Terms of Service
CancerMonthly.com
Introduction
Welcome to CancerMonthly.com (hereinafter, “Cancer Monthly” or the “Website” or the “Site”). Cancer Monthly is operated by Cancer Monthly, Inc., a corporation with its principal place of business at 6800 Gulfport Blvd. S., Suite 201-219, South Pasadena, FL 33707. Cancer Monthly provides you with access to the Site subject to the terms and conditions contained in this User Agreement (the “Agreement”). Please read this Agreement carefully. You may wish to print this page for reference.
The Site is administered by Cancer Monthly from Pinellas County, Florida in the United States. This Site and its contents (the “Content”) are designed to comply with United States laws and regulations. Access to the Site and the Content may not be legal by certain persons or in certain countries outside of the United States. If you access this Site from outside the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction.
1. Modification of this Agreement
Cancer Monthly reserves the right at its sole discretion to update or modify this Agreement at any time without prior notice. All provisions of this Agreement pertaining to indemnification, disclaimer of warranties, limitation of liability, dispute resolution, arbitration, jury trial waiver, class action waiver, and proprietary rights shall survive the termination of this Agreement for any reason.
2. Your Rights
Unless otherwise specified, we grant you a non-exclusive, non-transferable, limited right to access, use and display this Website and the material provided hereon, for your personal, noncommercial use, provided that you comply fully with the provisions of this Agreement.
3. Privacy and Security
We are committed to protecting your privacy and security. For more information, you should review our Privacy Policy, which is incorporated into this Agreement by reference and is available on the Website. The terms and conditions of Cancer Monthly’s Privacy Policy may be changed by Cancer Monthly at its discretion.
Information collected through forms requesting Free Materials or other intake forms on the Site, including your name, email address, mailing address, and telephone number, is governed by the Privacy Policy and is used for the communications and purposes described in Section 5 (Free Materials Offer) and Section 6 (Communications and Consent) below.
4. Content of the Site Is for Informational Purposes Only and Is Not Medical Advice
THE CONTENT OF THIS SITE IS PRESENTED IN SUMMARY FORM, IS GENERAL IN NATURE, AND IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE CONTENT OF THIS SITE IS NOT INTENDED, NOR RECOMMENDED AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, TREATMENT ADVICE OR TREATMENT RECOMMENDATIONS. ALL INFORMATION PRESENTED IN CANCER MONTHLY IS STRICTLY INFORMATIONAL IN NATURE, AND IS NOT TO BE CONSTRUED AS A FORM OF COUNSELING, DIAGNOSIS, OR TREATMENT. YOU SHOULD NOT USE ANY OF THE CONTENT ON THIS SITE FOR DIAGNOSING A HEALTH OR FITNESS PROBLEM, CANCER OR ANY OTHER DISEASE. YOU SHOULD NOT USE ANY OF THE CONTENT ON THIS SITE TO TREAT A HEALTH OR FITNESS PROBLEM, CANCER OR ANY OTHER DISEASE. UNDER NO CIRCUMSTANCES SHOULD ANY OF THE CONTENT ON THIS SITE BE USED TO SELECT A CANCER TREATMENT, THERAPY, PROTOCOL, MODALITY OR DRUG WITHOUT CONSULTING WITH A LICENSED HEALTHCARE PROVIDER. CANCER DIAGNOSIS AND TREATMENT SELECTION SHOULD ONLY BE MADE WITH A MEDICAL PROFESSIONAL. THE INFORMATION AND CONTENT ON THIS SITE IS NOT TO BE USED TO REPLACE THE GUIDANCE OF A MEDICAL PROFESSIONAL. IF THE INFORMATION ON THIS SITE LEADS YOU TO A TREATMENT OF INTEREST, THAT INFORMATION SHOULD BE SHARED WITH YOUR PHYSICIAN OR OTHER LICENSED HEALTHCARE PROVIDER.
NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OF SOMETHING YOU HAVE READ ON THIS SITE. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER REGARDING ANY MEDICAL CONDITION OR TREATMENT.
