Terms of Service   

Last updated: June 29, 2023 

Welcome to Ōmcare. Ōmcare Inc. (“Ōmcare”, “we”, “us”, “our”, or similar) offers the Ōmcare Home Health Hub®, our proprietary on-time medication dispensation device and software platform, and the Ōmcare mobile application, available via the Apple Store and Google Play, as well as information about our innovative solutions via our website located at omcare.com (collectively, the “Services”).   

These Terms of Service (“Terms”) are by and between you and Ōmcare and govern your access and use of the Services. “You” and similar terms means you, as an individual, as well as any organization, business, or entity on whose behalf you are accessing or using the Services (“Organization”). By accessing or using the Services, and entering into these Terms, you represent and warrant that you are authorized to enter into these Terms on behalf of yourself and such Organization.  

By: (i) accessing or using the Services, including visiting our website, downloading or installing the Ōmcare mobile application, interacting with or using the Ōmcare Home Health Hub® device, software, or platform, (ii) entering into an Order (defined below), or (iii) otherwise clicking on the “I Agree,” “Submit,” “Create Account,” or similar button or check box when prompted, you accept and agree to be bound and abide by these Terms. You also agree to bind the Organization on whose behalf you are accessing or using the Services. If you do not want to agree to these Terms, you must not access or use the Services. 

WHILE ŌMCARE OPERATES A HEALTH TECHNOLOGY SYSTEM, ŌMCARE DOES NOT PROVIDE MEDICAL, PROFESSIONAL, OR LICENSED ADVICE AND IS NOT A SUBSTITUTE FOR CONSULTATION WITH A HEALTH CARE PROFESSIONAL. You should seek medical advice from a qualified health care professional for any questions related to your health. Any information provided via the Services by Ōmcare, including answers to health-related questions, are for informational purposes only; reliance on any information provided by Ōmcare is solely at your own risk. To the extent Ōmcare publishes on its website or in its applications any explicit or implied recommendation of any particular product or service, such recommendation is only a general recommendation that is not specific to any particular person or illness. 

THESE TERMS CONTAIN A CLASS ACTION WAIVER AND WAIVER OF JURY TRIAL; PLEASE REVIEW THESE TERMS CAREFULLY. 

You understand that we reserve the right to change or amend these Terms from time to time. Except as otherwise required by law, all changes shall be immediately effective upon their posting to the Services. You acknowledge and agree that your continued access and use of the Services following such changes shall be deemed acceptance by you of any new or amended provisions of these Terms. 

1. SERVICES. The Services specifically includes (and these Terms apply to) your access and use of the following:  

  • Ōmcare Home Health Hub® Device (“Device”) – an all-in-one home telehealth solution that enables remote care and ensures the right medication at the right time. Ōmcare is not a pharmacy and will not provide any medications for use in the Device.  
  • Ōmcare Home Health Hub® Software Platform (“Platform”) – the operating system of the Device. 
  • Ōmcare Home Health Hub® Mobile Application (“App”) – the mobile application for remote engagement with the device and device user. 

The Services to which you are receiving access and a license to use pursuant to these Terms will be identified in the corresponding purchase order, order form, invoice, online store purchase choice, or online subscription or user type/license choice (collectively, “Order”).  

By accessing or using the Services, and/or authorizing the use of the Services by another individual, you represent and warrant that you are 13 years of age or older and otherwise meet all of the requirements contained herein to enter into these Terms. If you do not meet all of these requirements, you must not access or use the Services. Those who choose to access the Services from outside of the United States do so on their own initiative and at their own risk and are responsible for compliance with all applicable laws, rules, and regulations in their respective location in doing so.  

2. PRIVACY POLICY. Your access and use of the Services, including your creation of an account with Ōmcare, is subject to the Ōmcare Privacy Policy. Please carefully review our Privacy Policy. You agree that the collection, use, and disclosure of your information is governed by the Ōmcare Privacy Policy, and you consent to all actions we take with respect to your information consistent with the Ōmcare Privacy Policy.  

IF YOU ARE A OWNER/PATIENT, YOU ACKNOWLEDGE AND AGREE THAT YOUR INFORMATION, INCLUDING PROTECTED HEALTH INFORMATION, MAY BE MADE AVAILABLE TO YOUR HEALTHCARE PROVIDER, PHARMACY, OR HEALTH PLAN, AND ANY CAREGIVER YOU DESIGNATED IN CONNECTION WITH YOUR ACCOUNT. YOU HEREBY CONSENT TO SUCH DISCLOSURE AND TRANSMISSION OF YOUR INFORMATION BY ŌMCARE.  

