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Consumer Participation Agreement
1. Acceptance. As you are aware, Bid For Surgery is a unique and innovative reverse bidding program made available at www.medicineonline.com (the "Site") by Medicine Online, Inc. ("MOL"), which allows you to search for and select surgeons or dentists who agree with you to perform elective, cosmetic surgery, cosmetic dentistry, laser vision correction surgery (LASIK procedure) and podiatric surgery (the "Program"). Your participation in the Program and use of the Site is subject to the following covenants, conditions and restrictions as they may be modified or supplemented from time to time by MOL (the "Agreement"). BY COMPLETING THE REGISTRATION FORM AND CLICKING THE "SUBMIT" BUTTON AT THE END OF THESE TERMS, YOU ARE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT AND YOUR WILLINGNESS TO BE BOUND BY ALL OF ITS TERMS AS THEY MAY BE CHANGED FROM TIME TO TIME BY MOL. EACH SUBSEQUENT TIME YOU USE THIS SITE, YOU SIGNIFY YOUR ACCEPTANCE OF THE AGREEMENT, INCLUDING ANY AND ALL MODIFIED OR NEW TERMS. IF, AT ANY TIME, YOU DO NOT ACCEPT ALL OF THE TERMS OF THIS AGREEMENT, THEN YOU MAY NOT USE OR CONTINUE TO USE THE SITE, MAY NOT PARTICIPATE OR CONTINUE TO PARTICIPATE IN THE PROGRAM, AND MUST SIGNIFY YOUR NON-ACCEPTANCE OF THIS AGREEMENT BY DISCONTINUING YOUR USE OF THE SITE AND PARTICIPATION IN THE PROGRAM.
2. Program Procedures. You agree to use the Site and the Program in accordance with each of the following:
(a) You agree to post your bid request and medical and personal information on the Site, in accordance with this Agreement and all Program requirements and instructions. You may post bid requests for the performance of more than one procedure at the same time, if you so desire. However, you may not post a request for any procedure that is not among the procedures included within the Program.
(b) MOL Fees. To access to the complete bidding information, including the identifying information about the bidding Providers, you agree to authorize MOL to charge your credit card in the amount of the transaction fees should certain conditions be met.
a. MOL shall add an "Electronic Bid Fee of Two dollar ($2.00) to the Provider's professional fee bid, which amount will be your financial obligation to MOL for the right to view bid results. This fee is charged only once per bid and you have the right to return to view the bids as many times as you wish with no additional charge.
b. If you select a Participating Provider through the Bid For Surgery program and elect to have the bid upon procedure performed by that Provider, MOL will charge you a "Procedure Transaction Fee" payable to MOL. The amount of this fee will be included as a separate line item in the bid information given to you on the site prior to a request for charge authorization. The amount of this fee will vary from less than two percent (2%) of the average charge for expensive procedures to as high as five per cent (5%) for the average price of the least expensive procedures. Prior to viewing bids the first time, you will be asked to authorize the charge against your credit card for the "Electronic Bid Fee" and the "Procedure Transaction Fee". After the authorization is approved you will immediately be charged the one-dollar "Electronic Bid Fee". You are obligated to pay a Procedure Transaction Fee only if you go through with the procedure. You agree and authorize MOL to process the Procedure Transaction Fee in one of the following two circumstances: (1) MOL has been notified of a scheduled procedure or completed procedure, or (2) if, after twice requesting information from you via e-mail during the forty-five days following the date of the authorization, we do not get a return response confirming the status of your procedure. It shall be your responsibility to respond to one of the email inquiries within seven (7) days to assure that you are not charged a transaction fee if you elect to forgo the procedure. You agree that MOL will automatically charge the transaction fee to your credit card if you fail to respond to the inquiry that you have not reached an agreement with a participating Provider. MOL shall have no further obligations to provide you with prior notice, other than through this Agreement, that your credit card will be charged.
(c) You agree that all surgeons and dentists who are participating in the Program ("Providers") will have the right to post their bids for the performance of your requested procedure only during the f period seven (7) days from the time that you post your request for a bid on the Site.
(d) You agree to meet with each Provider whom you select to be interviewed in a face-to-face consultation within twenty-one (21) days of the close of the bidding process, and during such consultation to verify the completeness and accuracy of the information provided by you to MOL at the time of posting of your bid request. You further agree that the Providers whom you select to be interviewed are obligated to provide you with only one, free, face-to-face consultation within twenty-one (21) days of the close of the bidding process.