5. Free Materials Offer
Cancer Monthly, in cooperation with Surviving Mesothelioma and the law firm of Maune Raichle Hartley French & Mudd, LLC (“MRHFM”), offers free copies of the book “Surviving Mesothelioma” and other free informational publications and resources (collectively, the “Free Materials”) to qualifying individuals. The specific titles and resources offered may change from time to time at Cancer Monthly’s discretion. Your participation in this offer is governed by the following terms:
- Free Materials are available only to U.S. mesothelioma patients and their family members.
- Mailing and Fulfillment. The Free Materials are mailed by MRHFM on behalf of Surviving Mesothelioma. By requesting any Free Materials, you understand that MRHFM is a law firm and that your contact information will be shared with MRHFM for purposes of fulfilling your request.
- Compensation Disclosure. Cancer Monthly may receive compensation from MRHFM if you retain MRHFM as your legal counsel. This relationship is disclosed in compliance with applicable advertising and consumer-protection rules.
- No Joint Venture. The relationship between Cancer Monthly, Surviving Mesothelioma, and MRHFM is solely a referral and informational arrangement. Nothing in this Agreement creates a partnership, joint venture, agency, employment, or fiduciary relationship among them. Each entity is solely responsible for its own conduct, and Cancer Monthly is not liable for the acts, omissions, or services of MRHFM or Surviving Mesothelioma.
- No Legal or Medical Advice. Neither Cancer Monthly nor Surviving Mesothelioma provides legal or medical advice. Receipt of any Free Materials does not create an attorney-client relationship with MRHFM, Cancer Monthly, or Surviving Mesothelioma. An attorney-client relationship with MRHFM is created only by a separate, written engagement agreement signed by you and MRHFM. No representations are made regarding the merits, value, or likely outcome of any potential legal claim.
- Alternative Request Method. You may also request Free Materials by calling 1-888-378-1331. Requesting Free Materials by telephone does not require you to consent to receive any further calls or text messages.
- Offer Subject to Change. The free offer is provided as a courtesy and may be modified, limited, or discontinued at any time without notice. Cancer Monthly is not responsible for shipping delays, lost mail, or fulfillment errors caused by incorrect or incomplete information you provide.
6. Communications and Consent (TCPA Disclosures)
When you submit a form on the Site requesting Free Materials or other resources, where the form includes your telephone number, you provide prior express written consent to be contacted as described in this Section. The following terms govern those communications:
- Who May Contact You.
You consent to be contacted by Cancer Monthly, Inc., Surviving Mesothelioma, and Maune Raichle Hartley French & Mudd, LLC (collectively, the “Authorized Senders”). No other entity is authorized to contact you on the basis of consent provided through this Site unless you separately consent to such contact in writing.
- How They May Contact You.
The Authorized Senders may contact you by telephone (including via automatic telephone dialing systems and prerecorded or artificial voice messages), by SMS or text message (including messages sent using automated technology), and by email, in each case using the contact information you provide.
- Purpose of Contact.
Communications from the Authorized Senders will relate to: (i) confirmation of your request for Free Materials and shipping address; (ii) mesothelioma information, support resources, and patient advocacy; and (iii) discussion of your potential legal rights, including evaluation of a possible legal claim by MRHFM if you choose to pursue one.
- Frequency.
You may receive up to twelve (12) calls or text messages per month from the Authorized Senders, in the aggregate.
- Do Not Call Registries.
Your consent applies even if your telephone number is registered on any State or National Do Not Call Registry. By providing your number and submitting the form, you waive any inconsistent prior listing on such registries solely as it pertains to communications from the Authorized Senders.
- Message and Data Rates.
Standard message and data rates from your wireless carrier may apply to any text messages or calls. Cancer Monthly is not responsible for charges imposed by your carrier.
- Consent Is Not Required.
Your consent to receive calls or text messages is not a condition of receiving any Free Materials or any other product, service, or information offered through the Site. You may also request Free Materials by calling 1-888-378-1331 without providing any such consent.
- How to Opt Out.
You may revoke your consent and opt out of further communications at any time, by any reasonable method, including:
- Replying STOP to any text message you receive;
- Calling 1-888-378-1331 and requesting that you be removed from contact lists;
- Emailing [email protected] with your request; or
- Submitting a written request to Cancer Monthly, Inc., 6800 Gulfport Blvd. S., Suite 201-219, South Pasadena, FL 33707.
