Terms of Service for DrMirkin.com
Welcome to DrMirkin. a healthful lifestyle site for people who are interested in fitness, nutrition and all aspects of good health. The content is created by Gabe Mirkin, M.D., a board-certified physician with more than fifty years in medical practice. Dr. Mirkin’s reports and opinions are for information only, and are not intended to diagnose or prescribe. For your specific diagnosis and treatment, consult your doctor or health care provider. This Terms of Service agreement (the “Agreement”) governs our relationship with users and others who interact with the DrMirkin platform, application and website, as well as all information, resources, tools and services provided through DrMirkin, which we call the “DrMirkin Services” or “Services.” By using or accessing the DrMirkin Services, you understand and agree to accept and adhere to the terms and conditions as stated in this Agreement along with the terms and conditions as stated in our Privacy Policy (please refer to the Privacy section below for more information), as updated from time to time in accordance with the terms below, and applicable laws, regulations and generally accepted online practices or guidelines. This agreement is in effect as of September 10, 2017.
1. Privacy
Your privacy is very important to us, which is why we’ve created a separate Privacy Policy. Our privacy policy is included under the scope of this Agreement. To read our privacy policy in its entirety, click here [add link to Privacy Policy]
2. License Grant to Use Services and DrMirkin Content
You understand and acknowledge that your use of the Services (including, without limitation, DrMirkin Content as defined in section 2(c) below) is a privilege and not a right. Subject to this Agreement, DrMirkin grants you a non-exclusive, limited, personal license to use the Services and the DrMirkin Content in accordance with this Agreement. You agree you will (and will ensure others):
(a) Use the Services or DrMirkin Content only in strict compliance with this Agreement; and
(b) Not create derivative works from any DrMirkin Content. Use of the Services or DrMirkin Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
(c) Except for your limited right of use of the Services, DrMirkin retains all right, title and interest (including, without limitation, all intellectual property rights) in and to the Services and all content created and used by DrMirkin in conjunction with the Services including, by way of example and not limitation, all software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, and music created by DrMirkin (the “DrMirkin Content”) and the materials made available by Creators through DrMirkin (“Creator Posts”); all of which are the exclusive property of DrMirkin and its licensors. DrMirkin retains all rights not expressly granted to you.
3. Access
(a) Registration is not required for use of the Services. DrMirkin is provided at no charge and no personally identifiable information is collected for use by DrMirkin.
(b) You are responsible for maintaining the confidentiality of any login information associated with any account you use to access our Services. Accordingly, you are responsible for all activities that occur under your account/s.
(c) Accessing (or attempting to access) any of our Services by any means other than through the means we provide, is strictly prohibited. You specifically agree not to access (or attempt to access) any of our Services through any automated, unethical or unconventional means.
(d) Engaging in any activity that disrupts or interferes with our Services, including the servers and/or networks to which our Services are located or connected, is strictly prohibited.
(e) Attempting to copy, duplicate, reproduce, sell, trade, reverse engineer or resell DrMirkin Services is strictly prohibited.
(f) You are solely responsible any consequences, losses, or damages that we may directly or indirectly incur or suffer due to any unauthorized activities conducted by you, as explained above, and may incur criminal or civil liability.
4. User Submissions and Information
(a) DrMirkin does not solicit, use or publish any User Submissions from you or any other third party Users of our Services.
(b) We always appreciate your feedback or other suggestions about DrMirkin, but you understand that we may use your feedback or suggestions without any obligation to compensate you for them (just as you have no obligation to offer them).
5. Safety
We do not provide any open communication tools on DrMirkin, such as blog comments, blog posts, public chat, forums, message boards, newsgroups, product ratings and reviews, etc. We do our best to keep DrMirkin safe, but we cannot guarantee it. We need your help to keep DrMirkin safe, which includes the following commitments by you:
a. You will not collect information, or otherwise access DrMirkin, using automated means (such as harvesting bots, robots, spiders, or scrapers, or automated pro-active following or un-following).
b. You will not engage in multi-level marketing, such as a pyramid scheme, on DrMirkin.
c. You will not upload viruses or other malicious code.
d. You will not solicit login information or access an account belonging to someone else.
e. You will not use DrMirkin to do anything unlawful, misleading, malicious, or discriminatory.
f. You will not do anything that could disable, overburden, or impair the proper working or appearance of DrMirkin, such as a denial of service attack or interference with page rendering or other DrMirkin functionality.
g. You will not facilitate or encourage any violations of this Agreement or our policies.
