SCAN Health Plan New Mexico Terms of Use
Effective Date:10/02/2023
THESE TERMS OF USE INCLUDE A DISCLAIMER OF WARRANTIES (Section 16), LIMITATION OF LIABILITY (Section 17), AND ARBITRATION OF DISPUTES (Section 20). WITH RESPECT TO THE ARBITRATION OF DISPUTES (Section 20), THESE TERMS OF USE REQUIRE YOU TO ARBITRATE ANY DISPUTES YOU HAVE WITH US ON AN INDIVIDUAL BASIS ONLY, AND BY USING THE WEBSITES AND ENTERING INTO THESE TERMS OF USE, YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN ANY COURT, TO HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY, OR TO BRING ANY CLAIMS AGAINST US IN A CLASS ACTION FORMAT (INCLUDING AS A CLASS REPRESENTATIVE OR MEMBER OF ANY PUTATIVE CLASS).
THESE WEBSITES DO NOT PROVIDE MEDICAL ADVICE OR THE PROVISION OF MEDICAL SERVICES: The information contained on the Websites (defined below) is not meant to replace the advice of or treatment by health care professionals. Always contact a qualified health care professional for any medical symptoms or medical conditions. Never disregard professional health care advice or delay in seeking it because of something you have read on the Websites.
Please be aware that we are concerned with the well-being and health of all of our users. However, the Websites are provided only for informational purposes and to provide referral services, and we do NOT provide medical, dental or similar types of assistance or treatment services or similar advice. The Websites are not intended to diagnose, treat, cure or prevent any disease and are not meant to be a substitute for any medical device, medicine, treatment or professional medical advice. The Websites do not replace the relationship between you and your doctor or other medical provider. We are providing the information and referral services only as a courtesy to users of the Websites. You should seek professional care and advice in making decisions relating to your physical or mental well-being. Any action you take on the basis of the information provided on the Websites is solely at your own risk. If this is an emergency, call 911 or go to the nearest hospital.
1. General; Your Agreement to these Terms
Welcome to the websites, apps, social media pages, and other online or mobile locations and services owned and operated by or on behalf of SCAN Health Plan New Mexico (the "Websites"). All references to "SHPNM," "we" or "our" in these Terms of Use include SCAN Health Plan New Mexico and/or any other entities that may be affiliated with it, as appropriate based on context, unless otherwise stated. These Terms of Use apply to our interactions with you and all of our products and services.
Please carefully read the following Terms of Use before using the Websites. By accessing, using and/or browsing the Websites, you acknowledge that you have read, understood and agree to be bound by these Terms of Use which form an agreement that is effective as if you had signed it. If at any time you do not agree to these Terms of Use, please do not access, use or browse the Websites or any of their content.
THESE TERMS OF USE DESCRIBE CERTAIN RULES AND PROHIBITIONS THAT APPLY TO YOUR ACCESS TO, USE AND BROWSING OF THE WEBSITES, WHICH ARE SUBJECT TO THE ALL THE TERMS CONTAINED IN THESE TERMS OF USE. BY ACCESSING, USING AND/OR BROWSING ANY OF THE WEBSITES, YOU ARE AGREEING TO THESE TERMS OF USE AND ALL APPLICABLE LAWS AND REGULATIONS. IF YOU DO NOT AGREE WITH THESE TERMS OF USE, YOUR PERMISSION TO ACCESS, USE AND/OR BROWSE THE WEBSITES IS AUTOMATICALLY AND IMMEDIATELY REVOKED. By using the Websites, you also acknowledge and consent to the collection and use of your data in accordance with the SHPNM’s Privacy Policy.
Some Websites or areas of the Websites, such as specific sections offering features and functionality for caregivers, providers, agents or brokers, may be subject to additional terms and conditions that will be specified in those Websites or sections (“Additional Terms”). To the extent there is a conflict between these Terms of Use and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.
2. Updates and Changes
These Terms of Use (or if applicable Additional Terms), in the form posted at the time of your use of the applicable services to which it applies, shall govern such use (including transactions entered during such use). AS THE WEBSITES EVOLVE, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE SERVICES MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE SERVICES UNDER THE TERMS OR ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED. ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE WEBSITES YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE WEBSITES (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE WEBSITES AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE OTHER TERMS FOR YOUR NEW USE AND TRANSACTIONS. Therefore, you should review the posted terms of use and any applicable Additional Terms each time you use the Websites (at least prior to each transaction or submission). The Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. However, these Terms of Use (and any applicable Additional Terms) that applied when you previously used the Websites will continue to apply to such prior use (i.e., changes and additions are prospective only) unless mutually agreed. In the event any notice to you of new, revised or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You should frequently check the home page and the email you associated with your account for notices, and you agree that the means set forth in these Terms of Use are all reasonable manners of providing you with notice. You can reject any new, revised or Additional Terms by discontinuing use of the Websites and related services.