Opt-out requests will be honored across all communication channels operated by the Authorized Senders within the timeframes required by applicable law.
- Record of Consent.
Cancer Monthly maintains records of consent provided through the Site, which may include the date and time of submission, the IP address from which the form was submitted, the contents of the form and disclosures shown to you at the time of consent, and related metadata. These records are retained for the period required by applicable law and may be used to demonstrate consent in the event of any dispute.
- Your Representations and Warranties.
By submitting any form on the Site that includes a telephone number, you represent and warrant that:
- You are at least eighteen (18) years of age and have the legal capacity to enter into this Agreement;
- You are the subscriber of the telephone number you provide, or you are the customary user of that number and are authorized to provide consent to receive communications at that number on behalf of the subscriber;
- All information you provide, including your telephone number, is true, accurate, current, and complete;
- You will promptly notify Cancer Monthly if your telephone number changes or if you no longer have authority to receive communications at that number; and
- You are not providing any other person’s telephone number without that person’s express authorization.
You agree that any breach of these representations is a material breach of this Agreement and gives rise to indemnification obligations under Section 13.
- Electronic Signature; Prior Express Written Consent.
You agree that your submission of any form on the Site, including the act of clicking a “Submit” button or checking a consent box, constitutes your electronic signature under the federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7001 et seq.), the Florida Electronic Signature Act, and the Uniform Electronic Transactions Act. You further agree that such submission, together with the disclosures presented to you at the time of submission and the terms of this Section 6, satisfies all requirements for “prior express written consent” under the Telephone Consumer Protection Act and its implementing regulations, including 47 C.F.R. § 64.1200(f)(9), and for any analogous consent requirement under state law, including the Florida Telephone Solicitation Act.
- Good-Faith Reliance; Pre-Revocation Communications.
Cancer Monthly and the other Authorized Senders may rely in good faith on your consent until that consent is properly revoked in accordance with Section 6.H. You agree that the Authorized Senders shall not be liable for any communications sent before your opt-out request is processed, provided such communications are made within the timeframes required by applicable law for honoring opt-out requests. You further agree that the Authorized Senders may send a single confirmation message in response to an opt-out request to confirm receipt and effective date of revocation.
- Incorporation by Reference.
Any abbreviated consent disclosure presented to you on a form, page, or interface of the Site (including but not limited to disclosure language adjacent to a “Submit” button or SMS opt-in checkbox) is supplemented by, and incorporates by reference, the full terms of this Section 6. By submitting any such form, you acknowledge that you have had a reasonable opportunity to review the full terms of this Section 6 and agree to be bound by them.
7. Information Presented Is Not Complete or Comprehensive
You acknowledge and agree that the Content of this Site is not complete or comprehensive. The information on this Site constitutes summaries of information provided in some articles written in some journals about the results of some cancer treatments. Therefore, the information on this Site should not be relied upon as comprehensive, nor as a presentation of information on all available cancer treatments. Summaries of many cancer treatments are excluded from this Site.
For those treatments where summary information is provided, such information is not comprehensive or complete. Important aspects or information about a particular treatment may be excluded. For more complete information about a particular treatment you should ask your licensed healthcare provider.
The Site provides some information about various drugs. The information provided about a drug is for informational purposes only and is not a substitute for consultation with your health care professional. The information about a specific drug is in no way a recommendation as to the safety, efficacy or appropriateness of any particular drug, regimen, dosing schedule, nor is it in anyway to be considered medical advice. As with any printed reference, the information about a particular drug may become out-of-date over time. New information may have been published and become generally accepted after the information that appears on this Site. Patients should discuss the appropriateness of a particular drug with their physician. The brand name that Cancer Monthly associates with a particular drug is based on FDA information, however, there may be other brand names associated with that drug that the Site does not mention.
