linking and Framing. You may not frame, inline link, or similarly display any Peak content or property, including, without limitation, the website.
7. Representations and Warranties. You represent and warrant to Peak that: (i) you have the full power and authority to enter into and perform your obligations under this TOS; (ii) your assent to and performance of your obligations under this TOS does not constitute a breach of or conflict with any other agreement or arrangement by which you are bound, or any applicable laws, regulations or rules; (iii) this TOS constitutes legal, valid and binding obligations on you, enforceable in accordance with its terms and conditions; (iv) you will not infringe the patent, copyright, trademark, trade secret, right of publicity or other intellectual property or proprietary right of any third party in your use of the website or the Services; and (v) you will comply with all applicable laws, rules and regulations in your use of the Services and the website, including this TOS.
8. Indemnification. You agree to defend, indemnify, and hold Peak and its employees, representatives, agents, attorneys, affiliates, directors, officers, users, managers and shareholders ("Indemnified Parties") harmless from any damage, loss, cost or expense (including without limitation, attorneys' fees and costs) incurred in connection with any claim, demand or action ("Claim") brought or asserted against any of the Indemnified Parties: (i) alleging facts or circumstances that would constitute a breach of any provision of this TOS by you, including violations of law or allegations of violation of privacy, publicity intellectual property rights related to User Created Content you submit, (ii) arising from, related to, or connected with your use of the website or the Services, (iii) any other party's access and use of the Services with your unique username, password or other appropriate security code. If you are obligated to provide indemnification pursuant to this provision, Peak may, in its sole and absolute discretion, control the disposition of any Claim at your sole cost and expense. Without limiting the foregoing, you may not settle, compromise or in any other manner dispose of any Claim without the consent of Peak.
9. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS.
(a) DISCLAIMER OF WARRANTIES. PEAK PROVIDES THE WEBSITE AND SERVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS. PEAK DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE OR SERVICES OR THEIR USE (I) WILL BE UNINTERRUPTED OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS, (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOU USE, OR (V) THE ERRORS WILL BE CORRECTED. PEAK MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THIS TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES OR WEBSITE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. PEAK DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WEBSITE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND PEAK WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
(b) EXCLUSION OF DAMAGES. To the maximum extent permitted by applicable law, in no event shall Peak, its affiliates, associates, dealers, agents or suppliers be liable for any INDIRECT, EXEMPLARY, PUNITIVE, special, incidental or consequential damages whatsoever (including but not limited to damages arising from breach of contract, warranty, tort or strict liability for loss of profits, loss of data, loss of goodwill, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever), arising out of or in any way related to the use of or inability to use the website or services, regardless of the cause of action on which they are based, even if Peak or such other ENTITIES have been advised of the possibility of such damages.
(c) LIMITATION OF LIABILITY. IN NO EVENT WILL THE LIABILITY OF PEAK IN CONNECTION WITH THIS TOS, THE WEBSITE OR SERVICES EXCEED $50.
(d) ADDITIONAL RIGHTS. YOU MAY HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE OR IN OTHER JURISDICTIONS. BECAUSE SOME STATES OR JURISDICTIONS MAY NOT ALLOW LIMITATIONS ON THE DURATION OF IMPLIED WARRANTIES, OR LIMITATIONS ON OR EXCLUSIONS OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO LICENSEE DEPENDING ON HER, HIS, OR ITS STATE OF RESIDENCE.
(e) International Use. The website and Services are controlled and operated from facilities in the United States. Peak makes no representations that the website and Services are appropriate or available for use in other locations. Those who access or use the website and Services from other jurisdictions do so by their own choice and are entirely responsible for compliance with local law, including but not limited to export and import regulations.
10. Force Majeure. Peak will not be liable for failing to perform under this TOS by the occurrence of any event beyond its reasonable control, including, without limitation, a labor disturbance, an Internet outage or interruption of service, a communications outage, failure by a service provider to Peak to perform, fire, terrorism, natural disaster or war.