3. Permitted Users
The Websites are directed to persons eighteen (18) years of age or older, and are not directed to persons under eighteen (18) years old. No one under eighteen (18) years of age is allowed to use the Websites.
4. Use of Websites
The Websites contain a variety of: (i) materials and other items relating to SHPNM, and its products and services, and similar items from our licensors and other third parties, including all layout, information, articles, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Websites, and the compilation, assembly and arrangement of the materials of the Websites and any and all copyrightable material (including source and object code); (ii) trademarks, trade dress, logos, trade names, service marks and/or trade identities of various parties, including those of SHPNM (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively, “Material”). The Websites (including past, present and future versions) and the Material are owned or controlled by SHPNM, our licensors and/or certain other third parties. All right, title and interest in and to the Material available via the Websites is the property of SHPNM or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent, and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. SHPNM owns the copyright in the selection, compilation, assembly, arrangement and enhancement of the Material on the Websites. These Terms of Use and any Additional Terms include only narrow, limited grants of rights to Material and to use and access the Websites. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom or otherwise. Any rights not expressly granted by these Terms of Use are reserved by SHPNM and its licensors and other third parties. Any unauthorized use of any Material or the Websites for any purpose is prohibited.
Subject to your strict compliance with these Terms of Use and any Additional Terms, SHPNM grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to: download (temporary storage only), display, view, use, play, and/or print one copy of the Material (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device for your personal, non-commercial use only (a “Device”). The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any Material, and (ii) may be immediately suspended or terminated for any reason, in SHPNM’s sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Material, subject to certain Additional Terms.
You must keep all copyright and other intellectual property or proprietary notices, acknowledgements, credits, marks or logos contained on any Material printed or downloaded, and may not remove, obscure or modify such notices.
You will not use the Websites in violation of any laws, rules or regulations, including, without limitation, those pertaining to the fraud and abuse or anti-kickback provisions of the federal Medicare and Medicaid laws.
5. Trademarks
All Trademarks, domain names, URLs and icons appearing on the Websites, registered or not, are the property of SHPNM or their respective owners. You have no right or license to use any of the Trademarks, domain names, URLs and icons that appear on the Websites, other than in dealings with SHPNM, without the express written permission of SHPNM or the applicable owner. Unauthorized use may violate trademark and other laws. Any third party names or Trademarks referenced on the Websites do not constitute or imply affiliation, endorsement or recommendation by SHPNM, or of SHPNM by the third parties.
6. Links By You to the Websites
We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Websites, so long as: (i) the links only incorporate text, and do not use any Trademarks; (ii) the links and the content on your website do not suggest any affiliation with SHPNM or cause any other confusion; and (iii) the links and the content on your website do not portray SHPNM or its products or services in a false, misleading, derogatory or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing or abusive, or that violate any right of any third party or are otherwise objectionable to SHPNM. SHPNM reserves the right to suspend or prohibit linking to the Websites for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
7. Links and Linking Policy
The Websites may display or link to content that SHPNM does not own or control, which is provided solely as a convenience to you. These linked websites are operated by third parties and the links, content, products and/or services provided thereon are the sole responsibility of the entity that owns and operates them. You should review the privacy policy and any terms of use of each third party website you visit. Your use of the linked websites is at your own risk. Unless specified otherwise, links to third party websites do not constitute or imply responsibility for or endorsement by SHPNM of those websites, the information they contain or any products or services they describe. SHPNM does not receive payment or other remuneration in exchange for your clicking on a link. SHPNM may revoke its permission for any link at any time.
8. Passwords and Accounts
Certain sections and/or features of the Websites may require you to create an online account in order to access information or features of the Websites. To do so, you may be asked to confirm your agreement to these Terms of Use and your consent to the Privacy Policy, and to enter your information such as first and last name, date of birth, SHPNM member ID and email address. In addition, you may be asked to create a password and username, and to answer security questions or provide other information to protect the security of your account ("Account Details"). Your Account Details are the property of SHPNM and will be used by SHPNM to administer your account.