The Site provides information on Alternative Resources. This information is for general information purposes only and is not a substitute for consultation with your health care professional. Alternative Resources are not FDA approved and therefore if you have an interest in any such modalities you are urged to speak with your licensed healthcare practitioner. Nothing on this website should be construed as Cancer Monthly suggesting that any person should seek, buy, use or otherwise become involved with any modality that is not FDA approved for the treatment of cancer.
8. Information May Not Be Accurate
Cancer Monthly does not guarantee or warrant the accuracy, completeness or comprehensiveness, of any of the materials used, summarized, presented or discussed in the Site. By accessing the Content of this Site you acknowledge and agree that Cancer Monthly summarizes information presented in some scientific and medical journals and that Cancer Monthly is not responsible for any inaccuracies, omissions or errors in these articles. You also acknowledge and agree that no treatment decision should be based on any article or articles printed in one or more medical or scientific journal. Only a physician can prescribe a treatment and no article cited, sourced, or otherwise used by Cancer Monthly should ever be used to make treatment decisions without consulting with your doctor and other medical professionals.
Moreover, while Cancer Monthly makes every effort to ensure that its treatment summaries accurately reflect what has been written in professional medical and scientific journals, there will be occasions where the information summarized by Cancer Monthly is inaccurate or wrong. This is another reason why the Content of the Site should never be used to make a treatment decision and that treatment decisions should only be made in consultation with medical professionals.
You acknowledge that any reliance upon any advice, opinion, statement, or other information displayed or distributed through the Site is at your sole risk. Cancer Monthly reserves the right, in its sole discretion and without notice, to correct any errors or omissions in any portion of the Site, or to deny access to the Site to anyone at any time.
9. Does Not Provide Health Care and Does Not Collect Health Information
Cancer Monthly does not furnish, bill or receive payment for health care. Cancer Monthly does not engage in providing care, services, or supplies related to the health of an individual. Cancer Monthly does not engage in preventive, diagnostic, rehabilitative, maintenance, or palliative care, and counseling, service, assessment, or procedure with respect to the physical or mental condition, or functional status, of an individual or that affects the structure or function of the body. Cancer Monthly does not engage in the sale or dispensing of a drug, device, equipment, or other item in accordance with a prescription. Cancer Monthly does not collect any health care information. Cancer Monthly does not facilitate the processing of health information from nonstandard format or content into standard format or content or from standard format or content into nonstandard format or content.
10. Ownership of Content
No use should be made of materials on this Site, except as expressly authorized by this Agreement. The Content of this Site and the selection, arrangement and design of the Content is owned by Cancer Monthly and is protected by copyright and other intellectual property laws including the sui generis rights relating to the protection of databases. You may not reproduce, create derivative works from, transmit, sell, distribute, modify, copy, reproduce, republish, upload, post, transmit or distribute in any way any Content, in whole or in part, including any code and software. You may not exploit the Site or any portion thereof for any public or commercial use without the prior written permission of Cancer Monthly.
11. Copyright and Trademarks
All Content on the Site, including without limitation text, images, software, audio and video clips, and databases are owned or controlled by Cancer Monthly, which retains all right, title, and interest in and to the Content. The Site and Content are protected by the copyright and trademark laws of the United States and other countries, international conventions, and other applicable laws.
You agree not to use any trademarks, service marks, names, logos, or other identifiers of Cancer Monthly or its employees, licensors, independent contractors, or providers without the prior written permission of Cancer Monthly.
12. Links to Other Sites
The Site contains links, references and pointers to other sites on the Internet which may be maintained by third parties. These references and/or links to the Third Party websites are provided for your reference and convenience only, and do not imply any review or endorsement of the material on these Third Party websites or the sites themselves or any association with their operators. The Third Party websites (and any websites to which they link) may contain information about uses of products that have not been approved or cleared by the Food and Drug Administration. Cancer Monthly does not endorse any “off-label” uses. The Third Party websites (and the websites to which they link) may contain information that is inaccurate, incomplete, or outdated. Your access and use of the Third Party websites (and any websites to which they link) is solely at your own risk. Cancer Monthly does not control, and is not responsible for, the availability, accuracy, privacy policy, or currency of such Third Party websites or any information, content, products or services accessible from such Third Party websites.
