Legal Terms of Use

Last Updated June 23, 2021

1. ACCEPTANCE OF TERMS

These terms and conditions of use (“Terms of Use”) govern the use of online interfaces, products, services, websites, mobile applications and other service offerings (collectively referred to as the “Service(s)”) owned and operated by Innovation Specialists LLC (d/b/a 2nd.MD) and its affiliates and subsidiaries, including 1st.MD ("2nd.MD", “we”, “us”), and made available to registered users (“you”, “Users”). 

2. NOTICES

PLEASE NOTE: Your access to and use of this Service are subject to these Terms of Use, as well as all applicable laws and regulations. Please read these Terms of Use carefully. By clicking “accept”, you acknowledge that you have read, understand, and accept all terms and conditions contained within the Terms of Use and the Privacy Policy provided or made available to you by 2nd.MD. If you do not accept and agree to be bound by any of these Terms of Use, you are not authorized to access or otherwise use this Service or any information or Content contained on this Service. Unless otherwise indicated, any new Content added to this Service will also be subject to these Terms of Use effective upon the date of any such addition. You are encouraged to review the Service and these Terms of Use periodically for updates and changes. 

IMPORTANT NOTICE: YOUR USE OF THE SERVICE IS SUBJECT TO AN ARBITRATION PROVISION IN SECTION 24 OF these Terms of Use, REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION. Please carefully review Section 24 of these terms of use for more information.

NOT FOR EMERGENCIES: IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, IMMEDIATELY CALL YOUR DOCTOR OR DIAL “911”.

3. PRIVACY PRACTICES

You agree that information provided by you in connection with the Service and 2nd.MD shall be governed by the 2nd.MD Privacy Policy.

4. NO PRACTICE OF MEDICINE BY 2ND.MD

2nd.MD does not provide medical advice or care. The 2nd.MD Services provide users with online access to Specialists who may provide health education to Members who have chosen to participate in this Service. 2nd.MD DOES NOT PROVIDE MEDICAL DIAGNOSIS, TREATMENT, OR PRESCRIPTION OF ANY KIND. ALL INFORMATION PROVIDED ON THIS SITE OR IN CONNECTION WITH ANY COMMUNICATIONS SUPPORTED BY 2nd.MD, INCLUDING, WITHOUT LIMITATION, REAL-TIME VIDEO OR EMAIL COMMUNICATIONS BETWEEN PROFESSIONALS UTILIZING THE SITE AND CONSUMERS IS INTENDED TO BE FOR GENERAL INFORMATIONAL AND HEALTH EDUCATION PURPOSES ONLY, AND IS IN NO WAY INTENDED TO CREATE A PHYSICIAN – PATIENT RELATIONSHIP AS DEFINED BY STATE AND FEDERAL LAW. 2nd.MD IS NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL DIAGNOSIS OR TREATMENT. RELIANCE ON ANY INFORMATION PROVIDED BY 2nd.MD OR ANY PROFESSIONALS THAT UTILIZE 2nd.MD AT THE INVITATION OF 2nd.MD IS SOLELY AT YOUR OWN RISK.

All information provided by 2nd.MD is intended to be for general informational purposes only, and is in no way intended to create a provider-patient relationship as defined by state or federal law.

5. INDEPENDENCE OF SPECIALISTS AND PROFESSIONALS

The specialists and professionals utilizing or featured on the Service are subscribers and licensees to the Service and not employees. Any health education, opinions, advice, or information expressed by a professional or specialist utilizing or featured on the Service are of the professional and the professional alone. They do not reflect the opinions of 2nd.MD. 2nd.MD does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on 2nd.MD or by a licensee of 2nd.MD. 

SUCH INFORMATION IS PROVIDED ON AN "AS-IS" BASIS AND 2nd.MD DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. 2nd.MD SHALL IN NO EVENT BE LIABLE TO YOU OR TO ANYONE FOR ANY DECISION MADE OR ACTION TAKEN BY ANY PARTY (INCLUDING, WITHOUT LIMITATION, ANY USER) IN RELIANCE ON INFORMATION ABOUT PROFESSIONALS AND SPECIALISTS ON THE SERVICE. The use of the Service by any entity or individual to verify the credentials of professionals or specialists is prohibited.