(e) You agree to not enter into any agreement with a Provider before you have had a face-to-face consultation with that Provider. You acknowledge and agree that as a result of special circumstances or complications discovered during the face-to-face consultation or examination, the ultimate price a participating Provider decides to charge for the performance of the procedure may be higher than the amount of the participating Provider's previous bid. You agree to notify MOL if you feel that a participating Provider has altered his or her price inappropriately or without justification following the in-person consultation and examination.
(f) Once you have selected a Provider to perform the procedure, you agree to notify MOL of all terms of the final agreement between you and that Provider, including, without limitation, the name of the Provider, procedure, when it will be performed, where it will be performed, and the total amount of the professional fee to be paid by you to the Provider.
(g) You agree to allow the selected Provider to perform a complete history and physical examination and evaluation of you prior to treatment, without relying on the information provided by you to MOL at the time of posting of your bid request.
(h) You agree to allow the selected Provider to collect directly from you any and all professional fees or other fees that you have agreed to pay for the performance of the procedure.
(j) You agree not to directly or indirectly disclose to or discuss with other participating Providers or any other person or entity except MOL, yours or any other participating Provider's professional fee bids.
(k) You agree not to directly or indirectly take, or authorize or permit the taking of, any action that is intended or otherwise would or could have the effect of circumventing any of the terms of this Agreement or the Program, including, but not limited to, entering into an agreement with any participating Provider for the performance of any additional or subsequent procedures that are included in the Program.
(l) You agree to notify MOL within forty-five (45) days of the close of the bidding period if you have not reached an agreement with a participating Provider.
(m) You agree to promptly report to MOL any dissatisfaction with any services provided to you by a participating Provider.
3. Additional Program Procedures. Under the Program, all bids are posted in a "blind" manner. You will know the credentials and professional fee bids of the Providers, but you will not know their names or identities. Similarly, participating Providers will not know the names or professional fee bids of the other bidders. Only the number of bids posted and the geographical location of the other bidders will be viewable for each procedure. During the bidding period, participating Providers can post multiple bids and you can see the anonymous professional fee bids by logging on to the Site. You will also have access to a secured bid page which contains information about the bids and the bidding Providers. The Site contains resources to assist you in researching the background, experience and other credentials of the bidding Providers. MOL will not, however, credential any of the participating Providers or otherwise verify the information provided by participating Providers to MOL during the registration process. MOL does not and will not refer or recommend any particular Provider, and will not otherwise influence you to select any particular participating Provider.
4. Registration Information. You agree to complete the health history and registration form each time that you post a bid request, and to provide MOL with all requested information, including but not limited to, your name, address and social security number. You agree to complete such for each time you post a bid request. The health history and registration forms will be different for different types of procedures. You represent and warrant to MOL that all of the health history and registration information that you provided to MOL, and all information that you may in the future provide to MOL, is and will be complete, accurate, up-to-date, and not misleading. You agree and authorize MOL to create a personal profile and account ("Personal Profile") in your name and to issue you a username and password relating to the Program. You agree to maintain the confidentiality of your username and password, and not to divulge your username and password to third parties, and to take reasonable steps to ensure that unauthorized persons do not access the Site or the Program. You are responsible for any and all activities that occur while your username and password are being utilized. You must notify MOL immediately if you become aware of any unauthorized use of your Personal Profile, username or password. You acknowledge that the information you provide to MOL may be relied on by participating Providers in placing bids. Your failure to provide MOL with accurate information on your health history information form will invalidate any bids participating Providers submit to MOL. You further agree continuously to modify, supplement, and update all information that you previously provided to MOL so as to ensure that all of your information maintained by MOL is and will be complete, accurate, up-to-date, and not misleading, including, without limitation, notifying MOL immediately following the occurrence of any change in the status of your health or medical history. You agree at any time upon MOL's request, to furnish MOL with evidence confirming all or any part of the registration information that you provided to MOL. MOL reserves the right to suspend or terminate your participating in the Program if MOL determines in its discretion that any of the information it has received from you is incomplete, inaccurate, false, misleading, or outdated.
5. Authorization for Release of Information. MOL's use of information and data about you is subject to the MOL Privacy Statement (a copy of which is posted on the Site and available at the footer of each web page, provided, however, that you agree and hereby authorize and direct MOL to use and disclose any and all information and data about you to participating Providers in the Program. ("Providers" are physicians and dentists only, ref. 2.c. above.) You hereby authorize the foregoing uses and disclosures, and represent and warrant that MOL shall be entitled to rely on the foregoing authorization in making the foregoing disclosures without obtaining any additional authorization from you.