You should not construe anything on the Site as a promotion or solicitation for any product or for the use of any product that is not authorized by the laws and regulations of the country in which you are located.
13. Indemnification
You agree to indemnify, defend, and hold harmless Cancer Monthly and its directors, officers, managers, employees, agents, investors, and licensors (collectively, the “Indemnified Parties”) from and against any and all claims, demands, actions, liabilities, losses, costs, damages, and expenses (including reasonable attorneys’ fees and costs) arising out of or relating to:
- Your use of the Content or the Site, including any breach of this Agreement;
- Any breach by you of the representations and warranties set forth in Section 6.J, including (without limitation) any claim arising from your provision of a telephone number that you do not own, do not have authority to provide consent for, or that has been reassigned to another person;
- Any claim by a third party that they received calls or text messages because you provided their telephone number, or a number that was previously theirs, in connection with this Site;
- Any claim arising from inaccurate, incomplete, or out-of-date information you provided to Cancer Monthly; or
- Any Unsolicited Information provided by you.
You shall cooperate as fully as reasonably required in the defense of any claim. Cancer Monthly reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification, without relieving your indemnification obligations, and you shall not in any event settle any matter without the written consent of Cancer Monthly.
14. Disclaimer of Warranty
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SITE (INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, FEE-BASED SERVICES, MATERIALS AND INFORMATION MADE AVAILABLE THEREON OR ACCESSED BY MEANS THEREOF) ARE PROVIDED AS IS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPATIBILITY, SECURITY, ACCURACY, OR NON-INFRINGEMENT. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, CANCER MONTHLY MAKES NO WARRANTIES AND SHALL NOT BE LIABLE FOR THE USE OF THE SITE UNDER ANY CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE BY CANCER MONTHLY. CANCER MONTHLY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY, OR THAT THE SITE, INCLUDING THE SERVER(S) ON WHICH THE SITE IS OPERATED, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
IN ADDITION, CANCER MONTHLY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY OF ANY INFORMATION CONTAINED HEREIN AND EXPRESSLY DISCLAIMS ANY OBLIGATION TO UPDATE SAID INFORMATION. THE SITE AND THE CONTENT ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND. THERE MAY BE DELAYS, OMISSIONS OR INACCURACIES IN THE CONTENT AND THE SITE. CANCER MONTHLY DOES NOT WARRANT THE ACCURACY, COMPLETENESS, TIMELINESS, NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE CONTENT OR THE SITE ITSELF, AND WE HEREBY DISCLAIM ANY SUCH EXPRESS OR IMPLIED WARRANTIES.
15. Limitation of Liability
USE OF THE SITE IS AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF FILES, INFORMATION, COMMUNICATIONS, CONTENT, OR OTHER MATERIAL (INCLUDING WITHOUT LIMITATION SOFTWARE) ACCESSED THROUGH OR OBTAINED BY MEANS OF THE SITE. UNDER NO CIRCUMSTANCES SHALL CANCER MONTHLY, ITS DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES, AGENTS, INVESTORS OR LICENSORS, OR ANY PROVIDER OF TELECOMMUNICATIONS OR NETWORK SERVICES FOR CANCER MONTHLY, BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SITE, EVEN IF CANCER MONTHLY, THEIR RESPECTIVE DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES, AGENTS, INVESTORS OR LICENSORS, OR THEIR PROVIDERS OF TELECOMMUNICATIONS OR NETWORK SERVICES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY APPLIES TO ALL LOSSES AND DAMAGES OF ANY KIND WHATSOEVER, WHETHER DIRECT OR INDIRECT, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHERWISE. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER BASIS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. EVEN IF ANY PART OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF CANCER MONTHLY UNDER SUCH CIRCUMSTANCES SHALL NOT EXCEED THE COST OF YOUR CURRENT SUBSCRIPTION FOR OUR FEE-BASED PRODUCTS OR ONE HUNDRED ($100.00) DOLLARS IN THE AGGREGATE, WHICHEVER IS LESS. IF ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY, DISCLAIMERS AND EXCLUSIONS OF WARRANTIES AND DAMAGES SET FORTH IN THIS AGREEMENT SHALL REMAIN IN EFFECT.