All opinions and statements expressed by a specialist or professional on this Service and during any session facilitated through this Service are solely the individual and independent opinions and statements of the specialist or professional and do not reflect the opinions of 2nd.MD, its affiliates or any other organizations or institutions to which such Specialist or Professional is affiliated or provides services.

6. AVAILABILITY OF SERVICE

2nd.MD operates subject to state and federal regulations, where applicable, and the Service may not be available in your state, territory, and country. You represent that you are not a person barred from accessing the Service under the laws of the United States, the European Union, or other applicable jurisdictions in which you may be located. Accessing the Service from jurisdictions where content is illegal, or where 2nd.MD does not offer services, is prohibited.

Your access to the Service is provided on a temporary basis with no guarantee for future availability. You agree that we may immediately suspend or terminate your access to the Service or any part thereof. Cause for such measures include, without limitation: (1) breach or violation of these Terms of Use or other incorporated agreements or guidelines; (2) discontinuance or material modification to the Service; (3) unexpected technical or security issues or problems; (4) extended periods of inactivity; or (5) your engagement in fraudulent or illegal activities. You further agree that such measures may be taken in our sole discretion and without liability to you or any third party.

We use commercially reasonable efforts to maintain the Service, but we are not responsible for any defects or failures associated with the Service, any part thereof, any Feedback you provide, or any damages (such as lost profits or any other consequential or indirect damages) that may result from any such defects or failures. The Service may be inaccessible or inoperable for any reason, including, without limitation: (1) equipment malfunctions; (2) periodic maintenance procedures or repairs which we may undertake from time to time; or (3) causes beyond our reasonable control or which we could not reasonably foresee. You understand that the Service is provided over the Internet, so the quality and availability of the Service may be affected by factors outside of our control. The Service is not intended to be available 100% of the time and we do not make any representations, warranties, or guarantees regarding the reliability or availability of the Service. We do not represent, warrant, or guarantee that the Service will always be completely free of human or technological errors. We will not be liable to you or any third party for damages or losses related to the Service being unavailable.

Your contract with your mobile network provider (“Mobile Provider”) will continue to apply when accessing or using the Service on your mobile, handheld device (“Mobile Device”). You understand that your Mobile Provider may charge you fees for your use of its network connection services while accessing or using the Service, for data downloading, e-mail, text messages, for roaming, and other Mobile Provider or third-party charges. YOU ACCEPT RESPONSIBILITY FOR ALL MOBILE PROVIDER FEES.

7. PASSWORD ACCOUNTS, PASSWORDS, AND SECURITY

Users can receive access to the password-protected portions of the Service (the "User Portal"). You agree to fully, accurately, and truthfully create your Account, including but not limited to your name, email address, phone number, and password, which may become your 2nd.MD ID and credentials. The 2nd.MD ID or credentials are personal to you, and you are solely responsible for maintaining the confidentiality of your 2nd.MD ID or credentials, and for all activities that occur under such 2nd.MD ID or credentials. You agree to prohibit anyone else from using your 2nd.MD ID or credentials. You agree to (a) immediately notify 2nd.MD of any unauthorized use of your account or any other breach of security of which you become aware, and (b) exit completely from your account at the end of each online session. 2nd.MD will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by 2nd.MD or another party due to someone else using your account or password if the use was caused or permitted by You. You may not use anyone else's account at any time, without the permission of the account holder.

The Service may allow you to store your login credentials in your web browser so that you can be automatically logged in each time you access the Service. If someone else has access to your computer or web browser, the automatic login feature will allow that person to have access to your account. You are responsible for any damages to 2nd.MD or the Service resulting from unauthorized access to the Service from your account and we will have no liability to you or any third party for damages or loss related to such unauthorized access or use.