3. LICENSE GRANT. Subject to your compliance with these Terms, we hereby grant you a limited, non-exclusive, non-transferable, personal right to access and use the Services, during the Term, solely and strictly in accordance with these Terms for lawful, non-commercial purposes. You understand and agree that the Services are provided under license to you, not being sold to you, and you do not gain any Owner/Patient interest of any kind in the Services under these Terms. You are not in any way authorized by the license granted hereunder, or these Terms, to exploit the Services to compete with Ōmcare’s business.   

4. USER TYPES AND OBLIGATIONS. In addition to the users of our Services who are general website visitors and business-to-business contacts, the following are the types of users that are authorized to register to use the Services (collectively, and together with general website visitors, “Users”):  

  1. Owner/Patient: A “Owner/Patient” user type means individual users who have been given access to the Device by a Provider (defined below) for the purposes of on-time medication dispensation. As a Owner/Patient, the license granted to you hereunder is limited to use of the Device, Platform, and App for your own personal benefit. You may not permit others to benefit from or use the Services under your license.  In connection with using the Device, you acknowledge and agree you are solely responsible for purchasing medications for use in the Device and Ōmcare is not liable for any use, misuse, or claims relating to medications. The Device is intended to assist you in taking medications prescribed to you, and you agree that you will monitor all medications that you take and will confirm the correct dosage and type of medications before taking them, regardless of what the Device may provide to you. Further, you, not Ōmcare are responsible for selecting an authorized pharmacy that prepares your medications for use in the Device and for transferring to such pharmacy, where applicable, all of your prescriptions so that your medications may be prepared for use with the Device.  
  2. Provider: A “Provider” user type means a pharmacy, healthcare provider, or health plan that is receiving a license to access and use the Services at either an individual or corporate level. When you access and use the Services as a Provider user-type, you are agreeing to these Terms on behalf of yourself, individually, and the organization on whose behalf you are accessing and using the Services. The license granted to Providers hereunder is limited to use of the Services for the purposes of providing health or medical services or paying the cost of health or medical care. Providers may designate administrative users (“Admin Users”). Admin Users can create additional authorized user accounts for their personnel (“Authorized Users”) and assign certain permissions to such additional accounts. You are liable for all use of the Services by your Authorized Users and the conduct of your Authorized Users shall be considered your conduct for the purposes of the rights and obligations hereunder.  
  3. Caregiver: A “Caregiver” user type means an individual who has been given access to the Platform by a Owner/Patient. As a Caregiver, the license granted to you hereunder is limited to use of the Platform and App for your own personal benefit and only according to the scope or permission of the Owner/Patient. You acknowledge and agree the Owner/Patient may revoke your access to their information at any time. 

5. CREATING AN ACCOUNT.  In order to access the Services, you may be required to create an account with Ōmcare that may include choosing an account name, birthday and setting a password. When you do so, the information you provide Ōmcare must be accurate, complete and up-to-date. When registering with Ōmcare, you shall not impersonate anyone else, choose names that are offensive, or violate anyone’s rights. If you do not follow these rules, we may cancel your account. Depending on the level of permissions assigned to your user account, you may not have access to or be able to view or use all of the functions or features of the Services. 

6. ACCOUNT SECURITY. You acknowledge and agree that you are responsible for all the activity on your account, and for keeping your account credentials secure and confidential. If you have reason to believe that someone has accessed or used your account without your permission, you must immediately change your password and report the incident to Ōmcare using the “Contact Us” details below. You will be held liable for losses incurred by Ōmcare, or any other user of the Services, due to someone else using your Ōmcare password or account. You shall not use anyone else’s Ōmcare password or account at any time. Ōmcare cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.  