11. Disputes. In light of Peak's substantial contacts with the State of Massachusetts, and your and our interests in ensuring that disputes regarding the interpretation, validity and enforceability of the TOS are resolved on a uniform basis, and Peak's execution of, and the making of, the TOS in Massachusetts, you agree that: (i) any claim, cause of action or dispute you have with Peak and any litigation involving any noncompliance with or breach of the TOS, or regarding the interpretation, validity and/or enforceability of the TOS, must be filed and exclusively conducted in the state or federal courts in Worcester County, Massachusetts; and (ii) the Agreement shall be interpreted in accordance with and governed by the laws of the State of Massachusetts, without regard for any conflict of law principles. You agree to submit to the personal jurisdiction of the state or federal courts in Worcester County, Massachusetts, for these purposes.
12. Limitation of Actions. You acknowledge and agree that, regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of, relating to, or connected with your use of the website or Services, must be filed within one calendar year after such claim or cause of action arises, or forever be barred.
13. Changes to the website or Service. Peak may, in its sole discretion, change, modify, suspend, make improvements to or discontinue any aspect of the website or the Services, temporarily or permanently, at any time without notice to you, and Peak will not be liable for doing so. Without limiting the foregoing, if you do not agree with any changes made to the website you may terminate your account as set forth below.
14. Termination.
(a) By Peak. Peak will have the right in its sole discretion, for any reason or no reason at all, without notice or liability to you or any third party, to terminate your account or your access to the website or Services, with or without cause. Such reasons may include, without limitation: (i) your breach of any part of this TOS, (ii) your violation of the rights of any third party; (iii) in the case of Services features that require payment, the invalidity of your credit card, your exceeding your credit card limit or "chargeback" of a fee or other payment; or (iv) your user account becoming inactive for an extended period of time.
(b) By You. If you are a User, you may terminate your account or your access for any reason at any time subject to this TOS.
(c) Effect of Termination. If your account is terminated, Peak may, in its sole discretion, delete any websites, files, graphics or other content or materials relating to your use of the website or Services on servers owned or operated for Peak or otherwise in its possession, and Peak will have no liability to you or any third party for doing so. Following termination, you will not be permitted to use the website or the Services. If your account or your access to the website or Services is terminated, Peak reserves the right to exercise whatever means it deems necessary to prevent unauthorized access to the website or the Services, including, but not limited to, technological barriers, IP mapping and direct contact with your Internet Service Provider (ISP). If your account is terminated, you must immediately pay Peak any fees that you owe it. Regardless of whether you have the right to access or use the website or the Services, this TOS will survive indefinitely unless and until Peak chooses to terminate it.
15. Notices and Electronic Communications. All notices required by or permitted to be given under this TOS will be in writing and delivered to the other party by any of the following methods: (i) hand delivery, (ii) certified U.S. mail, return receipt requested, postage prepaid, (iii) overnight courier, or (iv) electronic mail. If you give notice to Peak, you must use the address shown on the website. If Peak provides notice to you, Peak must use the contact information provided by you to Peak. All notices will be deemed received as follows: (i) if by hand-delivery, on the date of delivery, (ii) if delivery by U.S. Mail, on the date of receipt appearing on a return receipt card, (iii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iv) if by electronic mail, 24 hours after the message was sent, if no "system error" or other notice of non-delivery is generated. Each party agrees that any notice that it receives from the other party electronically satisfies any legal requirement that such communications be in writing.
16. Additional Terms. This TOS contains the entire understanding of you and Peak regarding the use of the website, and supersedes all prior and contemporaneous agreements and understandings between you and Peak regarding its subject matter. This TOS will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of Massachusetts without reference to conflict of law principles. This TOS and all of your rights and obligations under them (including, without limitation, your usership, if any) will not be assignable or transferable by you without the prior written consent of Peak. No failure or delay by a party in exercising any right, power or privilege under this TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under this TOS. You and Peak are independent contractors, and no agency, partnership, joint venture, employee-employer relationship is intended or created by this TOS. The invalidity or unenforceability of any provision of this TOS will not affect the validity or enforceability of any other provision of this TOS, all of which will remain in full force and effect.