8. LIMITED LICENSE AND SERVICE ACCESS; ALL RIGHTS RESERVED

2nd.MD hereby grants you a limited, revocable, non-exclusive, non-transferable right to access and make personal use of this Service, but not to download (other than page caching) or modify it, or any portion of it, except with express written consent of 2nd.MD (e.g., downloading of PDF forms, applications, etc.). We reserve all rights not otherwise expressly granted by these Terms of Use. If you do not comply with these Terms of Use, we reserve the right to revoke any license granted in this Terms of Use and limit your access to the Service. This license does not include the right to engage in any resale or commercial use of this Service or Content (defined as text, pictures, graphics, logos, button items, images, works of authorship, and other content, information or material about 2nd.MD); any derivative use of this Service or the Content; or any use of data mining, robots, or similar data gathering and extraction tools. This Service or any portion of this Service may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without the express written consent of 2nd.MD. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of 2nd.MD without 2nd.MD's express written consent. You may not use any meta-tags or any other "hidden text" utilizing any of 2nd.MD's name(s) or service marks without the express written consent of their owners. We (or the respective third-party owners of Content) retain all right, title, and interest in this Service and any Content and features offered on this Service, including any and all intellectual property rights. We (or the respective third-party owners of Content) reserve all rights not expressly granted herein. Any unauthorized use terminates the permission or license granted by 2nd.MD. We may discontinue or alter any aspect of the Service, restrict the time the Service is available, and restrict the amount of use permitted at our sole discretion and without prior notice or liability to you. We may also install bug fixes, updates, patches, and other upgrades to the Service without prior notice or liability to you. Your only remedy is to discontinue using the Service if you do not want a modification we make to the Service.

9. COPYRIGHT

Except as otherwise expressly stated, all Content appearing on this Service is the copyrighted work of 2nd.MD or its third-party content suppliers and is protected by U.S. and international copyright laws. The compilation (meaning the collection, arrangement and assembly) of all Content is also the exclusive property of 2nd.MD or its third-party content suppliers and is protected by U.S. and international copyright laws.

You may download information from this Service and print out a hard copy for your personal use provided that you keep intact and do not remove or alter any copyright or other notice (e.g., trademark, patent, etc.) contained in the information. Except as otherwise expressly stated herein, you may not alter, modify, copy, distribute (for compensation or otherwise), transmit, display, perform, reproduce, reuse, post, publish, license, frame, download, store for subsequent use, create derivative works from, transfer, or sell any information or Content obtained from this Service, in whole or in part, including any text, images, audio, and video in any manner, without the prior written authorization of 2nd.MD or any applicable third party suppliers. The use of Content, including images, by you, or anyone else authorized by you, is prohibited unless specifically permitted by 2nd.MD. Any unauthorized use of text or images may violate copyright laws, trademark laws, the laws of privacy and publicity, and applicable regulations and statutes. 2nd.MD does not warrant or represent that your use of Content or any other materials displayed on this Service will not infringe rights of third parties. Your use of any of the Content beyond the scope of personal use may require a license from the owner of the rights to the data with respect to the use of portrait right, trademark, copyright, design right, right of utilization or any other rights of the persons, products or landscape portrayed in the provided Content. 2nd.MD is not responsible for any claims of ownership rights to any images or data against you. You will indemnify, defend and hold harmless 2nd.MD from and against any losses or claims, by an owner of data or image rights or any third party resulting from any violation by You of these Terms of Use.

If you believe that any Content on this Service violates or infringes upon your intellectual property rights pursuant to Title 17, United States Code, Section 512(c)(2), please notify us immediately at Legal@2nd.MD with all specifics necessary for us to consider and respond to your complaint. You may be asked to provide additional information and follow additional procedures for us to act on your complaint.

10. TRADEMARKS AND SERVICE MARKS

Certain trademarks on the Service are the service marks and trademarks of 2nd.MD, the specialists, the professionals or other licensees of 2nd.MD or other third parties. The domain name for this Service, all page headers, custom graphics, and button icons are service marks, trademarks, logos, and/or trade dress of 2nd.MD and/or other third parties. All other trademarks, service marks, trade dress, product names, company names or logos, whether registered or not, on the Service are the property of their respective owners. In addition to complying with all applicable laws, you agree that you will not use any such trademarks, service marks, trade dress, or other logos from this Service without the prior written authorization of 2nd.MD and/or other third parties which authorization may be withheld in such parties’ sole discretion.

11. CONNECTION REQUIREMENTS

You are responsible for providing and maintaining, at your own risk, option and expense, any hardware, software and communication lines required to access and use this Service, and 2nd.MD reserves the right to change the access configuration of this Service at any time without prior notice.

12. PROHIBITED USE

Any use or attempted use of this Service (i) for any unlawful, unauthorized, fraudulent or malicious purpose, or (ii) that could damage, disable, overburden, or impair any server, or the network(s) connected to any server, or (iii) interfere with any other party's use and enjoyment of the Service, or (iv) to gain unauthorized access to any other accounts, computer systems or networks connected to any server or systems through hacking, password mining or any other means, or (v) to access systems, data or information not intended by 2nd.MD to be made accessible to a user, or (vi) attempt to obtain any materials or information through any means not intentionally made available by 2nd.MD, or (vii) any use other than the business purpose for which it was intended, is prohibited.

