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Terms of Use Agreement

IMPORTANT!  READ THIS ENTIRE AGREEMENT CAREFULLY.THESE ARE THE TERMS AND CONDITIONS GOVERNING YOUR USE OF THE
www.ConvaCareServices.com WEBSITE(S) AND OUR SERVICES.

WELCOME to the ConvaCare Services, Inc. website available at and under www.ConvaCareSErvices.com and the related or linked portals, information management systems, password protected information systems, e-mail or wireless websites intended for use by us and CONVACARE® franchises owned or granted by us as well as potential franchises (collectively, “ConvaCare® Site”) – developed, hosted, maintained or operated by ConvaCare Services, Inc. (“we,” “us,” or “our”) or our designees.  This Terms of Service Agreement (this “Agreement”) sets forth the terms and conditions governing your use of the CONVACARE® Site and your access to and use of the webpage, sub-pages, URLs, links, trademarks, tradenames, trade dress, slogans, logos, copyrights, information, other content, wireless services, portals, e-mail functionalities, operating systems, and electronic communications or data management systems and services offered on or through the CONVACARE® Site (which, collectively with the CONVACARE® Site, constitute the “Services”).”  By accessing or using the CONVACARE® Site or any of the Services, you accept and agree to be legally bound by this Agreement, as it may be amended or supplemented from time to time by us (as further described below), and agree to all of our operating rules and/or policies and the Services that may be approved by us and published by us on the CONVACARE® Site as well as our “Privacy Policy” [Insert Hyperlink].  All these rules and policies are incorporated into this Agreement by this reference.  Further, certain areas of the CONVACARE® Site, including, without limitation, access to franchisee only areas may require registration and/or be subject to additional terms and conditions of use; and we will provide you with notice of such additional terms and conditions on registration.

We Reserve the Right to Revise this Agreement

We reserve the right, at any time and from time to time, to update, revise, supplement and to otherwise modify this Agreement, and to impose new or additional rules, policies, terms or conditions on your use of the Services.  Such updates, revisions, supplements, modifications and additional rules, polices, terms and conditions (collectively referred to in this Agreement as “Additional Terms”) will be effective immediately and incorporated into this Agreement upon our publishing them on the CONVACARE® Site, which may be given by any means we designate, including by our posting to the CONVACARE® Site.  Your continued use of any of the CONVACARE® Site following such notice will be deemed to conclusively indicate your acceptance of any and all such Additional Terms.  All Additional Terms are incorporated into this Agreement by this reference.

We May Revise or Terminate Any Part of the Services at Any Time

We reserve the right, at any time and from time to time, to modify or discontinue, temporarily or permanently, the CONVACARE® Site or the Services, with or without notice to you.  You agree that we, our parent(s), predecessor(s) and affiliate(s) will not be liable to you for any modification, general suspension or discontinuance of any CONVACARE® Site or the Services.  We may refuse or restrict anyone from access to any or all of the CONVACARE® Site or the Services at any time.

Acceptable Use of the Services.

  In order to use the CONVACARE® Site or the Services, you must obtain access to the World Wide Web (or such technology we may designate) directly or through devices that access content and pay any and all service fees, if any, associated with such access.

(a)        Individual Use.  Except as provided in (b) below, you agree that you are only authorized to visit, view and to retain a single copy of pages of this CONVACARE® Site solely for your own individual, non-commercial use, and that you shall not duplicate, download, publish, modify or otherwise distribute any material on this CONVACARE® Site for any purpose other than for your own individual use unless otherwise specifically authorized by us.  We post “Legal Notices” on pages of the CONVACARE® Site, which may not be removed even in your permitted copy. 

(b)        Commercial Use.  If you wish to link, publish, frame, refer to or provide information about the CONVACARE® Site, our CONVACARE® Marks (defined below), copyrighted materials or any Services on any website, web page, e-mail address or the like operated by you or your affiliates, or any companies, partnerships, limited liability partnerships or any other legal entity which you have an ownership or investment interest in (also collectively referred to as “you”), you must first obtain our prior written permission to do so and enter into an agreement with us on terms designated by us.  Contact www.info1@convacareservices.com if you seek to obtain our permission to access this CONVACARE® Site for commercial purposes.  By “commercial purposes,” we mean your engaging in the offer, consignment, lease or sale of any products or services.  If you wish to use the CONVACARE® Site for any commercial purpose, you must contact us at www.info1@convacareservices.com and obtain our prior written permission to do so.  If you are a CONVACARE® Franchise, any use of the CONVACARE® Site by you constitutes a commercial purpose and your use of them are governed by you Franchise Agreement with us and this Agreement.