You are solely responsible for controlling your Account Details, for maintaining their confidentiality, and for authorizing, monitoring and controlling access to and use of your account, whether by you or others. You are prohibited from distributing, providing or otherwise making available your Account Details to any third party and are responsible for all activities that occur under your account. If you register for any feature that requires a password and/or username, then you will select your own password at the time of registration (or we may send you an email notification with a randomly generated initial password) and you agree that: (i) You will not use a username (or email address) that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive. We may reject the use of any password, username or email address for any other reason in our sole discretion; (ii) You will provide true, accurate, current and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete; (iii) You are solely responsible for all activities that occur under your account, password and username—whether or not you authorized the activity; (iv) You are solely responsible for maintaining the confidentiality of your password and for restricting access to your Device so that others may not access any password protected portion of the Websites using your name, username or password; (v) You will immediately notify us of any unauthorized use of your account, password or username or any other breach of security; and (vi) You will not sell, transfer or assign your account or any account rights. We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations. If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete or violates these Terms of Use, any Additional Terms, or any applicable law, then we may suspend or terminate your account. We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits—all in our sole discretion, for any reason and without advance notice or liability. You are responsible for all activity on your account. If you violate our policies we may terminate your account. Don’t do anything illegal, abusive towards others, or that abuses our Websites in a technical way.
You agree to log out of your account at the end of each session, and to notify webmaster@scanhealthplan.com immediately of any unauthorized use of your account or of any need to deactivate your account. You authorize SHPNM to act on the instructions received through use of your Account Details, and acknowledge and agree that SHPNM is not liable for any loss or damage arising from your failure to comply with this Section.
9. User Conduct
You agree that, in using the Websites: (i) you will not monitor, gather, copy or distribute the Material (except as may be a result of standard search engine activity or use of a standard browser) on the Websites by using any robot, rover, “bot,” spider, scraper, crawler, spyware, engine, device, software, extraction tool or any other automatic device, utility or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Material (including any images, text or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Material; (iv) you will not use such Material in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Material; (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Material in any way for any purpose except as specifically permitted by these Terms of Use or any Additional Terms or with the prior written consent of an officer of SHPNM or, in the case of Material from a licensor, the owner of the Material; and (vii) you will not insert any code or product to manipulate such Material in any way that adversely affects any user experience.
You also agree not to engage in any of the following activities in connection with your use of the Websites:
(a) circumventing, modifying or interfering with; attempting to circumvent, modify or interfere with; or encouraging or assisting any other person in circumventing, modifying or interfering with any security measures, technology or software that is part of the Websites;
(b) any activity that involves the use of software viruses, worms, spyware or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or otherwise permit the unauthorized use of or access to a computer or a computer network;
(c) any automated use of the Websites;
(d) damaging, disabling, disrupting, overburdening or impairing the Website or interfering with any other party’s use and enjoyment of the Websites;
(e) taking any steps to interfere with, or in any manner compromise, any security measures employed by the Websites;
(f) engaging in the practices of “screen scraping,” “database scraping” or any other activity with the purpose of obtaining information from the Websites; or
(g) attempting to decompile, reverse engineer, disassemble or hack the Websites or defeat or overcome any encryption and/or digital rights management technology implemented with respect to the Websites.
SHPNM reserves the right to investigate and take appropriate legal action against anyone who, in SHPNM’s sole discretion, violates this Section, including, without limitation, reporting a user to law enforcement authorities and terminating or suspending a user’s right to use the Websites.
10. User Submissions
The Websites may have facilities that allow you and others to post, share, email, transmit or otherwise make available submissions via a Website to communicate with SHPNM and other users. You understand that your submission of any text, photos, videos, graphics, survey responses, views, links, feedback or other information or materials and the ideas contained therein (collectively, “User Submissions”) to the Websites may be or become available to others. You agree to post and send only materials and messages that are appropriate and related to the discussion or purpose of the Website and in compliance with these Terms of Use or other applicable terms. You, and not SHPNM, are responsible for compliance with all terms, policies, laws, regulations and ordinances in connection with your use of the Websites.