6. Practice of a Profession. You agree that the Provider shall have sole and complete responsibility for the practice of his or her profession, and for the diagnosis, care and treatment of you. You further acknowledge and agree that MOL does not diagnose, treat or render medical advice, and is not otherwise engaging in the practice of any health care profession or otherwise creating a physician/patient or other professional relationship with you. To the contrary, MOL is functioning as an electronic forum by making clinical and professional information available to you and participating Providers. MOL does not warrant and assumes no responsibility for the reliability, accuracy, completeness, quality or timeliness of any of the information posted on the Site by a Provider. The information you obtain from the Site is not intended to recommend or encourage the performance of a procedure, or to otherwise influence your freedom of choice in the selection of a Provider.
7. Evaluation and Selection of Providers. You acknowledge and agree that MOL does not credential participating Providers or otherwise verify the information provided by participating Providers during the registration process. In addition, MOL does not and will not refer or recommend any particular Provider, and will not otherwise influence you to select any particular participating Provider. MOL makes available certain resources to assist you in researching and evaluating the qualifications of participating Providers, including, by way of example, easy-to-use click throughs to specialty professional organizations such as the American Board of Medical Specialties and state licensing boards, and online guides describing "how to choose a surgeon or dentist." Accordingly, you agree to assume sole and complete responsibility for investigating, evaluating and selecting the participating Provider who will perform the procedure that you have requested through the Program.
8. Payment of Professional Fees. You agree that you have sole and complete responsibility for paying any and all professional fees or other fees directly to the Provider. A Provider shall not, under any circumstances, including, without limitation, your nonpayment or insolvency, have the right to seek compensation from, have any recourse against, or impose any charge on MOL. You agree that neither you, nor any agent, employee, representative, trustee, or assignee of yours, may maintain any action at law or in equity against MOL to pay sums owed by you to a Provider. You further agree that these requirements shall: (a) survive the termination of this Agreement regardless of the cause giving rise to such termination; and (b) supersede any oral or written agreement to the contrary now existing or hereafter entered into between you and any Provider. You further agree that you will not bill to or collect from the Medicare, MediCal or any other program established by a federal or state governmental agency, any fees of any kind for services rendered to you by a participating Provider.
9. MOL Processing Fee. Deleted.
10. MOL Proprietary Rights. You acknowledge and agree that MOL reserves all of its rights in, title to, and ownership of its intellectual and other properties, and that the authorization provided for under this Agreement does not constitute a sale, grant, license, or other transfer of any ownership rights, title, or interests in, or any rights to control the disposition of, any MOL property, and that MOL is and at all times shall remain the sole and exclusive owner of all of its properties, which include, without limitation, the Site and Program name, design, functionality, look and feel, graphics, audio and video content, informational content, original e-mails authored by MOL or its agents or representatives, pictorial content, logos, trade secrets, trademarks, servicemarks, tradenames, servicenames, software, object codes, source codes, algorithms, formulas, patterns, compilations, programs, designs, devices, methods, techniques, prototypes and processes, as recorded on the original media and all subsequent copies of thereof, regardless of the form or media in which or on which the original and other copies may exist (the "MOL Property"). All such MOL Property is protected by state laws, the laws of the United States, and other countries, and as well by international treaties. Authorizations provided to you hereunder do not constitute an authorization or consent to infringe any patent, copyright or other interest under any state or United States law, or any foreign equivalent thereof. You agree not to infringe upon any of MOL's rights in the MOL Property. Without limiting the generality of the foregoing obligation, you agree not to decompile, reverse engineer, disassemble, or otherwise reduce MOL software to a human-perceivable form, and not to obtain, possess, disclose, or commercially use or exploit MOL Property in any way not explicitly provided for in this Agreement. You agree to not to sell, resell, possess, exploit or otherwise retain a benefit, commercial or otherwise, from transferring, distributing, licensing, performing or disposing of any MOL Property or services to third parties. You agree not to copy, modify, edit, adapt, reproduce, republish, upload, transmit, translate, rent, lease, license, loan, timeshare, sell or resell, assign, transfer, sub-license, distribute, publicly perform, publicly display, digitally perform, or create derivative works from, directly or indirectly, in whole or in part, any MOL Property or services, whether obtained through the Site or otherwise, including any of its content, code, graphics or software. You agree not to use any of the MOL Property except in accordance with this Agreement.