16. Dispute Resolution; Binding Arbitration; Class Action Waiver; Jury Trial Waiver
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT, YOUR RIGHT TO A JURY TRIAL, AND YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION.
- Agreement to Arbitrate.
Except for the matters specifically excluded below, you and Cancer Monthly agree that any dispute, claim, or controversy arising out of or relating to (i) this Agreement, (ii) your use of the Site, (iii) the Free Materials offer described in Section 5, or (iv) any communications described in Section 6 (including any claim under the Telephone Consumer Protection Act, the Florida Telephone Solicitation Act, or any analogous federal or state law) shall be resolved exclusively by final and binding individual arbitration administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules then in effect.
- Class Action Waiver.
YOU AND CANCER MONTHLY AGREE THAT ANY DISPUTE WILL BE RESOLVED ON AN INDIVIDUAL BASIS ONLY. NEITHER YOU NOR CANCER MONTHLY WILL HAVE THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION, AND THE ARBITRATOR SHALL HAVE NO AUTHORITY TO CONSOLIDATE OR ARBITRATE CLAIMS ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. If this class action waiver is found to be unenforceable as to any particular claim or remedy, then that claim or remedy (and only that claim or remedy) shall be severed and brought in a court of competent jurisdiction in Pinellas County, Florida, and the remainder of this Section shall continue to apply.
- Arbitration Procedures.
The arbitration shall be conducted by a single arbitrator. The seat of arbitration shall be Pinellas County, Florida, although the parties may agree to conduct hearings telephonically or by videoconference. The arbitrator shall apply Florida substantive law (without regard to conflict-of-law principles) and applicable federal law. The arbitrator’s award shall be final and binding, and judgment on the award may be entered in any court of competent jurisdiction.
- Exceptions.
Notwithstanding the foregoing, either party may (i) bring an individual action in small claims court for any dispute within that court’s jurisdiction, and (ii) seek injunctive or other equitable relief in a court of competent jurisdiction in Pinellas County, Florida to protect intellectual property rights or to enforce the confidentiality provisions of this Agreement.
- Opt-Out Right.
You may opt out of this arbitration agreement by sending written notice of your decision to opt out to Cancer Monthly, Inc., 6800 Gulfport Blvd. S., Suite 201-219, South Pasadena, FL 33707, within thirty (30) days of first accepting this Agreement. Your notice must include your name, address, and a clear statement that you wish to opt out of arbitration. Opting out will not affect any other provision of this Agreement.
- Federal Arbitration Act.
This Agreement evidences a transaction involving interstate commerce, and the Federal Arbitration Act, 9 U.S.C. § 1 et seq., shall govern the interpretation and enforcement of this arbitration agreement.
- Pre-Arbitration Notice and Cure.
Before initiating arbitration, the party asserting a claim must provide the other party with a written Notice of Dispute. Notice to Cancer Monthly must be sent to Cancer Monthly, Inc., 6800 Gulfport Blvd. S., Suite 201-219, South Pasadena, FL 33707, Attn: Legal/Disputes, with a copy to [email protected]. Notice to you will be sent to the most recent address Cancer Monthly has on file. The Notice of Dispute must describe the nature and basis of the claim and the specific relief sought. The parties shall attempt in good faith to resolve the dispute for sixty (60) days after Notice is received. Arbitration may be commenced only after that 60-day period has elapsed without resolution. Failure to provide a Notice of Dispute and observe the 60-day period is a material breach of this Agreement and grounds for dismissal of any arbitration demand.
- Mass Arbitration Protocol.
If twenty-five (25) or more substantially similar arbitration demands are filed against Cancer Monthly by or with the assistance of the same law firm, group of coordinated counsel, or representative within a 180-day period (collectively, “Mass Arbitrations”), the parties agree that the Mass Arbitrations shall be administered as follows: (i) the demands shall be grouped into batches of no more than fifty (50) demands each; (ii) the parties shall select ten (10) demands per batch (five by each side) to proceed as bellwether arbitrations; (iii) the remaining demands in the batch shall be stayed pending resolution of the bellwethers; (iv) after the bellwethers conclude, the parties shall engage in good-faith mediation regarding the remaining stayed demands before any further arbitrations proceed; and (v) AAA filing and administrative fees for stayed demands shall not become due until those demands proceed. The arbitrator(s) and AAA are authorized to apply this protocol. If AAA declines to administer Mass Arbitrations under this protocol, the parties shall select an alternative arbitral forum that will administer them under these terms or substantially similar terms.