A Website user who submits any User Submission is solely responsible for that User Submission. Disclosure, use of or reliance on User Submissions by others is entirely at your own risk. SHPNM does not endorse or verify any User Submission, and is not liable in any way for any User Submission. SHPNM may but has no obligation to pre-screen User Submissions, and may refuse, edit, modify, delete and/or move any User Submission in its sole discretion. SHPNM is not liable in any way for such removal. By using the Websites, you may be exposed to User Submissions that are inaccurate or that you find offensive or objectionable. You agree that you will not rely on any User Submission and that you bear all risks from exposure to or use of any User Submission. By making any User Submission, you represent and warrant that (i) your User Submission is truthful and is your own original work; (ii) you own all right, title and interest in your User Submission, including copyrights; (iii) you and any other person mentioned or shown in your User Submission are 18 years old or older, and you, they, and your and their representatives, agents, heirs, executors and assigns, grant SHPNM the rights described hereunder, and release all claims concerning SHPNM’s or its designees’ use, modification or distribution of the User Submission; (iv) your User Submission does not violate any applicable laws or regulations, or the terms or rules of any platform, does not include any confidential or private information of any third party, and does not infringe or violate any other person's or entity's rights (and you have all the necessary rights, licenses, permissions, clearances and consents needed from third parties in order for you to submit your User Submission); (v) your User Submission does not contain any automated devices, bots, viruses, scripts, or any similar software, or any commercial or marketing material. You further represent and warrant that you have not been and will not be paid or compensated by anyone else for posting your User Submission, and no third party agent, manager or anyone else is entitled to be paid or compensated as a result of your User Submission. By making any User Submission, you grant the SHPNM Parties (defined in Section 17 below) an irrevocable, assignable, sub-licensable, worldwide, royalty-free, fully paid-up, non-exclusive license, in their sole discretion, to use, distribute, reproduce, modify, combine, adapt, publish, translate, rent, lease, sell, publicly perform and publicly display your User Submission, along with your name or username or a fictitious name and place of residence, caption, text, tags, or any part thereof, in SHPNM’s discretion, and to use or incorporate the User Submission into other advertising, promotion, research, analysis or other materials in any format or medium now known or later developed. You hereby waive any right to inspect such use and any claims based on privacy, publicity, defamation, misappropriation, intellectual property or other claims for any use of User Submission. On behalf of yourself and your representatives, agents, heirs, executors, administrators and assigns, you hereby release the SHPNM Parties from and against all claims, damages, losses, injuries, death or liability of any kind arising from or relating, in whole or in part, directly or indirectly, to your User Submissions or its use pursuant to these Terms. You acknowledge that you are familiar with the provisions of California Civil Code § 1542, which provides as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” Being aware of said code section, you hereby expressly waive any rights you may have thereunder, as well as any other statute or common law principles of similar effect.
In your communications with SHPNM, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, designs, websites, apps, books, scripts, software or otherwise (collectively, “Unsolicited Ideas and Materials”). Any Unsolicited Ideas and Materials you post on or send to us via the Websites are deemed User Submissions and licensed to us as set forth above. In addition, SHPNM retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. SHPNM’s receipt of your Unsolicited Ideas and Materials is not an admission by SHPNM of their novelty, priority or originality, and it does not impair SHPNM’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
11. Caregiver Access
SHPNM allows you to authorize a designated adult caregiver to become an authorized user of your online account or to have a legal guardian (each, a "Caregiver"). To designate a Caregiver, you may be asked to provide certain information regarding such individual, such as the first and last name of the proposed Caregiver, and an email address for the proposed Caregiver. You represent that you have permission from the individual to share information about them with SHPNM for the purpose of designating them as a Caregiver. If you provide the requested information, the individual designated therein will receive an email from SHPNM notifying them of your designation as your Caregiver. SHPNM also may designate an individual as your Caregiver, if such individual is your legal guardian. To create an online account, the Caregiver may be asked to confirm his or her consent to these Terms of Use and Privacy Policy, and to provide certain information, which may include the Account Details and other information specified in Section 10 above. Once the Caregiver successfully creates an online account or gains access to your existing online account, such Caregiver will have the ability to view your member information and other information as it appears on your online account, and to manage certain aspects of your online account. SHPNM reserves the right to qualify, remove or add credentials for Caregivers at any time.
12. Termination
SHPNM may, at its sole discretion, immediately and without notice, suspend or terminate your use or any user's use of the Websites or any portion thereof, including, without limitation, your online account, or block your or any user's access to information available via the Websites, at any time for any reason. You agree that SHPNM shall not be liable to you or any third party for any such suspension or termination.