In addition, in connection with your use of the Service, you agree you will not:

a) Upload or transmit any message, information, data, text, software or images, or other content ("Material") that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable, or that may invade another's right of privacy or publicity;

b) Create a false identity for the purpose of misleading others or impersonate any person or entity, including, without limitation, any 2nd.MD representative, or falsely state or otherwise misrepresent your affiliation with a person or entity;

c) Upload or transmit any material that you do not have a right to reproduce, display or transmit under any law or under contractual or fiduciary relationships (such as nondisclosure agreements);

d) Upload files that contain viruses, trojan horses, worms, time bombs, cancel-bots, corrupted files, or any other similar software or programs that may damage the operation of another's computer or property of another;

e) Delete any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature;

f) Use the Service's communication features in a manner that adversely affects the availability of its resources to other users (e.g., excessive shouting, use of all caps, or flooding continuous posting of repetitive text);

g) Upload or transmit any unsolicited advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes" or any other form of solicitation, commercial or otherwise;

h) Violate any applicable local, state, national or international law;

i) Upload or transmit any material that infringes any patent, trademark, service mark, trade secret, copyright or other proprietary rights of any party;

j) Delete or revise any material posted by any other person or entity;

k) Manipulate or otherwise display the Service by using framing, mirroring or similar navigational technology or directly link to any portion of the Service other than the main homepage, www.2nd.md, in accordance with the Limited License and Service Access outlined above;

l) Probe, scan, test the vulnerability of or breach the authentication measures of, this Service or any related networks or systems;

m) Register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any party for any services or any contests, promotions or sweepstakes if you are not expressly authorized by such party to do so;

n) Harvest or otherwise collect information about others, including e-mail addresses; or

o) Use any robot, spider, scraper, or other automated or manual means to access this Service, or copy any content or information on this Service. 2nd.MD reserves the right to take whatever lawful actions it may deem appropriate in response to actual or suspected violations of the foregoing, including, without limitation, the suspension or termination of the user's access and/or account. 2nd.MD may cooperate with legal authorities and/or third parties in the investigation of any suspected or alleged crime or civil wrong. Except as may be expressly limited by the Privacy Policy, 2nd.MD reserves the right at all times to disclose any information as required by law after first giving you the opportunity to seek a protective order or motion to quash, unless prohibited by law.

13. RIGHT TO MONITOR

2nd.MD neither actively monitors general use of this Service under normal circumstances nor exercises editorial control over the content of any third party's site, e-mail transmission, news group, or other material created or accessible over or through this Service. However, 2nd.MD does reserve the right to monitor such use at any time as it deems appropriate and to remove any materials that, in 2nd.MD's sole discretion, may be illegal, may subject 2nd.MD or other third party to liability, may violate these Terms of Use, or are, in the sole discretion of 2nd.MD, inconsistent with 2nd.MD's purpose for this Service.

14. NO 2ND.MD EDITORIAL CONTROL OF THIRD-PARTY CONTENT; NO STATEMENT AS TO ACCURACY

To the extent that any of the Content included in the Service is provided by third party content providers or other Service users, 2nd.MD has no editorial control or responsibility over such Content. Therefore, any opinions, statements, products, services or other information expressed or made available by third party suppliers or users on this Service are those of such third-party suppliers or users, respectively. 2nd.MD does not represent or endorse the accuracy or reliability of any opinion, statement or other information provided by any third party, or represent or warrant that your use of the Content displayed on this Service or referenced content or service providers will not infringe rights of third parties not owned by or affiliated with 2nd.MD.

15. LINKS TO THIRD PARTY WEBSITES

This Service may contain hyperlinks to other sites owned and operated by parties other than 2nd.MD. Such hyperlinks are provided only for ready reference and ease of use. We do not control such websites and cannot be held responsible for their content or accuracy and do not endorse these sites unless we specifically so state. In the event this Service provides hyperlinks to other websites that are not owned, operated or maintained by 2nd.MD, you acknowledge and agree that 2nd.MD is not responsible for and is not liable for the content, products, services or other materials on or available from such websites. We accept no liability for any information, products, advertisements, content, services or software accessible through these third-party websites or for any action you may take as a result of linking to any such website. Any such websites are likely to set forth specific terms of use and privacy policies that you should review. 2nd.MD is under no obligation to maintain any link on this Service and may remove a link at any time in its sole discretion for any reason whatsoever. 2nd.MD shall not be responsible or liable, directly or indirectly, for any damages or losses caused or alleged to be caused by or in connection with the use of or reliance on such content, products, services or other materials available on or through any such website. 2nd.MD is not responsible for the privacy practices of any other websites.

