TERMS AND CONDITIONS
Effective Date: November 11, 2014
The following Terms and Conditions (these "Terms") describe the terms and conditions on which H & R Accounts Inc., d/b/a Avadyne Health ("Avadyne Health", "we" or "us") offers you access to this website (this "Site") and to related websites, applications, services and mobile applications on or to which these Terms are linked or referenced and any services or mobile applications linked to or accessible to or through the Site (collectively with this Site, the "Services").
Before accessing and using the Services, please read these Terms carefully because they constitute a legal agreement between Avadyne Health and you. BY USING ANY OF THE SERVICES, YOU AGREE TO THESE TERMS AND AFFIRM THAT YOU ARE ABLE AND LEGALLY COMPETENT TO DO SO.
IF YOU DO NOT AGREE TO ANY OF THESE TERMS, THEN PLEASE DO NOT USE THE SERVICES.
1. CHANGES TO TERMS
The Effective Date of these Terms is set forth at the top of this webpage. As we add new features, we may need to modify these Terms. Whenever possible, we will provide you with advance written notice of our changes and will not make changes that have a retroactive effect unless we are legally required to do so. Your continued use of the Services after the Effective Date constitutes your acceptance of the amended Terms. The amended Terms supersede all previous versions of or agreements, notices or statements of or about the Terms.
2. ADDITIONAL TERMS
Certain Services may be governed by additional terms and conditions presented in conjunction with them. You must agree to the additional terms before using such services. These Terms and any additional terms will apply equally. If any additional term is irrevocably inconsistent with any provision of these Terms, the additional term will prevail but solely to the extent of the inconsistency.
Please review our Privacy Notice, which is incorporated by reference, to learn about the information that we collect and how we process it.
Without limiting the terms of our Privacy Notice, you understand that Avadyne Health does not and cannot guarantee that your use of the Services and/or the information provided by you through the Services will be private or secure. Avadyne Health is not responsible or liable to you for any lack of privacy or security you may experience. You are responsible for using the precautions and security measures best suited for your situation and intended use of the Site and Services. Avadyne Health reserves the right at all times to disclose any information as we deem necessary to satisfy any applicable law, regulation, legal process or governmental request.
4. AVADYNE CONTENT
The Services, including any information, graphic, artwork, text, video clip, audio clip, trademark, logo and other content provided on, in or through the Services, (collectively, "Avadyne Content") are owned by Avadyne Health or its licensors and protected under both United States and foreign copyright, trademark and other laws.
Avadyne Health grants to you a personal, nonexclusive, nontransferable and limited license (without the right to sublicense) to access and use the Services and download, print and/or copy Avadyne Content solely for your own personal use and subject to these Terms. You acknowledge that the trade secrets and intellectual property embodied in the Services have not been and will not be licensed or otherwise disclosed to you. You acknowledge that the HTML code that Avadyne Health creates to generate the pages of the Services are protected by Avadyne Health's copyrights. All rights not expressly granted herein are reserved by Avadyne Health.
5. USING THE SITE AND/OR SERVICES
5.1. Eligibility: You must be the age of legal majority or older in your place of residence to use the Services.
5.2. Your Account: You are required to create an account ("Account") to use certain features of the Services. You agree that you will maintain your Account information to ensure that it is always current, complete and accurate. If you provide untrue, incomplete or inaccurate information, you understand that we have the right to terminate your Account and use of the Services.
By creating an Account, you agree that Avadyne Health may contact you using the email address that you provide when activating your Account.
Please do not share your Account with anyone else. You are responsible for all use of your Account, including use by others to whom you have provided access to your Account.
5.3. Your Responsibilities: You may use the Services for lawful, non-commercial purposes only. You may not use the Services in any manner that could damage, disable, overburden, or impair our servers or networks or interfere with any other party's use and enjoyment of the Services.
You may not attempt to gain unauthorized access to the Services, other users' Accounts or Avadyne Health's computer systems or networks, through hacking, password mining or any other means. Without limiting any of the foregoing, you agree that you shall not (and you agree not to encourage or allow any third party to):
Avadyne Health has the discretion to terminate your access to the Services without notice for any violation of the above rules.
You are solely responsible for any and all charges, fees and other costs related to use of the Services. If you access and use the Services on your smartphone, tablet or other mobile device, you must have wireless service through Wi-Fi or a participating mobile service provider. You agree that you are solely responsible for all message and data charges that you incur from your mobile service provider.
