Last Updated: May 26, 2020
Acceptance of Terms of Service
These Terms of Service (the “Terms”) are entered into by and between you and EnterMedicare, Inc. (“Company”, “we”, “our”, or“us”). The Terms govern your access to and use ofwww.EnterMedicare.com (the“Site”) and our cloud-accessed, desktop, or mobile application or installation(the “Application”) together with any content, functionality, and services offered on the Site or Application (collectively, the “Services”), whether as a guest or a registered user. Additionally, your use of this Site and the Services, as defined herein, are subject to all applicable disclaimers, which may be found athttps://www.entermedicare.com/disclaimers.html
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES AND ALSO LIMITS THE REMEDIES AVAILABLE TOYOU IN THE EVENT OF A DISPUTE.
These Services are offered and available to users who are 18 years of age or older and reside in the United States or any of its territories or possessions. By using these Services, you represent and warrant that you are at least 18 years of age, can form a binding contract with the Company, are not barred from using the Services under any applicable law. Any individual or person accessing or using EnterMedicare’s Services on behalf of another person or entity is representing and warranting that you have authority to bind that person or entity to these Terms. If you do not meet all these requirements, you must not access or use the Services.
You hereby acknowledge and agree that EnterMedicare is not an insurance company, insurance agent, insurance broker, or the sponsor of any plan for any Medicare product (including any Medicare Advantage or MedicarePart D plan), and any content, literature, advice, suggestions, recommendations, comparison display, or information relating to insurance offered by third parties is not a substitute for insurance.
YOU ASSUME ALL RISK AND LIABILITY ASSOCIATED WITH CHOOSING OR PURCHASING OR SWITCHING YOUR INSURANCE POLICIES OR PLANS BASED ON ANY INFORMATION RECEIVED OR LEARNED FROM ENTERMEDICARE’S SERVICES. SIMILARLY, ENTERMEDICARE IS NOT RESPONSIBLE FOR CHANGES YOU MAKE TO ANY USER DATA OR CONTENT, AS SUCH TERMS ARE DEFINED HEREIN, AND YOU MAKE ALL SUCH CHANGES TOTHAT INFORMATION AT YOUR OWN SOLE AND EXCLUSIVE RISK. ENTERMEDICARE RETAINS NO LIABILITY WITH REGARD TO ANY SUCH DECISION.
Changes to Terms or Services
You acknowledge that EnterMedicare may modify any of the Terms at any time, in our sole discretion. Modifications to the Terms will be posted through this policy or through other communications at our sole discretion. Your continued use of the Services following the posting of revisedTerms of Service means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
If you do not agree with any changes made to the Terms, you may not use the Services.
Accessing the Services
You are responsible for:
• Making all arrangements necessary for you to have access to the Services.
• Ensuring that all persons who access the Services through your internet connection are aware of these Terms of Service and comply with them.
• Ensuring that you maintain the confidentiality of your account information, including your username and password. You agree to immediately notify EnterMedicare of any unauthorized use of your account, or any other breach of security. We are not liable for any loss or damage arising from your failure to protect your username or password.
Additional responsibilities for Professional Users:
Users may access EnterMedicare and use its Services for professional purposes to communicate with enrollees, beneficiaries, or potential enrollees and beneficiaries, such (but not limited to) as insurance agents and brokers (each a “Professional User,” and collectively the“Professional Users”). If you are aProfessional User, you agree to the following further and additional terms and conditions in connection with accessing and using the Services and consent to be bound by the covenants and terms set forth below:
• Professional Users that provide any marketing or communications that are subject to any federal regulation, including but not limited to the Medicare Communications and Marketing Guidelines (the “Guidelines”), you agree to comply with all such regulations and further guidance, including but not limited to submitting such marketing materials for approval to the U.S. Centers for Medicare and MedicaidServices (“CMS”) all marketing or communications facilitated through theServices.