13. Accuracy of Information
Although SHPNM periodically validates and maintains the Websites, SHPNM makes no guarantees as to their correctness, completeness, or accuracy. The Websites may contain typographical errors, inaccuracies, or other errors or omissions. Unauthorized additions, deletions, or alterations could be made to the Websites by third parties without our knowledge. If you believe that information found on the Websites is inaccurate or unauthorized, please inform us by contacting webmaster@scanhealthplan.com.
14. Privacy and Security
The privacy and security of your protected health information is very important to us. For more information, please review SHPNM's Notice of Privacy Practices to understand SHPNM's practices regarding the privacy and security of your protected health information.
SHPNM also recognizes the importance of protecting information about you that is collected or acquired through the Websites. For more information, please review SHPNM's Privacy Policy, to understand our practices regarding the treatment of information about you that is collected or acquired through the Websites. If you do not consent to the collection of your information in accordance with the Privacy Policy, you are not authorized to use the Websites.
15. Permission for Communications With You
The Websites may offer certain features and services that are available to you via your wireless Device. These features and services may include the ability to access the Websites’ features and upload content to the Website, receive messages from the Website, and download applications to your wireless Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.
You agree that as to the Wireless Features for which you are registered, we may send communications to your wireless Device regarding us or other parties. You give SHPNM permission to transmit email, texts, push notifications or postal mail to you or to telephone you. Unsubscribe instructions are included in each promotional email or text. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Websites for Wireless Features, then you agree to notify us of any changes to your wireless contact information (including phone number) and update your accounts on the Websites to reflect the changes.
- If you receive an email from SHPNM and want to unsubscribe, please let us know by following the applicable instructions that are included in the email you received. Please note that unsubscribe requests for promotional e-mails may take up to ten (10) business days to become effective.
- If you provide a phone number to SHPNM, you agree that you are the authorized user of that number and that you may receive text messages and telephone calls from SHPNM and its associates, including but not limited to artificial or pre-recorded messages, or via an automatic telephone dialing system, even if your phone number is on a Do Not Call Registry. Calls to SHPNM may be recorded and monitored. You are not required to receive text messages or calls from SHPNM as a condition (directly or indirectly) of user of SHPNM services or to use the SHPNM websites.
You may not decline to receive or unsubscribe from communications regarding your transactions, dealings with SHPNM or the Websites, or technical information about the Websites.
16. Disclaimer of Warranties
THE WEBSITES (INCLUDING, WITHOUT LIMITATION, ANY MATERIAL, AND ALL RELATED PRODUCTS AND SERVICES) ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SHPNM AND ITS SUPPLIERS, VENDORS, LICENSORS, AND RELATED PARTIES DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, FREEDOM FROM COMPUTER VIRUS, FREEDOM FROM ERRORS, UNINTERRUPTED AVAILABILITY, NON-INFRINGEMENT, OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. Without limiting the foregoing, you are responsible for taking all necessary precautions to insure that any Material or access to the Websites is free of viruses or other harmful code. The Websites and Material are provided for informational purposes only, for your review and evaluation.
Please note that once you leave the Websites, either by using a link SHPNM may provide or by specifying your own destination, SHPNM accepts no responsibility for the content, products and/or services provided at any third-party locations or websites. SHPNM does not control, endorse, promote or have any affiliation with any other website unless expressly stated on the Websites. You acknowledge and agree that SHPNM shall not be responsible or liable, directly or indirectly, for any damage, loss or other claim caused or alleged to be caused by or in connection with access to, use of or reliance on any content, material or information available on or through any other website or resource.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.
17. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SHPNM OR ITS SUPPLIERS, VENDORS, LICENSORS OR RELATED PARTIES, INCLUDING, WITHOUT LIMITATION, THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE "SHPNM PARTIES"), BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER, RESULTING FROM ANY LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, BUSINESS INTERRUPTION, LITIGATION, OR ANY OTHER PECUNIARY LOSS, WHETHER BASED ON PERSONAL INJURY, BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR ANY OTHER THEORY ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE WEBSITES, THE USE OR PERFORMANCE OF THE WEBSITES, ANY DELAY OR INABILITY TO USE THE WEBSITES, OR THE PROVISION OF OR FAILURE TO MAKE AVAILABLE ANY INFORMATION, SERVICES, PRODUCTS, MATERIAL, OR OTHER RESOURCES CONTAINED ON OR ACCESSIBLE THROUGH THE WEBSITES (EACH OF THE FOREGOING INCLUDING, WITHOUT LIMITATION, ANY MATERIALS AND ALL WEBSITE RELATED PRODUCTS AND SERVICES), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESHPNM PARTIES DISCLAIM ALL SUCH LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OR THE EXISTENCE OF ANY LIMITED REMEDY. THE LIMITATIONS SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THESE TERMS OF USE AND THE WEBSITE WOULD NOT BE PROVIDED TO YOU ABSENT SUCH LIMITATIONS.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if SHPNM were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of our services).