7. ACCESSING THE SERVICES. From time to time, we may restrict Users’ access to some parts of the Services or the entire Services. Ōmcare will use commercially reasonable efforts to make the Services available to you in a manner consistent with these Terms, but Ōmcare cannot guarantee the Services will available 100% of the time. For example, we may limit or restrict access to the Services for maintenance purposes, or the Services may be unavailable due to an event beyond our control (e.g., loss of utilities or communication services). You are responsible for: (i) making all arrangements necessary for you to have access to the Services, including your internet connection and internet stability; and (ii) ensuring that all persons who access the Services through your internet connection are aware of these Terms and comply with them. We may block, limit or terminate your access to the Services if: (i) you violate these Terms; (ii) you violate any applicable law, rule, or regulation relating to your use of the Services; (iii) you engage in any conduct which we, in our sole discretion, believe is offensive, defamatory, or otherwise harmful to us or others; or (iv) you breach any other agreement with us or any other person. 

8. ŌMCARE INTELLECTUAL PROPERTY. You acknowledge that, as between you and Ōmcare, Ōmcare owns all right, title, and interest, including all intellectual property rights, in and to the Services, including all software, hardware, firmware, and derivatives of the same, and, with respect to third-party data or information, the applicable third-party owns all right, title, and interest, including all intellectual property rights, in and to the third-party data, name, image, and likeness, and trademarks. Ōmcare’s names and logos and all related product and service names, design marks, and slogans, including ŌMCARE® and ŌMCARE HOME HEALTH HUB®, are the trademarks or service marks of Ōmcare. All rights are reserved. You are not authorized to use any Ōmcare name or mark in any advertisement, publicity or in any other commercial manner without prior written consent of Ōmcare. All other trademarks, trade dress, images, photographs, and other works appearing in connection with the Services are the property of their respective Owner/Patients. The entire contents and design of the Services are protected by U.S. and international copyright law. All rights regarding the Services and materials contained on or in the Services, including any and all technology, code, or design related to the Services, are either owned by Ōmcare, are licensed to it, or are used with permission. Ōmcare and its licensors, vendors, or other service providers retain and reserve all intellectual and proprietary rights to the Services.  The Services are only for your personal use. You are expected to obey all copyright restrictions. Copying or storing of any content without the prior written permission from Ōmcare or the intellectual property holder is prohibited. Please use the contact information below if you desire such permission or need more information. 

9. PROHIBITED USES AND CONDUCT.  

You may use the Services only for lawful purposes and in accordance with these Terms.  

You agree not to use the Services: (i) in any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the U.S. or other countries); (ii) for the purpose of exploiting, harming, or attempting to exploit or harm any person in any way by exposing them to inappropriate content, facilitating harassment, or otherwise; (iii) to send, knowingly receive, upload, download, use, or re-use any material that does not comply with the content standards contained in these Terms or published in connection with the Services; (iv) to impersonate or attempt to impersonate Ōmcare, an Ōmcare employee, another user, or any other person or entity; or (v) to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm Ōmcare or users of the Services, or expose them to liability. 

You agree not to, and will not permit any third party to: (i) use any robot, spider, or other automatic device, process, or means to access the Services for any purpose, including monitoring, scraping, or copying any of the material on the Services; (ii) use any manual process to monitor or copy any of the material on the Services, or for any other purpose not expressly authorized in these Terms, without our prior written consent; (iii) introduce to the Services or any Ōmcare system any viruses, Trojan horses, worms, malware, ransomware, logic bombs, or other material that is malicious or technologically harmful; or (iv) attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, any Ōmcare accounts, the servers on which the Services is hosted or stored, or any server, computer, or database connected to the Services. 

You are solely responsible for any liability associated with your use of the Services. You shall not, and are not authorized to, use the Services in any manner that violates any person’s rights or any applicable law.  

10. USER CONTENT.  

The Services allow Users to upload, post, or submit audio files, communications, and other information (“User Content”) in a manner that is available to Ōmcare and/or other Users.  

For the purposes of these Terms, “User Content” does not include: (i) any aggregated or de-identified data derived from your use of the Services and that does not identify you and is not capable of re-identifying you (“De-Identified Data”); or (ii) statistical technical data related to your access or use of the Services (“Technical Data”). As between you and Ōmcare, all De-Identified and Technical Data is solely and exclusively owned by Ōmcare. Ōmcare may use such data for any lawful purpose, including to manage and improve the performance of its Services, for statistical analysis, and for research, commercial, and development purposes.    