(c)        Links. You must not create any links from your website to any website which bears the CONVACARE® Marks or our copyrighted materials or which offers residential home or townhome construction or sales, or offers any other of the Services or similar services without our express written consent.   If you wish to link to the CONVACARE® Site for any reason, you must contact us www.info1@convacareservices.com and obtain our prior written approval for such links. 

(d)        Security, Cracking and Hacking.  You shall not violate or attempt to violate the security of the Services.  Accordingly, you shall not: (i) access data or materials not intended for you; (ii) log into a server or account which you are not authorized to access; (iii) attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (iv) attempt to interfere with service to any user, host or network, including without limitation, via means of submitting a virus to the Services, overloading, “flooding,” “mailbombing” or “crashing” the Services.  Violations of system or network security may result in civil or criminal liability.  We reserve the right to investigate occurrences which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations.  You understand that data and communications, including e-mail and other electronic  communications, may be accessed by unauthorized third parties when communicated over the Internet.  You agree that it is your responsibility, and not ours, to obtain and use third party software products that support encryption and other security protocols compatible with such protocols (if any) that may be used by us from time to time in connection with the Services.

(e)        Spidering.  THE USE OF ANY TOOLS, PROGRAMS, ROBOTIC ALGORITHMS OR PRODUCTS TO AUTOMATICALLY DOWNLOAD OR “SPIDER” THE CONVACARE® SITE OR ANY OF THE PAGES OF THE CONVACARE® SITE INFRINGES ON OUR COPYRIGHTS.  DO NOT USE ANY SUCH TOOLS OR PRODUCTS ON OR IN CONNECTION WITH THE SERVICES!

(f)         Termination.  We may and will terminate your service immediately, if we believe that your conduct fails to conform with this Agreement.  Without limiting our rights and your limitations under this Agreement, if you use, or attempt to use the Services or CONVACARE® Marks or our copyrighted materials for any purposes other than its intended purposes (including without limitation by tampering, hacking, modifying or otherwise corrupting the security or functionality of the Services), you may also be subject to civil and criminal liability.

(g)        You Are Responsible For All of Your Activities and All of The Content You Post. You represent and warrant that any information you post or provide to us by means of the CONVACARE® Site, including, without limitation, as part of any registration or application or to gain access to any Services, is truthful, accurate, not misleading and offered in good faith.  Any information disclosed to you via the Services including, without limitation, any content in the personalized areas of the CONVACARE® Site, may be used only for its intended purpose.  We expect that you will exercise caution, good sense and proper judgment in using the Services.  You agree NOT to use the Services for or in connection with any of the following activities:

(i)         Spoofing or otherwise impersonating any person or entity, including, without limitation, any other users or any of our personnel, or falsely stating or otherwise misrepresenting your identity or affiliation in any way, or forging any TCP/IP packet header or any part of the header information in any e-mail or other posting;

(ii)         Any fraudulent or illegal purpose;

(iii)        E-mailing, uploading, or otherwise transmitting or using the Services in furtherance of the use or distribution of any unlawful, harmful, harassing, defamatory, tortious, libelous, abusive, threatening, vulgar, sexually explicit, obscene, hateful, racially, ethnically or otherwise objectionable material of any kind, or any material that is invasive of another’s privacy or exploits children, or transmitting any sexually explicit materials, including images and other content;

(iv)        Transmitting material that contains viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines or engines that are intended to damage, destroy, disrupt or otherwise impair a computer’s functionality or the operation of our (or anyone else’s) Services, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information, or transmit any materials that otherwise violate our rules or policies;

(v)         violating our rights in or to our intellectual property; and

(vi)        to assist you with breaching this Agreement, or any Franchise Agreement between any CONVACARE® System Franchise and us.

(h)        Do Not Violate Third Party Intellectual Property Rights.  Without any of our rights or your obligations under this Agreement, you may not, and by using the Services or an CONVACARE® Site you agree not to, use the Services or an CONVACARE® Site to: (i) transmit material that is copyrighted, unless you are the copyright owner or have obtained the permission of the copyright owner to transmit it; (ii) transmit material that reveals trade secrets, unless you own them or have the permission of the owner to so transmit them; or (iii) transmit material that infringes on any Intellectual Property Rights (as defined below) of others or violates the privacy or rights of publicity of others.  For purposes of this Agreement, the term “Intellectual Property Rights” means collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including, without limitation, moral rights and similar rights.