Exclusions and Limitations: Because some jurisdictions do not allow limitations on how long an implied warranty lasts, or the exclusion or limitation of liability for consequential or incidental damages, the above limitations may not apply to you. The Disclaimer and Limitation of Liability shall be to the maximum extent permitted by applicable law.
18. Modifications to this Website
SHPNM reserves the right at any time and from time to time to modify, suspend, or discontinue, temporarily or permanently, the Websites, or any portion thereof, with or without notice. You agree that SHPNM will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Websites.
19. Governing Law and Disputes; Class Action Waiver; Arbitration
PLEASE READ THIS ENTIRE SECTION CAREFULLY, AS YOU ARE WAIVING CERTAIN LEGAL RIGHTS IN THE EVENT OF ANY DISPUTE WITH US AND ARE AGREEING TO BINDING INDIVIDUAL ARBITRATION, AMONG OTHER THINGS.
A. First – Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation or claim arises out of or relates to the Websites, the Material, your User Submissions, these Terms of Use or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of SHPNM’s actual or alleged intellectual property rights (an “Excluded Dispute”), which includes those actions set forth in Section 20(D), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such contact information exists or if such information is not current, then we have no obligation under this Section 20(A). Your notice to us must be sent via certified U.S. mail to: SCAN Health Plan New Mexico [3800 Kilroy Airport Way, Suite 100, Long Beach CA 90806 (Attn: Legal Department – Privacy Officer). The written description included in your notice must be on an individual basis and provide at least the following information: your name; the nature or basis of the claim or dispute; the date of any purchase or transaction at issue (if any and if available), and the relief sought. For a period of sixty (60) days from the date of receipt of notice from the other party, SHPNM and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, through an informal telephonic dispute resolution conference between you and SHPNM in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or SHPNM to resolve the Dispute or Excluded Dispute on terms with respect to which you and SHPNM, in each of our sole discretion, are not comfortable. The informal telephonic dispute resolution conferences shall be individualized such that a separate conference must be held each time either party intends to commence individual arbitration; multiple individuals initiating claims cannot participate in the same informal telephonic dispute resolution conference. If either party is represented by counsel, that party’s counsel may participate in the informal telephonic dispute resolution conference, but the party also must appear at and participate in the conference. This informal dispute resolution process is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding. The parties agree that any relevant limitations period and filing fee or other deadlines will be tolled while the parties engage in this informal dispute resolution process. Certain portions of this Section 20(A) are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and SHPNM agree that we intend that this Section 20(A) satisfies the “writing” requirement of the Federal Arbitration Act (“FAA”).
B. Binding Arbitration. If we cannot resolve a Dispute as set forth in Section 20(A) within sixty (60) days of receipt of the notice, then ANY DISPUTE ARISING BETWEEN YOU AND SHPNM OR ANY OF ITS AGENTS, VENDORS, CONTRACTORS, OR OTHER THIRD PARTY BENEFICIARY OF THESE TERMS (whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, any other intentional tort or negligence), common law, constitutional provision, respondeat superior, agency or any other legal or equitable theory), whether arising before or after the effective date of these Terms, MUST BE RESOLVED BY FINAL AND BINDING INDIVIDUAL ARBITRATION. The FAA, not state law, shall govern the arbitrability of all disputes between SHPNM and you regarding these Terms of Use (and any Additional Terms) and the Websites including the “No Class Action Matters” Section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY. SHPNM and you agree, however, that the applicable state, federal or provincial law, as contemplated in Section 20(J) below, shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and SHPNM regarding these Terms of Use and the Websites, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to any jurisdiction’s choice of law principles. An Excluded Dispute will only be subject to binding arbitration pursuant to this Section 20 if the parties mutually agree. Any Dispute will be resolved solely by binding arbitration in accordance with the then-current: (i) Consumer Arbitration Rules of the American Arbitration Association “AAA”) then in effect since the matter involves a “consumer” agreement as defined by Consumer Arbitration Rule R-1; and if such Consumer Arbitration Rules do not apply then: (ii) the Commercial Arbitration Rules (collectively, “Rules”) of the AAA, except as modified herein, and the arbitration will be administered by the AAA. If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing, then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’s streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of SHPNM consent to in writing.
