PLEASE READ: THESE TERMS CONTAIN A MANDATORY ARBITRATION AGREEMENT REQUIRING ANY DISPUTE BETWEEN YOU AND CASANA, SUBJECT TO LIMITED EXCEPTIONS, TO BE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS AND REQUIRING YOU TO FOREGO JURY TRIALS, CLASS OR COLLECTIVE ACTIONS OR PROCEEDINGS, AND ALL OTHER TYPES OF COURT PROCEEDINGS OF ANY KIND. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT FOLLOWING THE OPT-OUT PROCEDURES IN THE “BINDING ARBITRATION AND CLASS ACTION WAIVER” SECTION BELOW, YOU WILL BE BOUND BY THIS ARBITRATION AGREEMENT. BY AGREEING TO THESE TERMS, YOU ACKNOWLEDGE THAT YOU UNDERSTAND AND EXPRESSLY AGREE TO THE MANDATORY ARBITRATION AGREEMENT. PLEASE READ IT CAREFULLY.
1. License to Use Website.
Subject to your compliance with these Terms, Casana hereby grants you a non-transferable, non-exclusive, non-assignable, revocable license (without right of sublicense) to access and use the Website and the content provided or made available through the Website solely for your information and personal use only.
2. User Representation.
You may not use the Website and may not accept these Terms if you are not of legal age to form a binding contract with Casana. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. Any use of the Website not expressly provided for herein is expressly prohibited.
You agree that you will not, and will not assist, encourage, or enable others to: (a) breach or circumvent any applicable laws or regulations, third party rights, or these Terms; (b) use the Website and/or Content (as defined below) for any unlawful, invasive, infringing, abusive, tortious, defamatory, libelous, or fraudulent purpose; (c) decompile, disassemble, or reverse engineer any of the software or content used in any part of the Website; (d) use any robots, spider, crawler, scraper, or other automated means or processes to access, collect data, or other content from or otherwise interact with the Website and/or Content for any purpose other than as expressly permitted under these Terms; (e) use any device, software, or routine to interfere or attempt to interfere with the proper working of the Website and/or Content, or that may damage or harm Casana and any system, data, or personal information contained in the Website; (f) use the Website to send unsolicited communications, promotions, advertisements, or spam; (g) infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights that belong to or are licensed to Casana or any other third parties; (h) circumvent any technical measures used to provide the Website and/or Content; (i) use the Website and/or Content to impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; (j) use the Website and/or Content to develop a product or service that competes with the Website; or (k) use the Website and/or Content to transmit any material that contains adware, malware, spyware, software viruses, or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment.
4. Intellectual Property.
Casana is the owner or licensee of the Website and all information, materials, and other content that is made available and/or appears on or through the Website (collectively, the “Content”), including all intellectual property rights therein. You acknowledge that the Content is protected by copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws.
All trademarks, service marks, and trade names appearing on the Website (“Marks”) are the property of Casana and/or third party licensors. You are not authorized to use any such Marks without the prior written consent of Casana.
Except as expressly provided in these Terms, nothing on the Website or its Content will be construed as conferring any right or license to you under any of Casana’s intellectual property rights, whether by estoppel, implication, waiver, or otherwise.
You may (but are not required to) provide us with suggestions, comments or other feedback regarding the Website and/or Content (“Feedback”). If you do provide us with Feedback, then we may, and you hereby grant us a non-exclusive, worldwide, royalty-free, irrevocable, sublicensable, perpetual license to, use, disclose, reproduce, publish, distribute and otherwise commercially exploit such Feedback for any purpose, without compensation to you. Any Feedback you submit to us will be considered non-confidential and non-proprietary to you.
6. Term and Termination.
These Terms will remain in full force and effect while you use the Website. We may, in our sole and absolute discretion and without limiting other remedies available to us, modify, suspend, terminate, or discontinue access to all or part of the Website and/or Content for any reason and at any time without notice, and without liability to you of any kind whatsoever. We may also, in our sole discretion, discontinue providing the Website, or any part thereof, with or without notice. You may terminate these Terms at any time by discontinuing your use of the Website.
Following termination of these Terms, the following sections will survive: Sections 4 (Intellectual Property), 6 (Term and Termination), 7 (Disclaimer of Warranties), 8 (Limitation of Liability), 9 (Indemnification), 11 (Privacy), 13 (Binding Arbitration and Class Action Waiver), 14 (Miscellaneous), together with all other provisions that by their plain meaning are intended to survive.
7. Disclaimer of Warranties.
THE WEBSITE AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED BY US TO THE EXTENT PERMITTED BY APPLICABLE LAW. WE DO NOT WARRANT THAT THE WEBSITE WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING (A) THE ACCURACY, CORRECTNESS, COMPLETENESS, RELIABILITY, SUITABILITY, AVAILABILITY, OR OPERATION OF THE WEBSITE AND CONTENT; (B) YOUR USE OF THE WEBSITE AND CONTENT; OR (C) ANY THIRD PARTY MATERIALS YOU MAY ACCESS THROUGH THE WEBSITE. YOUR USE OF THE WEBSITE IS SOLELY AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT ANY DATA, ADVICE AND/OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING THEREFROM.