• In using the Services, Professional Users may upload or provide templates of written communications, marketing materials and other forms or written matter that it has created or licensed (collectively, the “Content”) that theProfessional User intends to use in its communications and marketing, as those terms are defined within the Guidelines. You represent and warrant that, as a Professional User, that you have submitted to CMS and obtained approval from CMS as applicable within theGuidelines for all such Content that you may use, upload, submit, edit, modify, distribute, or otherwise use the Services to distribute to or exchange with any third parties.
• When using the Services, Professional Users may modify, edit, amend, add to, delete, or otherwise make changes (collectively, the “Changes”) to the Content or other information that EnterMedicare has made available in connection with or use within the Service; in making any Changes, you assume liability for any and allChanges and any obligations to submit or obtain approval from CMS for any and all Changes that you make. EnterMedicare shall have no responsibility for your Changes and your obligations to submit toCMS or obtain any approval from CMS for such Changes. As further described herein, EnterMedicare disclaims any and all liability for both the Content and any Changes you make to any information found within or made available within the Services(including any Content), and you agree that EnterMedicare is not liable for anyChanges that you may make or cause to be made, whether to the Content or otherwise.
• You understand that, as further explained within the disclaimer of warranties below and other notices within these Terms, EnterMedicare is not responsible for the contents of any formulary or information concerning physician network or physician participation with any Medicare Advantage or Medicare Part D plan, and that you are responsible for confirming the accuracy, thoroughness, and completeness of such information, and that it is free from errors or inaccuracy, when preparing any proposal, quote, or other information regarding any Medicare Advantage plan, organization, or association; or Medicare Part D plan or sponsor.
• Professional Users are required to comply with the Health Insurance Portability andAccountability Act of 1996 and its implementing regulations, 45 CFR Parts 160 and 164 (collectively, “HIPAA”), as well as the Business Associate Agreement entered into between you and EnterMedicare related to the securing of Protected Health Information (“PHI”) as that term is defined under HIPAA, and further represent that such Professional User is in compliance with all relevant provisions rules, and regulations promulgated under and relating to HIPAA, including the Security Rule, Privacy Rule, and Breach Notification Rule found within Title 45 of the Code of Federal Regulations, Part 164 and Subparts C, D, and E.
Accounts and User Data
Certain Services involve the formation of an account (“Account”) whereby you provide EnterMedicare with certain information related to your use of Services including but not limited to name, e-mail address, date of birth and zip code; for Professional Users, this shall include Content and Changes as well. You agree that you are responsible for all activities made under your Account and agree to ensure that information provided via the Account is accurate and up to date.
User Data (“User Data”) refers to any content or information that you submit to EnterMedicare through the Services, including information submitted as part of forming your Account, and information you submit in the course of using your Account to access and use the Services, including anyContent or Changes. The term “User Data” does not include information that is considered For any information that constitutes PHI, EnterMedicare’s obligations related to such PHI will be governed by a Business Associate Agreement entered between EnterMedicare and the Professional User or between EnterMedicare and a health insurer.
EnterMedicare does not claim ownership rights in any User Data and nothing in these Terms will be deemed to restrict any rights you may have to use and exploit your User Data.
By making User Data available to EnterMedicare, you grant us a non-exclusive, transferable, worldwide, royalty-free license to use your User Data in connection with providing Services to you and other Account holders.
You are solely responsible for all of your User Data. You hereby represent that you have the right to grant us rights to your User Data under these Terms. At any time and at your sole discretion, you can opt out of any contact methods associated with User Data or Accounts and/or remove your User Data by e-mailing us at hello@EnterMedicare.com.
The Services and their entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by EnterMedicare, its licensors, or other providers of such material, and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
No right, title, or interest in or to the Services or any content on the Services is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Services not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws.
These Terms permit you to use the Services for your personal use only, although Professional Users may use the Services for their professional purposes, as long as such use complies with HIPAA and the intention of the parties.
You further specifically represent and warrant that you have all necessary right, title, and license to use any and all logos, servicemarks, trademarks, and other Content or Changes that you upload to EnterMedicare during the course of your use of the Services; that you grant EnterMedicare an irrevocable, global, royalty-free non-exclusive license to use such logos, servicemarks, trademarks, and other Content or Changes in EnterMedicare’s provision of the Services; and that you represent and warrant that you have all necessary right, title, interest, and legal authority to issue such a license as described herein to such logos, servicemarks, trademarks, and other Content or Changes to EnterMedicare for EnterMedicare’s use in providing Services to you.