(i)         Ownership.  The trademarks, trade names, logos, color schemes, service marks, slogans, and similar means of identifying products or services displayed on any of the CONVACARE® Site, including without limitation, any variation of the terms or phrases “CONVACARE®” or “CONVA-CARE®” (collectively, the “CONVACARE® Marks”) and other Intellectual Property Rights are our, our affiliates’ or our licensors’ registered and/or common law CONVACARE® Marks or other Intellectual Property Rights.  All content and materials on the CONVACARE® Site including, without limitation, the CONVACARE® Marks, button icons, images, audio clips, and software, copyrights, patents and other Intellectual Property Rights included in the Services or an CONVACARE® Site, are our property and are protected by U.S. and international copyright, patent, trademarks, and other proprietary rights and Intellectual Property Rights laws. The compilation of all content on the CONVACARE® Site is our exclusive property and is protected by U.S. and international copyright laws.  All software used on the CONVACARE® Site is our property or our licensors and protected by U.S. and international copyright laws. Except to the minimum extent otherwise expressly permitted under copyright law, no copying or exploitation of material from the Services is permitted without the express written permission of us.  You may not copy, reproduce, republish, upload, post, transmit, sell, distribute, transfer or modify any of the content, data, information or materials found on the CONVACARE® Site. 

Compliance with Laws.

You may use the Services and the CONVACARE® Site only for lawful purposes. The Services and use of the CONVACARE® Site are subject to, and you agree that you will at all times comply with, all applicable local, state, national, and international laws, statutes, rules, regulations, ordinances and the like applicable to the use of the Services.  This obligation includes your agreement to comply with all applicable laws, automobile, sales, rental, or leasing industry-specific regulations, and rules relating to the export of technical and other data from the United States (and from your country if you are not located in the United States) and your agreement not to export or re-export any such data or any other content or materials in violation of such laws, rules or regulations without first obtaining all necessary licenses, consents and approvals therefore, as well as authorization from us.

We Make No Warranties

YOU USE THE SERVICES AND THE CONVACARE® SITE IS  AT YOUR SOLE RISK.  THE SERVICES AND THE CONVACARE® SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OF TITLE OR NONINFRINGEMENT.  WE DO NOT WARRANT THAT THE CONVACARE® SITE WILL BE AVAILABLE OR OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED.  IN ADDITION, WE DO NOT WARRANT THAT INFORMATION AVAILABLE ON OR THROUGH THE CONVACARE® SITE INCLUDING, WITHOUT LIMITATION, ESTIMATED FEES BASED ON USER-PROVIDED INPUT ANY SALES TRANSACTIONS PAGE OR SIMILAR SOFTWARE FUNCTION, ARE APPROPRIATE, ACCURATE OR AVAILABLE FOR USE IN ANY PARTICULAR JURISDICTION, AND ACCESSING THEM FROM JURISDICTIONS WHERE THEIR CONTENTS ARE ILLEGAL IS EXPRESSLY PROHIBITED.  FURTHER, WE DO NOT WARRANT THAT PUBLISHED FEES BASED ON USER-PROVIDED INPUT IS AN ACCURATE OR TRUE REFLECTION OF THE FEES, TERMS AND CONDITIONS THAT WILL BE BINDING BETWEEN THE CONTRACTING PARTIES.

Limitation of Liability.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE USE OF THE SERVICES OR ANY ASPECT OF THE CONVACARE® SITE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).  TO THE EXTENT THE FOREGOING LIMITATION OF LIABILITY IS, IN WHOLE OR IN PART, HELD TO BE INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF US FOR ANY REASON AND UPON ANY CAUSE OF ACTION (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY AND OTHER ACTIONS IN CONTRACT OR TORT) ARISING OUT OF OR IN ANY WAY RELATED TO THE CONVACARE® SITE OR THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES ACTUALLY INCURRED UP TO TWO HUNDRED FIFTY DOLLARS ($250). 

THE LIMITATION OF LIABILITY HEREIN APPLIES TO ALL LIABILITIES IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM YOUR USE OR YOUR INABILITY TO USE THE CONVACARE® SITE OR SERVICES, OR ANY OTHER MATTER ARISING FROM OR RELATING TO THE CONVACARE® SITE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

Indemnity of Us.

You agree to indemnify and hold us and our affiliates harmless, and, at our request, to defend us and our affiliates from and against any claim, demand, cause of action, debt, loss or liability, including reasonable attorneys’ fees, to the extent that such action is based upon, arises out of, or relates to your use (or inability to use) the Services, any aspect of the CONVACARE® Site, or any other activities of yours accomplished using the Services or the  CONVACARE® Site.