11. Non-Solicitation. You expressly acknowledge, understand and agree that all of the Providers who participate in the Program have a contractual relationship with MOL governing their initial and ongoing participation in the Program, which contractual relationship was developed and is maintained by MOL at great cost and expense. Therefore, during the term of this Agreement and at all times thereafter, you agree on behalf of yourself, and your agents and employees, not to request or advise, solicit or attempt to solicit, or assist any other person or entity to request or advise, solicit or attempt to solicit, any Provider to withdraw or terminate their participation in the Program or business with MOL, to utilize any competitor of MOL, or otherwise to arrange for professional medical care and services without utilizing the Program or any other services of MOL. You further agree on behalf of yourself, and your agents and employees, not to unfairly compete with MOL or otherwise interfere with the contractual relationship between MOL and any Provider or prospective Provider. You acknowledge and agree that, for purposes of the covenant and agreement contained in this paragraph, the solicitation of any Provider outside the auspices of the Program for the performance of any additional or subsequent procedures that are included in the Program, shall constitute the wrongful use and appropriation of MOL Property.
12. Remedies. You acknowledge and agree that the MOL's remedy at law for a breach or threatened breach of any of the provisions set forth in paragraphs 10 or 11 (collectively, the "Protective Provisions") would be inadequate and, in recognition of that fact, in the event of a breach or threatened breach of any of the Protected Provisions, MOL shall be entitled to, without posting any bond, and you agree not to oppose any request for, equitable relief in the form of specific performance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may be available. Nothing herein shall be construed as prohibiting MOL from pursuing any other remedies available to MOL for such breach or threatened breach until any such injunction is granted.
13. Term of Agreement. This Agreement shall have become effective as of your acceptance, and, shall remain in effect until it is terminated in accordance with other provisions of this Agreement, or until either party elects to terminate this Agreement, without cause, by delivering written notice to the other party at least thirty (30) days prior to the effective date of the termination.
14. Immediate Termination of Agreement. Notwithstanding paragraph 15 below, unless you receive written notice from MOL expressly stating that this Agreement will continue in full force and effect, this Agreement will terminate immediately and automatically upon the occurrence of any of the following circumstances: (a) falsification or omission of material information submitted by you in connection with this Agreement; (b) your death or (c) breach by you of any of the Protective Provisions of this Agreement. Additionally, in the event MOL files for bankruptcy protection or otherwise determines that it is insolvent, MOL may elect to terminate this Agreement immediately or assign its rights under the Agreement to any successor.
15. Termination of Agreement for Breach. Except as provided in paragraph 14, either party hereto shall have the right to terminate this Agreement immediately in the event that the other party shall be in violation of, or fails to comply with, any of the requirements of this Agreement, and such violation or failure remains uncured for a period of thirty (30) days following the delivery of written notice of such violation or failure. Termination of this Agreement shall not affect any right, remedy or relief MOL may have, either at law or in equity.
16. Suspension of Program Participation. Notwithstanding anything in this Agreement to the contrary, MOL reserves the right to suspend your participation in the Program at any time if MOL determines, in the exercise of its sole discretion, that you have failed to comply with any provision of this Agreement, including, without limitation, any failure by you to provide MOL with information that is complete, accurate, up-to-date, and not misleading.
17. Disclaimer of Warranties. MOL OPERATES THE PROGRAM AND PROVIDES ALL SERVICES "AS IS" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY LAW, MOL AND ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, CO-BRANDERS, REPRESENTATIVES AND PARTNERS DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Without limiting the generality of the foregoing, MOL does not warrant any of the following: (a) continuous, compatible, uninterrupted, error-free or secure access to the Site, the Program or other MOL services, (b) that material contained on the Site is correct, verified, accurate, complete, timely or otherwise reliable, (c) that the goods, products, services or information provided by or obtained through the Site or the Program will meet your needs or expectations or will otherwise be fit for any particular purpose, or (d) that the goods, products, services provided by or obtained through the Site or the Program will be free of any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. You agree that if you utilize information, goods, products or services from the Site, you do so at your own risk. You acknowledge that you have not entered into this Agreement in reliance upon any warranty or representation except those specifically set forth in these Agreement. Some jurisdictions do not allow the disclaimer of certain warranties. As a result, some of the above disclaimers may not apply to you.