16. CONSENT TO RECEIVE CALLS, TEXT MESSAGES AND VIDEO RECORDING

By providing your mobile number you are agreeing to be contacted by or on behalf of 2nd.MD at the mobile number you have provided, including calls and text messages, to receive informational, product or service related (e.g., progress tracking, reminders, etc.) communications relating to the Service. 2nd.MD does not charge a fee for text messaging service. However, standard messaging and data rates may apply from your mobile carrier, and we are not responsible for any charges from a person’s service provider that may result from us providing this service. For help, text the word HELP to “2NDMD”. To stop receiving text messages text the word STOP to “2NDMD”. We may confirm your opt out by text message. After this, you will no longer received SMS messages from us. If you want to join again, just sign up as you did the first time and we will start sending SMS messages to you again. If you subscribe to multiple types of text messages from us, we may unsubscribe you from the service that most recently sent you a message or respond to your STOP message by texting you a request to identify services you wish to stop. Please note, that by withdrawing your consent, some Service features and certain services may no longer be available to you. Keep in mind that if you stop receiving text messages from us you may not receive important and helpful information and reminders about your services.

2nd.MD may record and preserve (text, audio, and video) all or part of your interaction (“Recordings”). Such Recordings are used for quality assurance purposes only, to better deliver to you the Service and related services. 2nd.MD will keep such Recordings confidential. By accessing and using the Service, you agree and consent to such Recordings for the purposes and uses set forth in these Terms of Use and as otherwise set forth in the Privacy Policy.

2nd.MD is committed to being compliant with the Telephone Consumer Protection Act (“TCPA”) and similar state laws. At registration, you were provided with the opportunity to opt-in to calls and text messages. If you no longer wish to receive such texts, please follow the instructions within the text message and/or contact us using the information provided below

2nd.MD is also committed to being compliant with CANSPAM and similar state laws. If you no longer wish to receive our emails or newsletters, please follow the instructions within the email and/or contact us using the information provided below.

2nd.MD may communicate, electronically or via telephone with you about your benefit plan, programs, products, or services that are or may be available to you in connection with your transactions with us including, but not limited to, platform updates, general wellness reminders or information, prescription reminders, appointment reminders, general health information, newsletters, and surveys. These electronic communications may contain protected health information. You acknowledge and accept that such communications may be sent unencrypted and there is some risk of disclosure or interception of the contents of these communications.

17. SPECIAL RULES FOR USER UNDER 18 YEARS OLD

If you are under the age of eighteen (18) and wish to create an account with 2nd.MD (“Account”), your parent or legal guardian must create the Account, submit your personal information, and agree to these Terms of Use on your behalf. If you are under the age of 13, you may only use our Service with the supervision and consent of your parents or legal guardians.

18. DISCLAIMER

Content and other information contained on this Service has been prepared by 2nd.MD as a convenience to its users and is not intended to constitute advice or recommendations upon which a user may rely. 2nd.MD has used reasonable efforts in collecting, preparing and providing quality information and material, but makes no warranty or guarantee about the accuracy, completeness, or adequacy of the Content or other information contained in or linked to this Service or any other website maintained by 2nd.MD. Users relying on Content or other information from this Service do so at their own risk. 

THE 2ND.MD SERVICE IS PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS. 2nd.MD AND ITS LICENSEES (INCLUDING THE SPECIALISTS AND PROFESSIONALS UTILIZING THE SERVICE), TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES' RIGHTS, SATISFACTORY QUALITY AND FITNESS FOR PARTICULAR PURPOSE. 2nd.MD MAKES NO WARRANTY THAT THE CONTENT IS ACCURATE, TIMELY, UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, OR THAT ANY SUCH PROBLEMS WILL BE CORRECTED.

WITHOUT LIMITATION, WE MAKE NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE RESULTS OBTAINED FROM THE USE OF THE SERVICE OR ANY INFORMATION OR CONTENT FOUND ON THE SERVICE WILL BE ACCURATE OR RELIABLE, THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICE WILL BE CORRECTED, OR THAT THE QUALITY OF ANY INFORMATION, CONTENT, OR OTHER MATERIALS OBTAINED THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.