YOU EXPRESSLY AGREE THAT THE WEBSITE AND/OR CONTENT DOES NOT INVOLVE THE PROVISION OF MEDICAL ADVICE BY CASANA. THE WEBSITE AND/OR CONTENT IS NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE OR MEDICAL CONDITION. THE WEBSITE IS FOR INFORMATIONAL PURPOSES ONLY AND CANNOT REPLACE THE SERVICES OF PHYSICIANS OR MEDICAL PROFESSIONALS.
THE WEBSITE AND THE CONTENT IS NOT INTENDED TO BE AND SHOULD NOT BE USED IN PLACE OF (A) THE ADVICE OF YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, (B) A VISIT CALL, OR CONSULTATION WITH YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, OR (C) INFORMATION CONTAINED ON OR IN ANY PRODUCT PACKAGING OR LABEL.
8. Limitation of Liability.
IN NO EVENT WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, OR LICENSORS BE LIABLE UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STATUTORY, OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATED TO YOUR USE OF THE WEBSITE AND/OR CONTENT (EVEN IF WE WERE ADVISED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES). NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR AGGREGATE LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION IS LIMITED TO ONE HUNDRED U.S. DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, SO SUCH DISCLAIMERS AND EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE SCOPE AND DURATION OF OUR WARRANTIES AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
10. Changes to these Terms.
We reserve the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time. If we make material changes to these Terms, we will notify you by updating the date of these Terms and posting it on the Website. If required by law, we will also provide notification of changes in another way that we believe is reasonably likely to reach you, such as via email or another manner through the Website. Any modifications to these Terms will be effective upon our posting the modified version (or as otherwise indicated at the time of posting). In all cases, your use of the Website after the effective date of any modified Terms indicates your acceptance of the modified Terms.
12. Third Party Materials.
The Website may display, include, or make available third party content (including data, information, applications, and other products, services, and/or materials) or provide links to third party websites, applications, and services (“Third Party Materials”). You acknowledge and agree that Casana is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Casana does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions. Links to such Third Party Materials are not an endorsement by Casana of such Third Party Materials.
13. BINDING ARBITRATION AND CLASS ACTION WAIVER (“ARBITRATION AGREEMENT”)
Informal Dispute Resolution. In the event of any dispute, claim, or controversy arising out of or relating to any part of these Terms, or the existence, breach, termination, enforcement, interpretation, or validity thereof (collectively, “Disputes”), please contact us at Casana Care, Inc., 150 Metro Park, Suite A, Rochester, NY 14623, Attention: Legal Department, and we will try to resolve your concerns through informal negotiation within sixty (60) days from the date of the notice of Dispute is received. If we cannot resolve the Dispute after sixty (60) days, either party may request arbitration as explained in this section.
Notice of Dispute. If any party intends to seek arbitration, the party seeking arbitration must first notify the other party of the Dispute in writing. Notice should be sent to Casana Care, Inc., 150 Metro Park, Suite A, Rochester, NY 14623, Attention: Legal Department. The notice must include your name, address, and contact information, the facts giving rise to the Dispute, and the relief requested.
Mandatory Binding Arbitration. By agreeing to these Terms, you agree that any Dispute shall be finally settled by binding individual arbitration in accordance with the rules and procedures of the American Arbitration Association (“AAA”), and not in a court of law in any jurisdiction, and not in a class, representative, or consolidated action or proceeding, as further set forth below. You and Casana agree that one (1) arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any Disputes relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. Judgment of the award rendered by the arbitrator may be confirmed, reduced to judgment, and entered in any court of competent jurisdiction as necessary to protect Casana’s rights or its property or those of its employees, agents, suppliers, and contractors.
Class Action Waiver. You acknowledge and agree that you and Casana are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and Casana agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. If any court or arbitrator determines that the class action waiver set forth in this Section is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the entirety of the Arbitration Agreement set forth in this Section will be deemed null and void and you and Casana will be deemed to have not agreed to arbitrate Disputes on an individual basis. Notwithstanding your and Casana’s agreement to resolve all Disputes through arbitration, you and Casana each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
Rules, Procedures, and Governing Law. The arbitration will be administered by the AAA under its Consumer Arbitration Rules and any supplementary rules then in effect (the “AAA Rules”), except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. Notwithstanding any choice of law or other provision in the Terms, you and Casana agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”) will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of you and Casana that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, that issue will be resolved under the laws of the State of New York, without regard to its conflict of laws provisions.
A party who desires to initiate an arbitration must submit a written Demand for Arbitration to the AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org. You can contact AAA for more information on how to commence an arbitration proceeding at www.adr.org or 1-800-778-7879.
For claims under $10,000, you may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. If your claim is at or above $10,000, your right to a hearing will be determined by the AAA Rules. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s applicable rules. SFERA will reimburse those fees for claims totaling less than $10,000, unless the arbitrator finds your Dispute frivolous.
Opt-out Procedure. You can choose to reject this Arbitration Agreement by sending us a written opt-out notice (“Opt-Out Notice”) within thirty (30) days following the date you first agree to these Terms by email to email@example.com or by mail at Casana Care, Inc., c/o Legal Department, 150 Metro Park, Suite A, Rochester, NY 14623. If mailed, the Opt-Out Notice must be postmarked no later than thirty (30) days following the date you first agree to these Terms. To be effective, your Opt-Out Notice must contain your name, address, and signature. If you opt out of the Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us.
15. Contact Us.
If you have any questions or concerns at all about these Terms, please contact us at:
Casana Care, Inc.
150 Metro Park,
Suite ARochester, NY 14623
Effective as of August 31st, 2023.