Certain services may require text messaging (SMS or MMS) capability. We do not impose a separate charge for text messaging services but message and data rates may apply. All charges are billed by and payable to your mobile service provider. Please contact your mobile service provider for pricing plans and details. Avadyne Health is not liable for any delays in the receipt of any text messages as delivery is subject to effective transmission from your mobile service provider. Text messages are provided on an "as is" basis and may not be available in all areas at all times.
Once you opt-in to receive text messages from us, the frequency of text messages that we send to you will depend on your transactions with us. By agreeing to receive text messages, you understand and agree that Avadyne Health may use an automatic dialing system to deliver text messages to you and that your consent is not required as a condition of purchase for any goods or services.
5.4. Submissions. Avadyne Health may from time to time offer areas in the Services where you and other users can post or otherwise submit suggestions, ideas, notes, concepts or other information or materials to or through the Services (collectively, "Submissions"). By sending, posting or transmitting Submissions to Avadyne Health (and/or our designees) or any area of the Services, you grant Avadyne Health and our designees a worldwide, non-exclusive, sub-licensable (through multiple tiers), transferable, royalty-free, perpetual, irrevocable right to use, reproduce, sublicense (through multiple tiers), distribute, create derivative works of, perform and import your Submissions in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, without compensation to you. In other words, Avadyne Health has the automatic right to use your Submissions -- including reproducing, disclosing, publishing or broadcasting your Submission -- in any medium and for any purpose. Under no circumstances are you entitled to payment if Avadyne Health uses one of your Submissions. All Submissions are deemed non-confidential and non-proprietary.
You are the owner of and are responsible for your Submissions. By posting a Submission, you represent and warrant that:
You acknowledge and agree that Avadyne Health has the right (but not the obligation) to alter, remove or refuse to post or allow to be posted any Submission. Avadyne Health takes no responsibility and assumes no liability for any Submission posted by you or any third party.
6. LINKS TO OTHER SITES AND SERVICES
The Site and/or Services may contain links to third-party websites and services, including social media (collectively, "Linked Services"). Linked Services are not under the control of Avadyne Health and Avadyne Health is not responsible for Linked Services or for any information or materials on, or any form of transmission received from, any Linked Services. The inclusion of a link does not imply endorsement by Avadyne Health of the Linked Services or any association with the operators of the Linked Services. Avadyne Health does not investigate, verify or monitor the Linked Services. Avadyne Health provides links to Linked Sites for your convenience only. You access Linked Services at your own risk.
7. DISCLAIMER OF WARRANTIES & LIMITATIONS OF LIABILITY
Avadyne Health warrants that Avadyne Health has validly entered into these Terms and has the legal power to do so. You warrant that you have validly entered into these Terms and have the legal power to do so.
EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. Avadyne Health specifically disclaims all warranties and conditions of any kind, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title, non-infringement, freedom from defects, uninterrupted use and all warranties implied from any course of dealing or usage of trade. Avadyne Health does not warrant that (a) the Services will meet your requirements, (b) operation of the Services will be uninterrupted or virus- or error-free or (c) errors will be corrected. Any oral or written advice provided by Avadyne Health or its authorized agents does not and will not create any warranty. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES WHICH MEANS THAT SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
YOUR USE OF THE SERVICES IS AT YOUR OWN RISK.
YOU AGREE THAT IN NO EVENT WILL AVADYNE HEALTH BE LIABLE (Y) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS OR BUSINESS INTERRUPTION), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER ARISING IN ANY WAY IN CONNECTION WITH THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF AVADYNE HEALTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR (Z) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES. The foregoing disclaimer of liability will not apply to the extent prohibited by applicable law.
IF FOR ANY REASON THE DISCLAIMERS OF WARRANTIES OR LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 7 IS/ARE INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, THEN AVADYNE HEALTH'S MAXIMUM LIABILITY FOR ANY TYPE OF DAMAGES HEREUNDER SHALL BE LIMITED TO $1,000.
You acknowledge and agree that the above limitations of liability together with the other provisions in these Terms that limit liability are essential terms and that Avadyne Health would not be willing to grant you the rights set forth in these Terms but for your agreement to the above limitations of liability.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR".
You agree to indemnify and defend Avadyne Health and its directors, officers, employees and agents from and against all losses, liabilities, actual or pending claims, actions, damages, expenses, costs of defense and reasonable attorneys' fees brought against Avadyne Health by any third party arising from your use of the Services or any violation of these Terms, the rights of a third party or applicable law. Avadyne Health reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification hereunder. No settlement that affects the rights or obligations of Avadyne Health may be made without Avadyne Health's prior written approval.