ANY CONTENT OR OTHER MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR SOLE RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU THROUGH THE SERVICE OR ANY PRODUCT WILL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS 2ND.MD, OUR OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, PARTNERS, AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, DEMANDS, OR EXPENSES, INCLUDING ATTORNEY’S FEES AND COSTS AND EXPENSES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH: (A) YOUR USE OF OUR SERVICE, (B) YOUR VIOLATION OF THESE TERMS OF USE, (C) ANY CONTENT YOU PROVIDE THROUGH OUR SERVICE, (D) YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD PARTY, AND (E) YOUR NEGLIGENCE OR WILLFUL MISCONDUCT.

19. LIMITATION OF LIABILITY

IN NO EVENT SHALL 2nd.MD, ITS LICENSEES (INCLUDING THE SPECIALISTS AND PROFESSIONALS UTILIZING THE SERVICE), OR ANY THIRD PARTIES MENTIONED ON THE SERVICE BE LIABLE FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, PERSONAL INJURY/WRONGFUL DEATH, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT 2nd.MD ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 2NDMD, ITS LICENSEES (INCLUDING THE SPECIALISTS AND PROFESSIONALS UTILIZING THE SERVICE), OR ANY THIRD PARTIES MENTIONED ON THE SERVICE SHALL BE LIABLE ONLY TO THE EXTENT OF ACTUAL DAMAGES INCURRED BY YOU, NOT TO EXCEED U.S. $1,000. 2nd.MD, ITS LICENSEES (INCLUDING THE SPECIALISTS AND PROFESSIONALS UTILIZING THE SERVICE), OR ANY THIRD PARTIES MENTIONED ON THE SERVICE ARE NOT LIABLE FOR ANY PERSONAL INJURY, INCLUDING DEATH, CAUSED BY YOUR USE OR MISUSE OF THE SERVICE. ANY CLAIMS ARISING IN CONNECTION WITH YOUR USE OF THE SERVICE MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE DATE OF THE EVENT GIVING RISE TO SUCH ACTION OCCURRED. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS PREDICATED UPON YOUR WAIVER OF ANY RIGHT TO PARTICIPATE IN A CLASS ACTION SUIT FOR ANY LOSSES OR DAMAGES RESULTING FROM YOUR USE OF THE SERVICE.

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

20. NOTICES

Any notices to you from 2nd.MD regarding the Service or these Terms of Use will be posted on this Service or made by e-mail or regular mail.

21. ELECTRONIC COMMUNICATIONS

When you use the Service, or send e-mails, messages, and other communications from your desktop or mobile device to us, you are communicating with us or the specialist electronically. You consent to receive communications from us electronically. You agree that (a) all agreements and consents can be signed electronically and (b) all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such notices and other communications be in writing. 2nd.MD may contact you by telephone, mail, or e-mail to verify your account information. You further agree that any notices provided by us electronically are deemed to be given and received on the date we transmit any such electronic communication as described in these Terms of Use.

22. CONTENT UPLOAD TERMS OF USE

2nd.MD collects and uploads to 2nd.MD’s own Services and social media sites, blogs, other digital properties operated by 2nd.MD, and printed material and other printed matter for the use by 2nd.MD in marketing, promotional, advertising and other customer engagement (hereinafter the “2nd.MD Properties”) of photos, text, graphics, audio, video, location information, comments and other materials from social media sites, including but not limited to Facebook, Twitter, Instagram, and YouTube that users have tagged or permitted others to tag with 2nd.MD related handles or @mentions and/or that users or others acting on their behalf or with their permission upload directly with or without tags onto the 2nd.MD Properties (hereinafter collectively “User Content”).

2nd.MD reserves the right to alter these Content Upload Terms of Use without advance notice by posting a revised Content Upload Terms of Use. Accordingly, you should review the Content Upload Terms of Use each time you provide User Content, to stay informed of any changes to the Content Upload Terms of Use.