In submitting the User Content to the Services, you grant Ōmcare and our affiliates, licensors, and service providers, and each of their and our respective licensees, successors, and assigns, a non-exclusive, sublicensable, transferable, perpetual, worldwide, royalty-free license to use, display, access, view, store, and/or download User Content, and post or forward User Content to others, for the purpose of providing you the Services, exercising our rights or obligations under these Terms, or any other use described in our Privacy Policy.  

You also acknowledge and agree that Ōmcare does not control any User’s acts or omissions, or User Content submissions. We disclaim all warranties and liabilities for User Content. We are not responsible for any action taken by any third party with respect to your User Content.  

You represent and warrant that you own or control all rights in and to the User Content and have the right to grant the license above and that all of your User Content does and will comply with all applicable laws, rules, and regulations, and these Terms.  

You also represent and warrant that you have obtained all applicable consents and permissions needed to provide Ōmcare with any User Content or other information provided by you, and that you have a lawful basis for providing such information to Ōmcare, in connection with your use of the Services, including, without limitation, any personal information as defined under applicable law provided to Ōmcare. You agree to cooperate with Ōmcare and take such action as reasonably requested by Ōmcare with respect to any information provided by you to Ōmcare. 

You understand and acknowledge that you have full responsibility for your User Content, including its legality, reliability, accuracy, and appropriateness. Ōmcare is not responsible or liable to any third party for the content or accuracy of any User Content posted by you or any other User of the Services. Ōmcare disclaims all representations or warranties regarding the retention or backup of any User Content. You are solely responsible for the backup and any copies of any User Content.  

User Content must not:   

  1. Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable. 
  2. Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age. 
  3. Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person. 
  4. Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms.  
  5. Be likely to deceive any person. 
  6. Promote any illegal activity, or advocate, promote, or assist any unlawful act.  
  7. Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person. 
  8. Impersonate any person or misrepresent your identity or affiliation with any person or organization. 
  9. Give the impression that it emanates from or is endorsed by Ōmcare or any other person or entity, if this is not the case. 
  10. Criticize Ōmcare, the Services, or any Ōmcare operational partner.  

11. FEEDBACK. Ōmcare may solicit your feedback regarding your experience accessing or using the Services. The comments, information, and details you submit to us through surveys, reviews, or other forums regarding your experience accessing or using the Services, including without limitation any suggestions or recommendations regarding the Services’ features or functionality, including any improvements (“Feedback”) may be used by Ōmcare without any obligation, limitation, attribution, or compensation to any party. You hereby assign to Ōmcare all right, title, and interest, including intellectual property rights, in and to any ideas, inventions, know-how, concepts, techniques, or other concepts contained in the Feedback. For clarity, Feedback does not include User Content.  

12. TERM.  

  1. License Term. The Services may be offered on a monthly or an annual subscription basis or for the term otherwise specified in the Order (“Term”). Any subscription is billed in advance (unless otherwise specified in the Order) and is non-refundable. Your agreement for purchasing a license becomes binding upon your purchase of access to the Platform or App via our website, or the Apple Store or Google Play Store, or agreeing to the Order, as applicable.  
  2. Renewals. After each Term, the license will automatically renew for successive one-month or one-year periods, unless you cancel the Services before the current Term runs out. In the case of an Order, cancellation notice must be given at least thirty (30) days prior to the end of the current Term. Any licenses purchased for mobile applications via the Apple App Store or the Google Play Store have to be terminated via the Apple App Store or the Google Play Store for technical reasons. Termination must occur no later than 48 hours before the extension of the subscription. Instructions for canceling a subscription are available at https://support.apple.com/en-us/HT202039 (Apple) and https://support.google.com/googleplay/answer/7018481?hl=en&co=GENIE.Platform%3DAndroid (Google). The full amount for each renewal term will be charged to the payment method you have provided or is linked to your account on the first day of the renewal. You shall be responsible for any and all fees charged by Ōmcare for the license granted under these Terms and for any subsequent renewals. Upon terminating a subscription, your account, any Authorized User accounts, and the Services will become unusable.  Users are not entitled to any refund of fees. Ōmcare is under no further obligations to you or your Authorized Users upon your termination of the subscription. 

Ōmcare has the right to cancel subscriptions at any time for any reason. If Ōmcare cancels your subscription for a reason other than cause, you may request a refund from Ōmcare by contacting us at the information provided below.  