9. DISPUTE RESOLUTION
These Terms are governed by and construed and enforced in accordance with the internal laws of the State of Delaware without giving effect to the principles of conflicts of laws of such state and are binding upon the parties hereto in the United States and worldwide. You and Avadyne Health agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the interpretation or construction of These Terms.
YOU AND AVADYNE HEALTH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
YOU AND AVADYNE HEALTH AGREE THAT ALL CLAIMS WILL BE RESOLVED BY BINDING ARBITRATION IN THE MANNER SPECIFIED IN THIS SECTION 9 AND THAT YOU AND AVADYNE HEALTH WAIVE ANY RIGHT TO BRING SUCH CLAIMS BEFORE ANY COURT OF LAW. RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.
Any dispute between you and Avadyne Health and its agents, employees, officers, directors, principals, successors, assigns, subsidiaries or affiliates arising from or relating to these Terms and its interpretation or the breach, termination or validity thereof, the relationships which result from these Terms, including disputes about the validity, scope or enforceability of these Terms to arbitration (collectively, "Covered Disputes") will be settled by binding arbitration in the State of Delaware administered by the American Arbitration Association (AAA) in accordance with its rules (including its rules and procedures for consumer-related disputes) in effect on the date thereof. Prior to initiating any arbitration, the initiating party will give the other party at least 60 days' advanced written notice of its intent to file for arbitration. Avadyne Health will provide such notice by email to the email address that you provided when you created your account and you must provide such notice to Avadyne Health by email at firstname.lastname@example.org.
Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. If, however, you are able to demonstrate that the costs of arbitration will be prohibitive for you as compared to the costs of litigation, Avadyne Health will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive for you. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous, you agree to reimburse Avadyne Health for all fees associated with the arbitration that Avadyne Health paid on your behalf which you otherwise would be obligated to pay under the AAA's rules.
A single arbitrator will be selected in accordance with the AAA Commercial Arbitration Rules. The arbitration shall be conducted in the English language. The arbitrator will have the power to grant whatever relief would be available in court under law or in equity and any award of the arbitrator will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitrator will not, however, have the power to award punitive or exemplary damages, the right to which each party hereby waives. The arbitrator will apply applicable law and the provisions of these Terms and the failure to do so will be deemed an excess of arbitral authority and grounds for judicial review. The arbitrator's decision must be with written explanation and remain confidential. Avadyne Health and you agree that any Covered Dispute will be submitted to arbitration on an individual basis only. If any provision of the agreement to arbitrate in this Section 9 is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced (but in no case will there be a class, representative or private attorney general arbitration). Regardless of any statute or law to the contrary, notice on any claim arising from or related to these Terms must be made within one (1) year after such claim arose or be forever barred. For purposes of this Section 8, these Terms and related transactions will be subject to and governed by the Federal Arbitration Act, 9 U.S.C. sec. 1-16 (FAA).
Please Note: By agreeing to these Terms, you explicitly agree that any claims or actions that you may otherwise have against Avadyne Health under the laws of any jurisdiction outside the United States are hereby waived, including without limitation, any claims or actions under the laws of your own country, and that your sole location and applicable law for any disputes is in the United States according to the terms of this Section 8.
10. ELECTRONIC CONTRACTING
Your affirmative act of using and/or registering for the Services constitutes your electronic signature to these Terms, which includes our Privacy Notice, and your consent to enter into agreements with us electronically.
11. GEOGRAPHIC RESTRICTIONS
The Services are based in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access the Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you are responsible for compliance with local laws.
The Services may be subject to U.S. export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Services to, or make the Services accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Services available outside the U.S.
12. US GOVERNMENT RIGHTS
The Services are commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Services as are granted to all other users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
These Terms automatically terminate when you fail to comply with any term or condition of them. Avadyne Health may terminate or modify your access to the Services, with or without notice to you, at any time for any reason. For example, access to the Services may be denied without notice if Avadyne Health believes that you are a minor.
Termination will not limit any of Avadyne Health's other rights or remedies. Sections 4, 7, 8, 9 and 14, as well as any other provision that must survive in order to give proper effect to the intent and purpose of these Terms, shall survive termination.