18. Limitation of Damages and Liability. IN NO EVENT SHALL MOL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES, LOST PROFITS OR LOST SAVINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE USE OF THE SITE, THE PROGRAM, OR ANY INFORMATION, SERVICES OR PRODUCTS OBTAINED THROUGH THE SITE OR THE PROGRAM (HOWEVER ARISING, INCLUDING NEGLIGENCE). MOL'S TOTAL LIABILITY FOR ANY AND ALL DAMAGES, LOST PROFITS OR LOST SAVINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID BY YOU TO MOL. Some jurisdictions do not allow the limitation of certain damages or liabilities. As a result, some of the above limitations may not apply to you.
19. Indemnification. You agree to indemnify, defend and save harmless MOL, its shareholders, directors, officers, employees, agents, affiliates, co-branders and partners from and against any and all claims, actions, suits, proceedings, demands, damages, liabilities and settlements, including, without limitation, reasonable defense costs and legal fees, that are alleged to result or result from (a) the provision of medical care or services to you by any Provider; (b) your breach of this Agreement, and (c) your use of the Site or Program, your inability to use the Site or the Program, and your use of any other MOL services.
20. Notice of Infringement. Pursuant to 17 U.S.C. ' 230, as amended by Title II of the Digital Millennium Copyright Act, you agree to send all notices of alleged or claimed infringement to:
Medicine Online, Inc.
18800 Delaware Street, Suite 650
Huntington Beach, CA 92648
21. Governing Law. This Agreement shall be governed in all respects by the laws of the State of California as such laws are applied to agreements entered into and wholly performed within California between California residents. Both parties submit to jurisdiction in the state of California. The parties expressly exclude the application of the 1980 United Nations Convention on the Internal Sale of Goods (when and if applicable).
22. Arbitration. Any controversy or claim arising out of or relating to this Agreement or the breach hereof shall be settled by arbitration in accordance with the rules of commercial arbitration of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Such arbitration shall occur in Orange County, California, unless the parties mutually agree to hold such proceeding in another locale. The arbitrator(s) may award attorneys' fees and costs to the prevailing party in any such proceeding. The parties may conduct all discovery permitted under California law.
23. Access Outside the United States. MOL does not warrant or represent that the materials, information or services contained on the Site are available or otherwise appropriate for use outside the United States. If you access the Site from outside the United States, you agree that you are responsible for complying with all foreign and local rules regarding online content, conduct and the transmission of data. You further agree to comply with any and all export or re-export restrictions. If you download Site content or otherwise transmit technical data from the United States, you warrant to MOL that you are not located in a country where exporting or downloading such materials is prohibited.
24. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect without being impaired or invalidated in any way, unless such construction would defeat an essential purpose of this Agreement.
25. Assignment. You agree not to assign, delegate or otherwise transfer any of your rights or obligations hereunder, in whole or in part, directly or indirectly, by operation of law or otherwise, to any person or entity not a party to this Agreement, except to your agents or employees. Except as otherwise provided herein, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective representatives, heirs, administrators, successors and permitted assigns.
26. Headings. Section headings are inserted herein solely for the purpose of convenience of reference and shall not be construed as being a part of this Agreement.
27. Waiver. Waiver by either party to enforce any of the provisions, terms, conditions, or obligations of this Agreement must be in writing. No such waiver shall be construed as a waiver of any succeeding breach of such provision or a waiver of the provision itself. No extension of time for performance of any obligations or acts hereunder shall be deemed an extension of the time for performance of any other obligations or acts.
28. Notice. All notices, requests, demands, and other communications required to or permitted to be given under this Agreement shall be in writing and shall be conclusively deemed to have been duly given: (a) upon personal delivery; (b) if sent by fax, upon confirmation of receipt of fax; (c) if by e-mail, upon receipt by sender of a confirmation of delivery; (d) if by certified mail, postage prepaid, three days after date of mailing; or (e) if sent by way of a national overnight delivery service, charges prepaid, the next day, provided that the sending party receives confirmation of delivery from the delivery service provider.
29. Entire Agreement. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous, oral or written negotiations, understandings and amendments. This Agreement specifically applies to your participation in the Program, and therefore applies to you in addition to any other terms that are applicable to services other than the Program provided to you by MOL. In the event of any conflict between any term or provision of this Agreement, and any other terms that are applicable to services other than the Program provided to you by MOL, the term or provision of this Agreement shall control.
30. Modification of Agreement. You agree that MOL may modify or supplement the Agreement from time to time without giving you any notice other than posting the modified or supplemented Agreement on the Site. You agree that it is your responsibility to review the Agreement on the Site regularly to stay appraised of any modifications or supplements that MOL may make. For purposes of this Agreement, "you" means and includes you, your agents and employees, and any other persons or entities who or which are lawfully subject to your direction or control.
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