6. Registration and Account Security
DrMirkin does not require registration for use of its Services and Content. Users are not required to register or to maintain account information.
7. Protecting Other People’s Rights
We respect other people’s rights, and expect you to do the same. There are no opportunities to interact with other Users at DrMirkin.
8. Special Provisions Applicable to Software
(a) If you download or use our software, such as a stand-alone software product, an app, or a browser plugin, you agree that from time to time, the software may download and install upgrades, updates and additional features from us in order to improve, enhance, and further develop the software.
(b) You will not modify, create derivative works of, decompile, or otherwise attempt to extract source code from us, unless you are expressly permitted to do so under an open source license, or we give you express written permission.
9. Amendments
We reserve the right to change this Agreement from time to time. You acknowledge and agree that it is your responsibility to review this Agreement periodically to familiarize yourself with any modifications. Your continued use of this site after being notified of such modifications will constitute acknowledgment and agreement of the modified terms and conditions.
10. Termination
If you violate the letter or spirit of this Agreement, or otherwise create risk or possible legal exposure for us, we can stop providing all or part of DrMirkin to you. You may also stop using DrMIrkin at any time. In all such cases, this Agreement shall terminate, but all provisions of this Agreement that by their nature should survive termination shall survive termination, including without limitation ownership provisions, warranty disclaimers, indemnity and limitations of liability. You agree that we may, at our sole discretion, suspend or terminate your access to all or part of our website and Services with or without notice and for any reason, including, without limitation, breach of this Agreement. Any suspected illegal, fraudulent or abusive activity may be grounds for terminating your relationship and may be referred to appropriate law enforcement authorities. Upon suspension or termination, your right to use the Content we provide will immediately cease.
11. Disputes
(a) You will resolve any claim, cause of action or dispute (claim) you have with us arising out of or relating to this Agreement or DrMirkin exclusively in the United States District Court in Florida or state court located in central Florida, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such claims. The laws of the State of Florida will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions.
(b) If anyone brings a claim against us related to your actions, User Submission or information on DrMirkin, you will indemnify and hold us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim. Although we provide rules for User conduct, we do not control or direct Users’ actions on DrMirkin and are not responsible for the User Submission or information Users transmit or share on DrMirkin. We are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable information you may encounter on DrMirkin. We are not responsible for the conduct, whether online or offline, of any User of DrMirkin.
(c)WE TRY TO KEEP DRMIRKIN UP, BUG-FREE, AND SAFE, BUT YOU USE IT AT YOUR OWN RISK. WE ARE PROVIDING DRMIRKIN AS IS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THAT DRMIRKIN WILL ALWAYS BE SAFE, SECURE OR ERROR-FREE OR THAT DRMIRKIN WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS OR IMPERFECTIONS. DRMIRKIN IS NOT RESPONSIBLE FOR THE ACTIONS, USER SUBMISSION, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. WE WILL NOT BE LIABLE TO YOU FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS STATEMENT OR DRMIRKIN, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY ARISING OUT OF THIS STATEMENT OR DRMIRKIN WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID US IN THE PAST TWELVE MONTHS. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, DRMIRKIN’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
12. Special Provisions Applicable to Users Outside the United States
We strive to provide content that is useful to a global community, but we also strive to respect local laws. The following provisions apply to Users and non-Users who interact with DrMirkin outside the United States:
(a) You understand that the DrMirkin Content has been created and processed in the United States.
(b) If you are located in a country embargoed by the United States, or are on the U.S. Treasury Department’s list of Specially Designated Nationals you will not engage in commercial activities on DrMirkin. You will not use DrMirkin if you are prohibited from receiving services, or software originating from the United States.
13. Definitions
(a) By “DrMirkin” or “DrMirkin Services” we mean the content and services we make available, including through (a) our website at www.DrMirkin.com and any other DrMirkin branded or co-branded websites (including sub-domains, international versions, widgets, and mobile versions); (b) our Platform; (c) social plugins, buttons, and embeds and other similar offerings; and (d) other media, brands, products, services, software (such as a toolbar), devices, or networks now existing or later developed. DrMirkin reserves the right to designate, in its sole discretion, that certain of our brands, products, or services may be governed by separate terms and not this Agreement.