14. CLAIMS OF COPYRIGHT INFRINGEMENT
We respond to notices of alleged infringement as required by the U.S. Digital Millennium Copyright Act ("DMCA"), including by removing or disabling access to material claimed to be the subject of infringing activity. If you have a good faith belief that your work has been copied in a way that constitutes copyright infringement or that your intellectual property rights otherwise have been violated in or through the Services, please send your claim or notice of infringement to:
Attn: Compliance Director
5320 22nd Avenue
Moline, IL 61265
Our DMCA Agent will only respond to notices and inquiries that comply with the requirements of the DMCA. Please see www.copyright.gov for more information.
If you have any questions about these Terms or the Services, please contact us at:
Attn: Compliance Director
5320 22nd Avenue
Moline, IL 61265
Payment & eBill Service Terms
Avadyne Health offers electronic payment and electronic bill presentment services (the "Payment & eBill Service").
Please carefully read the following Payment Authorization and eBill Delivery terms and our Terms of Service because they constitute a legal agreement (this "Authorization Agreement") between Avadyne Health and you. Please note in particular that our Terms of Service contain provisions that limit our liability to you and require you to resolve any dispute with us through final and binding arbitration on an individual basis and not as part of any class or representative action.
BY CHECKING THE BOX BELOW, YOU ARE ELECTRONICALLY SIGNING THIS AUTHORIZATION AGREEMENT AND AGREEING TO BE BOUND BY ITS TERMS. IF YOU DO NOT ACCEPT THE TERMS OF THIS AUTHORIZATION AGREEMENT, YOU MAY NOT ACCESS OR USE THE PAYMENT & EBILL SERVICE. This Authorization Agreement is not effective unless and until you electronically sign it.
In this Authorization Agreement, a "Payment" means an electronic funds transfer (EFT) from your bank or other financial institution account (your "Payment Account") that you authorize on a one-time, recurring or occasional basis.
By electronically signing this Authorization Agreement, you agree that you are providing authorization to Avadyne Health to collect and process Payments from your Payment Account to pay amounts owed to your healthcare provider.
You also agree that:
Cancellation of Recurring Payments: You may cancel a recurring Payment at any time up to three (3) Business Days prior to the date the Payment is scheduled to take place by contacting us at:
10604 Justin Drive
Des Moines, IA 50322
If your Payments are made by credit card, you also may need to contact your credit card issuer.
Authorization for eBill Delivery
By agreeing to eBill Delivery, you authorize Avadyne Health and its affiliates to establish and maintain a profile of your billing documents that are to be delivered electronically and displayed in a manner supported by the eBill Delivery service. The eBill Delivery service may include email, text messaging and telephone calls.
By checking the box below, you understand and agree that Avadyne Health may use an automatic dialing system to deliver text messages or telephone messages to you and that your consent to receive text messages and/or telephone messages is not required as a condition of purchase for any goods or services.
Elimination of Paper Document: Upon enrolling for eBill Delivery, you agree to receive electronic communications only. No paper documents or communications will be mailed to you.
Confirmation of Information: No communication through the eBill Delivery service will be established unless and until you confirm your consent to this Authorization Agreement. The eBill Delivery service will send a confirmation message following your enrollment which must be confirmed in order for eBill Delivery service to be established.
Cancellation: You may cancel the eBill Delivery service at any time by accessing the eBill Delivery Settings in your Account. If your cancellation is made orally, you cancellation must be confirmed in writing within fourteen (14) calendar days to the address above or it becomes ineffective. You are solely responsible for making arrangements for an alternative form of bill delivery.
You are responsible for understanding and complying with all terms, limitations and restrictions imposed by your financial institution on your Payment Account or credit/debit card issuer. Avadyne Health is not responsible for any loss or liability you may suffer because of any term, limitation or restriction on your Payment Account or credit/debit card. Avadyne Health also is not responsible for refusal by your financial institution or credit/debit card to honour any Payment request.
By agreeing to this Authorization Agreement, you agree that you are responsible for ensuring timely payment of all amounts due and for paying any charge, fee or expense associated with your use of the Payment and/or eBill Delivery service even if:
This Authorization Agreement will remain in effect until terminated by Avadyne Health or you. To terminate this Authorization Agreement, please contact us at:
10604 Justin Drive
Des Moines, IA 50322
You agree to provide Avadyne Health no less than fourteen (14) calendar days' written notice if you wish to terminate this Authorization Agreement in whole or in part. (If you contact us by telephone, we reserve the right to ask you to confirm your termination in writing and to send written confirmation within fourteen (14) calendar days.) Please note that you also must contact your financial institution to stop Payments from your Payment Account.