           
Choice of Law and Forum

The Services are controlled by us from within the State of Florida , USA, although it may be accessed and used throughout the world.  By submitting a registration or by accessing or using the Services, you and we each agree that the substantive laws of the State of Florida, USA will govern with respect to all matters relating to or arising from this Agreement, or the use (or inability to use) the Services, and that such laws will apply without regard to principles of conflict of laws.  Subject to the dispute resolution procedures set forth above, you and we agree and hereby submit to the exclusive jurisdiction and venue of the appropriate State and Federal courts located in Pinellas or Hillsborough Counties, Florida, USA with respect to such matters.  Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Services must be filed or otherwise commenced within one (1) year after such claim or cause of action arose or be forever barred.

Miscellaneous Terms.

Subject to the terms of this Agreement and our other operating rules and policies for the CONVACARE® Site, this Agreement constitutes the entire agreement between you and us with respect to the subject matter addressed herein, and governs your use of the Services, superseding any prior agreements between you and us relating to such subject matter, but this Agreement may be supplemented by any other agreement you enter into with us pursuant to a registration to access certain features of the CONVACARE® Site.  The failure of us to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.  If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and that the other provisions of this Agreement remain in full force and effect.  The section headings used in  this Agreement are for convenience only and have no legal or contractual effect.

Without limiting the foregoing, our Services at the CONVACARE® Site are not intended for use by or availability to minors.  IF YOU ARE NOT LEGALLY AN ADULT UNDER THE LAW WHERE YOU LIVE OR IF YOU ARE UNDER 18 YEARS OF AGE, YOU MAY NOT ACCESS THE CONVACARE® SITE OR USE THE SERVICES AND DO NOT PROVIDE ANY AGE-SPECIFIC INFORMATION TO US.  IF SO, PLEASE IMMEDIATELY DISCONTINUE USE OF THE SERVICES AND DO NOT ACCESS THE CONVACARE® SITE.

BY ANY ACT ON YOUR PART TO USE THE CONVACARE® SITE OR THE SERVICES IN ANY WAY, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND AND AGREE TO BE LEGALLY BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL OF THE TERMS AND CONDITIONS, POLICIES AND PROCEDURES INCORPORATED INTO IT.


COPYRIGHT NOTICE AND TAKEDOWN POLICY

NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to Service Provider’s Designated Agent. ALL INQUIRIES NOT RELEVANT TO THE FOLLOWING PROCEDURE WILL NOT RECEIVE A RESPONSE.

NOTE: THE FOLLOWING INFORMATION IS PROVIDED EXCLUSIVELY FOR NOTIFYING THE SERVICE PROVIDERS REFERENCED BELOW THAT YOUR COPYRIGHTED MATERIAL MAY HAVE BEEN INFRINGED. ALL OTHER INQUIRIES, (E.G. REQUESTS FOR TECHNICAL ASSISTANCE OR CUSTOMER SERVICE, REPORTS OF EMAIL ABUSE, AND PIRACY REPORTS), WILL NOT RECEIVE A RESPONSE THROUGH THIS PROCESS.

WE CAUTION YOU THAT UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO HEAVY CIVIL PENALTIES.  THESE INCLUDE MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS FEES INCURRED BY US, BY ANY COPYRIGHT OWNER, OR OUR RELYING UPON YOUR MISREPRESENTATION.  YOU MAY ALSO BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY.

Written notification must be submitted to the following Designated Agent:

Service Provider(s):                                                        ConvaCare Services, Inc.
19387 U.S. 19 North
Clearwater, Florida 33764
(727) 530-7700

Name of Agent Designated to Receive Notification of Claimed Infringement:
Scott P. Weber, Esq.
Full Address of Designated Agent to Which Notification Should be Sent:
DLA Piper US LLP
101 East Kennedy Boulevard, Suite 2000                           Tampa, Florida  33602-5149
                                                                                   
Telephone Number of Designated Agent:
(813) 222-5901
Facsimile Number of Designated Agent:
(813) 371-1103
Email Address of Designated Agent:                    scott.weber@dlapiper.com

 

To be effective, pursuant to Title 17, United States Code, Section 512(c)(3(A), the Notification must include the following:
An electronic or physical signature of the owner or of the person authorized to act on behalf of the owner of the copyright interest;
A description of the copyrighted work that you claim has been infringed, and a description of the infringing activity including of where the material that you claim is infringing is located on the Company’s site sufficient to allow us to locate the material; identification of the location where the original or an authorized copy of the copyrighted work exists, for example the URL of the website where it is posted or the name of the book in which it has been published
Your address, telephone number, and e-mail address;
A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.


Copyright ConvaCare Services. All rights reserved.
ConvaCare Services
2599 West Vernal Pike
Bloomington, Indiana 47404
800-822-4760 Phone
866-265-1035 Fax