- Jury Trial Waiver.
TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AND CANCER MONTHLY EACH KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SITE, THE FREE MATERIALS OFFER, OR ANY COMMUNICATIONS DESCRIBED IN SECTION 6, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. THIS JURY TRIAL WAIVER APPLIES TO ANY DISPUTE THAT, FOR ANY REASON, PROCEEDS IN COURT NOTWITHSTANDING THE ARBITRATION PROVISIONS ABOVE.
- Confidentiality of Arbitration.
The parties agree that any arbitration proceeding under this Section, including the existence of the proceeding, all submissions, all evidence, and the arbitrator’s award, shall be confidential and shall not be disclosed to any third party except (i) as required by applicable law, (ii) to the parties’ respective attorneys, accountants, insurers, and other advisors who agree to maintain confidentiality, (iii) to enforce or challenge the award, or (iv) with the prior written consent of the other party.
- Limitations Period.
Except for claims that, by law, may not be subject to a contractually shortened limitations period (including statutory consumer-protection claims under the Telephone Consumer Protection Act, the Florida Telephone Solicitation Act, and other statutes where shortening is prohibited), any claim or cause of action arising out of or relating to this Agreement, the Site, or the Free Materials offer must be commenced within one (1) year after the cause of action accrues or be permanently barred.
- Severability of Arbitration Provisions.
If any provision of this Section 16 (other than the Class Action Waiver) is held unenforceable, that provision shall be severed and the remainder of this Section shall remain in effect. If the Class Action Waiver is held unenforceable as to any particular claim, the entirety of Section 16 shall be unenforceable as to that claim only, and that claim shall proceed in court in Pinellas County, Florida; all other claims shall remain subject to arbitration.
17. General
This Agreement constitutes the entire agreement between you and Cancer Monthly with respect to the Site and supersedes all prior agreements between you and Cancer Monthly. Failure by Cancer Monthly to enforce any right or provision of this Agreement shall not be construed as a waiver of any provision or right.
This Agreement is governed by the laws of the State of Florida, without regard to its conflict-of-law principles. Subject to the arbitration provisions in Section 16, you consent to personal jurisdiction in the federal and state courts located in Pinellas County, Florida, for any action arising out of or relating to this Site or your use of this Site, and such courts shall have exclusive jurisdiction over all such actions. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. In any such action, the prevailing party shall be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney’s fees.
Assignment. Cancer Monthly may assign this Agreement, in whole or in part, to any successor in interest, parent, subsidiary, affiliate, or third party in connection with any merger, acquisition, sale of assets, reorganization, or by operation of law, without your consent and without notice. You may not assign or transfer this Agreement, or any rights or obligations under it, without the prior written consent of Cancer Monthly, and any attempted assignment in violation of this provision shall be void.
In the event that any portion of this Agreement is held unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect. All rights not expressly granted herein are hereby reserved. Section headings are for convenience only and shall not affect interpretation.
18. Electronic Communications and Records
You consent to receive all communications, agreements, notices, and disclosures from Cancer Monthly in electronic form, including by email, by SMS, or by posting to the Site. You agree that all such electronic communications satisfy any legal requirement that such communications be in writing. You further agree that your acceptance of this Agreement (whether by clicking “I Agree,” submitting a form, checking a consent box, or otherwise affirmatively manifesting assent on the Site) constitutes your electronic signature, has the same legal force and effect as a handwritten signature, and creates a valid and binding agreement between you and Cancer Monthly under the federal Electronic Signatures in Global and National Commerce Act, the Florida Electronic Signature Act, and the Uniform Electronic Transactions Act. You may withdraw consent to receive electronic communications at any time by contacting Cancer Monthly at [email protected], but doing so may terminate your ability to use certain features of the Site.