Improper Use of Services
You hereby agree and acknowledge that you are forbidden from any (a) interference with or disruption of the access of any EnterMedicare host or network via sending a virus or overloading, flooding, spamming or any process that is burdensome on our Services, (b) accessing or searching through our Services other than through methods and processes currently available and published by us, (c) accessing or tampering with any non-public areas within our systems or technical providers, (d) using our Services or Site or company intellectual property to in any way send altered or deceptive communications to any third-party, including the submission of any falsified or false information through the Services, and (e) using the Services to display, distribute, or make available any Content or Changes that have not been submitted to or approved by CMS as may be required by the Guidelines and/or applicable regulations.
You hereby agree and acknowledge that you are forbidden from crawling or using any type of automated scripts to engage with our Services in any way whatsoever, other than in accordance with any express provisions of our robots.txt file.
Without our express written consent, you will not utilize, display, mirror or copy any of our intellectual property or Services for any reason.
Links From the Services
If the Services contain links to other websites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those websites or resources and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to these Services, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
The owner of the Services is based in the state of California in the United States. We provide these Services for use only by persons located in the United States. We make no claims that the Services or any of their content is accessible or appropriate outside of the United States. Access to the Services may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
Warranty and Disclaimers
YOUR USE OF THE SERVICES, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES OR THROUGH A THIRD PARTY OR AN AFFILIATE OF ENTERMEDICARE IS AT YOUR OWN RISK. ENTERMEDICARE EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES PERTAINING TO OR ARISING FROM THE CURRENCY, RELIABILITY, ACCURACY,COMPLETENESS, AND APPLICABILITY OF ANY FORMULARY, PHYSICIAN PARTICIPATION INFORMATION, NETWORK INFORMATION, OR OTHER COVERAGE INFORMATION PROVIDED BY OR OBTAINED FROM A THIRD PARTY WITH RESPECT TO COVERAGE AVAILABLE WITH ANY MEDICARE ADVANTAGE OR MEDICARE PART D PLAN, AND ENTERMEDICARE FURTHER EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY THAT THE FOREGOING INFORMATION ISMADE AVAILABLE FREE FROM ERRORS THROUGH THE SERVICES. THE SERVICES, THEIR CONTENT (WHETHER OR NOT CREATED BY ENTERMEDICARE OR OBTAINED FROM ANY THIRD PARTY), AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES ARE PROVIDED ONAN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS,SECURITY, RELIABILITY, QUALITY, ACCURACY, SUITABILITY FOR ANY PURPOSE, OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE SERVICES, THEIR CONTENT, OR ANY THIRD PARTY OR RELATED SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, SUITABLE FOR ANY USE OR PURPOSE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR APPLICATION OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitation of Liability
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES,AGENTS, OFFICERS, DIRECTORS, OR OTHER PARTIES INVOLVED WITH THE COMPANY’S DELIVERY OF SERVICES, BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY,CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES, ANY WEBSITES LINKED TO THEM, ANY CONTENT ON THE SERVICES OR SUCH OTHER WEBSITES, WHETHER BASED IN NEGLIGENCE OR OTHERWISE.
IN NO EVENT WHATSOEVER WILL ENTERMEDICARE OR ITS AFFILIATES’TOTAL LIABILITY ARISING IN CONNECTION WITH THESE TERMS OF FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNT YOU HAVE PAID TO ENTERMEDICARE TO USE THE SERVICES OVER A SIX (6) MONTH PERIOD, OR TWENTY THOUSAND DOLLARS($20,000), WHICHEVER IS LESS.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
When you agree to these Terms, you are releasing any right to resolve disputes through a Court and are agreeing (with limited exceptions, as provided below) to resolve any disputes whatsoever between you and EnterMedicare through binding, individual arbitration.
Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted.