User Content - By providing User Content, you hereby agree that every time you and/or someone else acting on your behalf or with your direct or implied permission upload(s), post(s), display(s) and/or otherwise use(s) your User Content on and/or in connection with any websites, social media websites or platforms, blogs, or other online forums or media, including but not limited to those listed above, regardless of whether you or others acting on your behalf or with your permission see or accept these Content Upload Terms of Use or any modifications thereof in the future, you hereby grant to 2nd.MD and all of their respective agents, licensees, sublicensees, contractors, successors, legal representatives, assigns, and third-party service providers, and any other third parties engaged by any of the foregoing, including but not limited to marketing or public relations agencies, and the employees, officers and directors of all of the foregoing (hereinafter collectively, the “Licensed Parties”) the worldwide, perpetual, irrevocable, royalty-free, fully-paid, non-exclusive, transferable, sublicensable right to use your User Content in any manner to be determined in the Licensed Parties’ sole discretion, including but not limited to on webpages and social media pages operated by the Licensed Parties, in promotional e-mails and advertisements, and in any and all other marketing, promotional and advertising initiatives, and in any media now or hereafter known.

The Licensed Parties may use, display, reproduce, distribute, transmit, create derivative works from, combine with other materials, alter and/or edit your User Content in any manner in their sole discretion, with no obligation to you whatsoever.

You grant the Licensed Parties the right to use your name, image, likeness, descriptions of you, location or other identifying information, including but not limited to your voice, in connection with any use of your User Content.

You acknowledge that the Licensed Parties may elect not to use your User Content at this time, but may do so at its own discretion at a later date. You grant the Licensed Parties the option to contact you for 2nd.MD advertisement campaigns.

You hereby agree and represent and warrant that (i) you are solely responsible for your User Content, (ii) you own all rights in and to your User Content and/or have obtained appropriate rights and permissions from any and all other persons and/or entities who own, manage or otherwise claim any rights with respect to such User Content, (iii) you are not a minor, (iv) the Licensed Parties’ use of your User Content as described herein will not violate the rights, including but not limited to copyright, trademark, patent, trade secret, privacy, publicity, moral, proprietary or other rights, of any third party, or any law, rule or regulation, and (v) the User Content is not libelous, defamatory, obscene, pornographic, abusive, indecent, threatening, harassing, hateful, or offensive or otherwise unlawful.

You hereby agree and represent and warrant that (i) you, and only you, made your User Content voluntarily, (ii) it contains your own opinion; (iii) it is based on your own experience(s) with 2nd.MD or one of its partners, customers, and/or its services; and (iv) and it is true and correct to the best of your knowledge.

You hereby release, discharge and agree to hold the Licensed Parties, and any person acting on their behalf, harmless from any liability related in any way to the Licensed Parties’ use of your User Content.

User Content Privacy - You must respect people’s privacy at all times and must not include confidential or private information in your User Content. Examples of confidential or private information are details of an individual’s private life, email or physical addresses, telephone numbers or any other contact information of any person. Before posting anything to this or any other site, please keep in mind that after you post information on the internet you have no control over it.

The User Content that you submit is deemed non-confidential and the Licensed Parties have no obligation to maintain the confidentiality of any information, in whatever form, contained in any submission. By using this Service or the related services, you are consenting to the Licensed Parties’ collection of any personal information you provide, on behalf of the Licensed Parties for the Licensed Parties’ use and disclosure in connection with the use of your User Content as described herein. If you do not agree to the collection, use and disclosure of your personal information in this way, please do provide User Content.

Any User Content submitted by you can be used at 2nd.MD’s sole discretion. 2nd.MD reserves the right to modify, summarize or delete any User Content. 2nd.MD does not guarantee that there are any possibilities for you to edit or delete the User Content you submit.

No Remuneration - You understand that there will be no financial or other remuneration for any upload and use of your User Content to the 2nd.MD Properties in marketing, promotional, advertising, and other customer engagement now or in the future.

INDEMNIFICATION – YOU AGREE TO INDEMNIFY AND DEFEND THE LICENSED PARTIES AGAINST ANY AND ALL CLAIMS BY THIRD PARTIES ARISING OUT OF OR IN CONNECTION WITH YOUR USER CONTENT, EXCEPT TO THE EXTENT SUCH CLAIMS ARISE FROM LICENSED PARTIES EDITING OR ALTERATION OF YOUR USER CONTENT.

Notice and Take Down – If you believe that any User Content infringes your rights, you may provide us with written notification of your claim to:

2nd.MD
Attn: Privacy
9655 Katy Freeway, Suite 300
Houston, TX 77024
Privacy@2nd.MD

To be effective, your written notification must include (a) your name and address where applicable; (b) an explanation of why you are affected; (c) a precise description of the allegedly illegal content; (d) the reason why the content is illegal.