13. PAYMENT METHOD. In order to purchase a subscription to the Services, you may be asked to supply certain relevant information, including your credit or payment card number and expiration date or similar payment information, your billing address, and email. You represent and warrant that you have the right to use any credit or payment card or other payment mechanism that you submit in connection with the purchase of a subscription and that you have all authority necessary to purchase a subscription using the credit card or payment mechanism that you submit. By submitting such information, you grant Ōmcare the right to provide such information to third parties for the purposes of facilitating your purchase. You acknowledge and agree that Ōmcare is not responsible for how any third-party credit card or other payment method processor transmits, stores, uses or shares your information. 

14. DEVICE LIMITED WARRANTY AND RETURN POLICY.  

  1. Limited Warranty. Ōmcare provides a one-year limited warranty for any defects and malfunctions in the Device for the Warranty Period. The “Warranty Period” starts on the date your Device is registered and lasts for one year. The Warranty Period is not extended if we replace or repair the Device, and the availability of this limited warranty may change at our discretion. This limited warranty does not cover any damage due to: (a) transportation; (b) storage; (c) improper use; (d) failure to follow the product instructions or to perform any preventive maintenance; (e) modifications; (f) unauthorized repair; (g) normal wear and tear; (h) external causes such as accidents, abuse, or other actions or events beyond our reasonable control; or (i) use with a third-party component or product that does not meet the Device’s specifications. This limited warranty does not apply if (i) any serial number has been removed or defaced from the Device; or (ii) if Ōmcare receives information from relevant public authorities that the Device has been stolen or if you are unable to deactivate passcode-enabled or other security measures designed to prevent unauthorized access to the Device, and you cannot prove in any way that you are the authorized user of the Device (e.g., by presenting proof of purchase). This limited warranty also does not cover any data breach or damages resulting from the access or use of information transmitted or received using your username and password for use with the Device, with or without your knowledge or consent. In order to exercise your rights under this limited warranty, you must contact us within 30 days of becoming aware of a potentially covered issue at support@omcare.com. We may require you furnish proof of purchase, respond to our questions about the issue, and follow our procedures and instructions for warranty service.  
  2. Return Policy. Devices may be returned within 90 days of the date the Device was registered to the appropriate User for a full refund of purchase price of the Device, less any applicable shipping and handling costs. To qualify for a refund, you must request a return within 90 days of the date you registered the Device, return the Device in all original packaging and in good condition, and include evidence of purchase with your return. We may refuse to accept any return in our discretion if the return fails to meet the foregoing criteria. The refund will be issued to the payment method used to purchase the Device.  

15. FUNCTIONALITY AND UPDATES. Ōmcare reserves the right to change, suspend, or discontinue any aspect of the Services at any time, including availability of a feature, database, or content.  We may from time to time in our sole discretion develop and provide Services updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. 

16. THIRD-PARTY SITES AND LINKS. Ōmcare makes reasonable efforts to determine that other website owned or operated by third parties accessible via the Services (collectively, “Third-Party Websites”) are active and appropriate at the time the links to such Third-Party Websites are placed in the Services. Ōmcare has no control over, and assumes no liability for, the continued existence of, or the material available on, any Third-Party Website. Should you discover that any link in the Services references a Third-Party Website that is no longer active or that contains inappropriate or irrelevant information, please notify us by sending an e-mail message to the address listed below. Links from the Services to Third-Party Websites do not constitute or imply an endorsement, sponsorship, or recommendation by Ōmcare or any of its subsidiaries or affiliates of the third party, the Third-Party Website, or the resources, information, or content contained therein. Ōmcare does not endorse or warrant, and is not responsible or liable for, any such Third-Party Website or the content thereon. Please review the applicable third party’s terms and conditions and privacy policy when interacting with or using any Third-Party Website.  

17. USER DISPUTES. You are solely responsible for your interactions with other Users. We have no obligation to mediate or otherwise resolve disputes between Users and/or any third party. 

18. CONSENT TO DOING BUSINESS ELECTRONICALLY. You hereby agree that we may deliver all notices, disclosures, documents, reviews, analyses, or other materials, and any and all other documents, information, and communication concerning you or Ōmcare by means of email or by posting in the Services or by other means of electronic communication. Considering Ōmcare operates principally on the internet, by accessing the Services, you hereby consent to transact business electronically and to receive electronically all disclosures, documents, communications, notices, contracts, and agreements arising from or relating in any way to your or our rights, obligations, or services under these Terms or any other agreement between you and Ōmcare. 