This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
· claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
· claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);
· claims that are currently the subject of purported class action litigation in which you are nota member of a certified class; and
· claims that may arise after the termination of this Agreement.
YOU HAVE THE RIGHT TO OPT OUT OF MANDATORY ARBITRATION AND LITIGATE ANY DISPUTE IF YOU PROVIDE WRITTEN NOTICE OF YOUR DESIRE TO DO SO WITHIN THIRTY (30) DAYS FOLLOWING THE DATE YOU FIRST AGREE TO THESE TERMS, BY SENDING AN E-MAIL TO HELLO@ENTERMEDICARE.COM OR BY REGULAR MAIL AT ENTERMEDICARE, INC., ATTENTION: LEGAL (ARBITRATION OPT-OUT), 3415 S. SEPULVEDA BOULEVARD, 10TH FLOOR, LOS ANGELES, CA 90034. IF YOU FAIL TO SEND THIS OPT-OUT NOTICE WITHIN THIRTY (30) DAYS FROM FIRST ACCEPTING THESE TERMS, ANY DISPUTE OR CLAIM BROUGHT BY YOU AGAINST ENTERMEDICARE MUST BE DONE THROUGH INDIVIDUAL ARBITRATION.
Dispute Resolution Process
To begin the arbitration process, notice must be given via a certified letter (“Notice”), sent to: EnterMedicare, Inc., Attention: Legal (Request for Arbitration), 3415 S. Sepulveda Boulevard, 10th Floor, LosAngeles, CA 90034. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If EnterMedicare and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or EnterMedicare may commence an arbitration proceeding. Unless EnterMedicare and you agree otherwise, any arbitration hearings will take place within 25 miles of EnterMedicare’s headquarters in Los Angeles, California. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules.
You and EnterMedicare hereby agree that the arbitration will be conducted by the American Arbitration Association (“AAA”) under its ConsumerArbitration Rules (“AAA Rules”) or a comparable arbitration association such asJudicial Arbitration and Mediation Services (“JAMS”) under that association’s comparable rules governing commercial arbitration. These rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by applicable arbitration association rules.
This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision. This arbitration provision shall survive termination of this Agreement.
LIMITATION OF ACTION: TO THE EXTENT ALLOWED BY LAW, ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY WAIVED AND RELEASED BY YOU, AND BARRED FROM BEING BROUGHT IN ANY FORUM.
EnterMedicare retains the right to seek injunctive or any other equitable relief from a court to protect our intellectual property rights, and such actions are not subject to arbitration. For any claims or actions not subject to arbitration, the interpretation and enforceability of these Terms and the related dispute shall be governed by the laws of the state of California without regard to its conflicts of laws provisions, and the sole and exclusive forum will be the courts located in Los Angeles County, California. Both parties agree to submit to such forum and venue, and further agree waive any defenses related to personal jurisdiction and forum non conveniens.
You may not assign or transfer these Terms without EnterMedicare’s prior written consent. EnterMedicare may freely assign or transfer these Terms without restriction or your prior approval.
For any notices relating to these Terms, including for modification, you agree that sufficient notice to be provided by EnterMedicare includes updates via e-mail or by posting to this page or other areas of display within the Services. You agree that the date of receipt of such notices will be deemed the date on which such notice is transmitted.
EnterMedicare has the right to enforce any right or provision within these Terms, and any failure to enforce any right or provision within these Terms will not be considered a waiver.
For Professional Users, you acknowledge that the relationship of EnterMedicare to you is that of an independent contractor; in no event is the establishment of a legal partnership, agency or joint venture to be implied. Additionally for Professional Users, you acknowledge that you do not have any authority, whether express or implied, to assume or create any obligation on behalf of EnterMedicare, or to make EnterMedicare responsible for the Content or any Changes that are part of your User Data.
These Terms constitute a full and exclusive agreement between EnterMedicare and you regarding any possible use of our Services, whether on our Site or in any other form. Unless explicitly stated, these Terms govern the use of Services and supersede any prior oral or written understandings or agreement.
3415 S. Sepulveda Blvd, 10th Floor
Los Angeles, CA 90034