We welcome your comments, feedback, information, or materials regarding the Service or any of our other products or services (collectively, “Feedback”). Your Feedback will become our property upon your submission to us. By submitting your Feedback to us, you agree to assign, and hereby irrevocably assign to us, all right, title, and interest in and to the Feedback and all copyrights and other intellectual property rights embodied in such Feedback on a worldwide basis. We will be free to use, copy, distribute, publish and modify your Feedback on an unrestricted basis, without compensation to you. Moreover, you hereby assign or waive, as the case may be, any moral rights that you may have in or to the Feedback.

23. GENERAL PROVISIONS

Entire Agreement - These Terms of Use, the Contract, and other policies 2nd.MD may post on this Service constitute the entire agreement between 2nd.MD and you in connection with your use of this Service including, without limitation, the User Portal, and supersedes any prior agreements between 2nd.MD and you regarding use of this Service, including prior versions of these Terms of Use.  These Terms of Use and any hyperlinked policies and procedures constitute the entire agreement between you and 2nd.MD with respect to the subject matter hereof and supersede all prior agreements, both oral and written, with respect to the subject matter hereof. We may revise and update these Terms of Use from time to time, and will post the updated Terms of Use to the User Portal. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THIS AGREEMENT, ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Although we are not obligated to provide you with notice of any changes, any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Your continued use of the Service will constitute your agreement to any new provisions within the revised Terms of Use.

Governing Law; Severability of Provisions - The Terms of Use are governed by the laws of the State of Texas, USA and controlling United States Federal Law without regard to any conflicts of law provisions. All parts of these Terms of Use apply to the maximum extent permitted by law. We both agree that if we cannot enforce a part of this contract as written, then that part will be replaced with terms that most closely match the intent of the part we cannot enforce to the extent permitted by law. The invalidity of part of these Terms of Use will not affect the validity and enforceability of the remaining provisions. The section headings are for convenience and do not have any force or effect.

To the extent feasible, the parties desire to resolve any dispute, claim or controversy arising out of or relating to your use of or access to the Service, these Terms of Use, or the breach, termination, enforcement, interpretation, or validity of this these Terms of Use, including the determination of the scope or applicability of this agreement to arbitration (a “Dispute”) through discussions and negotiations between each other. The parties agree to attempt to resolve any Disputes by negotiation with the other party (by phone, electronic correspondence, or written correspondence). If we are not able to resolve any Dispute ourselves, you and 2nd.MD agree to resolve such Dispute through confidential binding arbitration as set forth below. If you and 2nd.MD are unable to resolve a Dispute through informal negotiations, either you or 2nd.MD may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”) both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in these Terms of Use you and 2nd.MD may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. You hereby agree that you understand the consequences of agreeing to binding arbitration under this Section, including giving up any constitutional rights to have the Dispute determined by a court of law or by a jury and any right that you may have under Article 13 of the State Bar Act to have a trial de novo by a court after nonbinding arbitration of a dispute concerning fees or costs; that discovery of information in arbitration may be limited; and that the arbitration decision will be final and binding, except to the limited extent that judicial review might be available. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THESE TERMS OF USE MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.

No Agency Relationship - Neither these Terms of Use, nor any Content, materials or features of this Service create any partnership, joint venture, employment, or other agency relationship between us. You may not enter into any contract on our behalf or bind us in any way.

Remedies - You agree that any violation, or threatened violation, by you of these Terms of Use constitutes an unlawful and unfair business practice that will cause us irreparable and unquantifiable harm. You also agree that monetary damages would be inadequate for such harm and consent to our obtaining any injunctive or equitable relief that we deem necessary or appropriate. These remedies are in addition to any other remedies we may have at law or in equity.

Assignment - you may not assign, transfer, or sell (voluntarily or by operation of law) your rights or obligations under these Terms of Use, nor delegate your duties hereunder to any other person, without our prior written consent. Any purported assignment without our consent will be void and will constitute a breach of this Agreement. We may assign these Terms of Use or delegate or subcontract our obligations under this Agreement at any time.

24. CONTACT US

If you have any questions or concerns about these Terms of Use, please contact us at Privacy@2nd.MD. We will respond to your questions or concerns promptly after we receive them.