19. INDEMNIFICATION. You agree to defend, indemnify and hold harmless Ōmcare and its affiliates, and each of their directors, officers, employees, and agents from and against all losses, expenses, damages, and costs, including reasonable attorneys’ fees, resulting from your breach or violation of any representations, warranties, covenants, obligations, or other provisions set forth in these Terms, your breach of applicable laws in connection with your use of the Services, your failure to fulfill any obligations relating to your use of the Services, or your account, incurred by you or any other person using your account, including, but not limited to, any failure on your part to provide or update full and complete information in connection with your registration with the Services. We reserve the right, but not the obligation, to take over the exclusive defense and control of any claim for which we are entitled to indemnification under these Terms. In such event, you hereby agree to cooperate and help us in asserting any defenses to such claims. 

20. WARRANTY DISCLAIMERS. Ōmcare disclaims any and all liability for the acts, omission, and conduct of any Users or third parties in connection with or related to your use of the Services. Users are completely responsible for their use of the Services. Users’ sole remedy against Ōmcare for dissatisfaction with the Services or any content is to stop using the Services or any such content at once. This limitation of relief is a part of the bargain between the parties. THE SERVICES MAY CONTAIN TECHNICAL ERRORS, TYPOGRAPHICAL MISTAKES, OR OTHER INACCURACIES. UNLESS OTHERWISE EXPRESSED, THE SERVICES ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTY AND ŌMCARE EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR ANY WARRANTY THAT THE SERVICES ARE ACCURATE, ADEQUATE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  

ŌMCARE DOES NOT PROVIDE MEDICAL, PROFESSIONAL, OR LICENSED ADVICE. ŌMCARE IS NOT A PHARMACY. WE ARE NOT LIABLE FOR, AND YOU ARE SOLELY RESPONSIBLE FOR, THE TAKING OR NOT TAKING OF ANY MEDICATIONS, PRESCRIBED OR OTHERWISE, IN CONNECTION WITH ŌMCARE’S SERVICES. REVIEW THE MEDICATIONS DISPENSED FROM THE DEVICE CLOSELY BEFORE INGESTING.  

21. LIMITATION OF LIABILITY. IN NO EVENT WILL ŌMCARE OR ITS AFFILIATES BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (v) COST OF REPLACEMENT GOODS OR SERVICES; OR (vi) DAMAGE OR INJURY TO PERSON OR PROPERTY, IN EACH CASE REGARDLESS OF WHETHER ŌMCARE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.  IN NO EVENT WILL ŌMCARE’S OR ITS AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF THE SERVICES UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE GREATER OF: (i) THE TOTAL FEES PAID BY YOU TO ŌMCARE IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM, OR (ii) ONE-HUNDRED DOLLARS ($100). 

22. CONFIDENTIAL INFORMATION. “Confidential Information” as used in these Terms means any and all non-public information disclosed by one party or its agents or representatives (“Disclosing Party”) to the other party or its agents or representatives (“Receiving Party”) whether intentionally or unintentionally, or otherwise viewed, heard, accessed, or obtained in any way, during the Term. “Confidential Information” will not include any information (a) in the public domain at or subsequent to the time it was communicated to the Receiving Party through no fault of the Receiving Party; or (b) rightfully in the Receiving Party’s possession free of any obligation of confidence at or subsequent to the time it was communicated to the Receiving Party. The Receiving Party will not disseminate, or in any way disclose, publish, reveal, report or transfer, directly or indirectly, Confidential Information to any person, organization, entity, or business except as expressly provided herein. In no event shall the Receiving Party use, or permit any third party to use, the Confidential Information for its own personal benefit, or to compete with or disadvantage the Disclosing Party in any way. The Receiving Party will use Confidential Information solely for performing its rights or obligations under these Terms. Each party will treat all Confidential Information of the other party with the same degree of care as it accords to its own Confidential Information, and each party represents that it exercises reasonable care at all times to protect its own Confidential Information. The Receiving Party shall be responsible for the conduct of its personnel, directors, officers, subsidiaries, affiliates, employees and representatives regarding the confidentiality and use of the Confidential Information. The Receiving Party shall only disclose the Confidential Information to personnel, investors, and representatives that are bound by confidentiality obligations that are at least as restrictive as the terms of these Terms.  The Receiving Party will immediately give notice to the Disclosing Party of the date of, and circumstances involved in, any loss of or unauthorized use or disclosure of any Confidential Information. The Receiving Party will assist the Disclosing Party in remedying any such unauthorized use or disclosure of the Confidential Information, including by securing the return of the Confidential Information from the party to whom the Confidential Information was disclosed. In the event that the Receiving Party is required by law, regulation or court order to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will promptly notify the Disclosing Party in writing prior to making any such disclosure in order to facilitate the Disclosing Party’s seeking a protective order or other appropriate remedy from the proper authority. Due to the unique confidential, proprietary, unique and valuable nature of the Confidential Information, the Receiving Party acknowledges and agrees that in the event the Receiving Party fails to comply with its obligations hereunder, that monetary damages may be inadequate to compensate the Disclosing Party. Accordingly, the Receiving Party agrees that the Disclosing Party shall, in addition to any other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of these Terms. 