(b) By “Platform” we mean a set of APIs and services that enable others, including application developers and website operators, to retrieve data from DrMirkin or provide data to us.
(c) By “information” we mean facts and other non-personally identifiable information, including actions taken by Users and non-Users who interact with DrMirkin.
(d) DrMirkin does not accept or publish User Submissions, therefore any reference to “User Submissions” has been omitted in the Agreement.
(e) By “data” or “User data” or “User’s data” we mean any non-personally identifiable data or information that you or third parties can retrieve from DrMirkin or provide to DrMirkin through the Platform.
(f) By “post” we mean text content on DrMirkin or otherwise made available by using DrMirkin.
(g) By “use” we mean use, run, copy, publicly perform or display, distribute, modify, translate, or create derivative works of.
(h) By “application” we mean any application or website that uses or accesses the Platform, as well as anything else that receives or has received data from us. If you no longer access the Platform but have not deleted all data received from us, the term application will apply until you delete the data.
14. DMCA Notice
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify DrMirkin’s copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 (“DMCA”). For your complaint to be valid under the DMCA, you must provide the following information in writing:
1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
2. Identification of the copyrighted work that you claim has been infringed;
3. Identification of the material that is claimed to be infringing and where it is located on the Service;
4. Information reasonably sufficient to permit DrMirkin to contact you, such as your address, telephone number, and e-mail address;
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Name: [Diana Mirkin]
Attn: DMCA Notice
Company: DrMirkin.com
Address: 10901 Connecticut Avenue, Kensington MD 20895
Telephone & Fax: 1 352-350-6216
Email: info@drmirkin.com
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
If you believe that your work has been removed or disabled by mistake or misidentification, please notify our DMCA Agent in writing including the following information:
• a physical or electronic signature of the User of the Services;
• identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
• a statement made under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
• your name, address, telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if your address is outside of the United States, for any judicial district in which the service provider may be found, and that you will accept service of process from the person who provided notification under subscriber (c)(1)(C) or an agent of such person.
Please note that this procedure is exclusively for notifying DrMirkin and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with DrMirkin’s rights and obligations under the DMCA, including 17 U.S.C. 512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, DrMirkin has adopted a policy of terminating, in appropriate circumstances and at DrMirkin’s sole discretion, Users who are deemed to be repeat infringers. DrMirkin may also at its sole discretion, without liability, limit access to the Service to anyone who infringes on any intellectual property rights of others, whether or not there is any repeat infringement.
15. Third-Party Websites, Advertisers or Services
DrMirkin may contain links to third-party websites, advertisers, or services that are not owned or controlled by DrMirkin. DrMirkin has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites or services. If you access a third party website from DrMirkin, you do so at your own risk, and you understand that this Agreement and DrMirkin’s Privacy Policy do not apply to your use of such sites. You expressly relieve DrMirkin from any and all liability arising from your use of any third-party website or services or third party owned content. Additionally, your dealings with or participation in promotions of advertisers found on DrMirkin, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that DrMirkin shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
We encourage you to be aware of when you leave the Service, and to read the terms and conditions and privacy policy of any third-party website or service that you visit.
16. Waiver and Release
If you are a resident in a jurisdiction that requires a specific statement regarding waiver and release then the following applies. For example, California residents must, as a condition of this Agreement, waive the applicability of California Civil Code Section 1542, which states: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” You hereby waive this section of the California Civil Code and any similar provision in law, regulation or code that has the same effect or intent as the foregoing release.
17. Other Terms and Conditions
a. This Agreement makes up the entire agreement between the parties regarding DrMirkin, and supersedes any prior agreements.
b. If any portion of this Agreement is found to be unenforceable, the remaining portion will remain in full force and effect.
c. If we fail to enforce any of this Agreement, it will not be considered a waiver.
d. Any amendment to or waiver of this Agreement must be made in writing and signed by us.
e. You will not transfer any of your rights or obligations under this Agreement to anyone else without our consent.
f. All of our rights and obligations under this Agreement are freely assignable by us in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.
g. Nothing in this Agreement shall prevent us from complying with the law.
h. This Agreement does not confer any third party beneficiary rights.
i. We reserve all rights not expressly granted to you.
j. You will comply with all applicable laws when using or accessing DrMirkin.