23. GOVERNING LAW. These Terms shall be construed and governed in accordance with the laws of the State of Minnesota, without giving effect to any choice or any conflicts of law provisions or rules. Any action relating to these Terms shall be brought in the federal or state courts located in the City of Minneapolis, State of Minnesota. You hereby agree to personal jurisdiction and submit to venue by such courts, and waive any jurisdictional, venue, or inconvenient forum objections to such courts.  

24. CLASS ACTION WAIVER; WAIVER OF JURY TRIAL. 

THE PARTIES AGREE THAT ANY CLAIMS WILL BE ADJUDICATED ON AN INDIVIDUAL BASIS, AND EACH WAIVES THE RIGHT TO PARTICIPATE IN A CLASS, COLLECTIVE, PAGA, OR OTHER JOINT ACTION WITH RESPECT TO THE CLAIMS. 

EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THESE TERMS OR THE TRANSACTIONS CONTEMPLATED HEREBY. 

25. TERMINATION OF USE. You agree that we may, at our sole discretion, limit, suspend, or terminate your access to all or part of the Services without notice if we suspect illegal, fraudulent, or abusive activity. Such activity (including your personal information) may be referred to appropriate law enforcement authorities. Upon suspension or termination of these Terms, your right to access or use the Services will immediately cease, and we reserve the right to remove or delete any information that you may have on file with us, including any account or login information, in accordance with these Terms.  

26. GEOGRAPHIC LOCATION. Ōmcare is based in the United States and our offering of the Services is not intended to subject us to any laws in any jurisdiction outside of the United States. Be aware that access of the Services may result in the transfer of your information to servers located in the United States. If you access the Services from outside of the United States, you consent to all such transfers. You also do so on your own initiative and are responsible for compliance with local laws. We make no claims that the Services or any of its content complies with any laws outside of the United States. 

27. MISCELLANEOUS.  

These Terms, any Order, and the Privacy Policy constitute the sole and entire agreement between you and Ōmcare regarding the Services and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding the Services.  

It is expressly agreed that Ōmcare and all Users shall be independent contractors of each other and that the relationship between the parties shall not constitute a partnership, joint venture or agency. Neither Ōmcare nor any User shall have the authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on the other party, without the prior consent of such other party. 

In addition to these Terms, you may enter into other agreements with us that will govern your use of the Services. If there is any contradiction or conflict between these Terms and another agreement you enter into with us applicable to the Services, the other agreement shall take precedence in relation to the specific aspects of the Services governed by such agreement. 

If any part, term, or provision of these Terms is held to be illegal, in conflict with any law, or otherwise invalid, the remaining portion or portions shall be considered severable and not be affected, and the rights and obligations of the parties shall be construed and enforced as if these Terms did not contain the particular part, term, or provision held to be illegal or invalid. 

The provisions of these Terms shall survive any expiration or termination of these Terms or completion of any services hereunder to the extent necessary or appropriate to carry out the intent of such provisions.  

We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law. You may not assign rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law, without our prior written consent. 

The failure by us to enforce any right or provision of these Terms will not prevent us from enforcing such right or provision in the future. 

28. CONTACT US.  

If you have questions regarding these Terms or the Services, please contact us by e-mail at support@omcare.com or by using the contact information provided below: 

Ōmcare Inc. 

c/o Support Administrator 

2626 E 82nd Street, Ste 265 

Bloomington, MN 55425 

Phone: 952-456-6848