C. Arbitration Process. If after sixty (60) days the informal dispute resolution procedure set forth in Section 20(A) above is unsuccessful in resolving the parties’ dispute, a party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the Rules. (The AAA provides applicable forms for Demands for Arbitration available at https://www.adr.org/sites/default/files/Demand_for_Arbitration_0.pdf (Commercial Arbitration Rules) and https://www.adr.org/sites/default/files/Consumer_Demand_for_Arbitration_Form_1.pdf (Consumer Arbitration Rules), and a separate affidavit for waiver of fees for California residents only is available at https://adr.org/sites/default/files/Waiver_of_Fees_CA_Only.pdf. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state or county in which you reside. The parties will first attempt to agree on an arbitrator. If the parties are unable to agree upon an arbitrator within twenty-one (21) days of receiving the AAA’s list of eligible neutrals, then the AAA will appoint the arbitrator in accordance with the Rules. The arbitration may be conducted by telephone or based on written submissions, and if an in-person hearing is required, then it will be conducted in the county where you live or at another mutually agreed upon location. You and we will pay the administrative and arbitrator’s fees and other costs (and please note that you will be responsible for a portion or percentage of such fees) in accordance with the requirements of the Rules; but if the Rules (or other applicable arbitration rules or laws) require SHPNM to pay a greater portion or all of such fees and costs in order for this Section 20 to be enforceable, then SHPNM will have the right to elect to pay the fees and costs and proceed to arbitration. Except as set forth in Section 20(D), the arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms of Use and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. The arbitrator will render an award within the time frame specified in the Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the Rules, and these Terms. The arbitrator’s award of damages and/or other relief must be consistent with the terms of the Limitation of Liability Section above as to the types and the amounts of damages or other relief for which a party may be held liable. If a claim is brought seeking public injunctive relief and a court determines that the restrictions prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such claim (and that determination becomes final after all appeals have been exhausted), the claim for public injunctive relief will be determined in court and any individual claims will be arbitrated. In such a case, the court shall stay the claim for public injunctive relief until the arbitration pertaining to individual relief has been entered in court. In no event will a claim for public injunctive relief be arbitrated. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide. Attorneys’ fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration. If the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), SHPNM will have the right to recover its attorneys’ fees and expenses. This arbitration provision shall survive termination of these Terms of Use or the Websites. You can obtain AAA and JAMS procedures, rules, and fee information as follows: AAA: 800.778.7879 and http://www.adr.org and JAMS: 800.352.5267 and http://www.jamsadr.com.
D. Special Additional Procedures for Mass Arbitration. If twenty-five (25) or more similar claims are asserted against SHPNM by the same or coordinated counsel or are otherwise coordinated, you understand and agree that the resolution of your Dispute might be delayed. You also agree to the following coordinated bellwether process and application of the AAA Multiple Consumer Case Filing Fee Schedule. Counsel for the claimants and counsel for SHPNM shall each select five (5) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process; the parties may but are not required to agree in writing to modify the number of cases to be included in the bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings pursuant to this provision. In the bellwether process, a single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator during the bellwether process unless the parties agree otherwise. After decisions have been rendered in the first ten (10) cases, SHPNM and all claimants shall engage in a global mediation in an attempt to resolve the remaining cases with the benefit of the decisions in the bellwether cases. If the parties are unable to resolve the remaining cases after the mediation, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process. After decisions have been rendered in the second group of twenty (20) cases, SHPNM and all claimants shall engage in a second global mediation in an attempt to resolve the remaining cases with the benefit of the decisions in the decided bellwether cases; if a global settlement cannot be reached in the second mediation, the parties also may discuss with the mediator the process for resolving the remaining cases with the benefit of the decisions in the first two (2) rounds of bellwether cases; the parties are not required to agree to any modifications to the process set forth herein. Absent a settlement or agreement to modify the procedure for arbitrating the remaining cases, in order to increase the efficiency of administration and resolution of arbitrations, the arbitration provider shall: (i) administer the arbitration demands in batches of fifty (50) demands per batch (to the extent there are fewer than fifty (50) arbitration demands left over after the batching described above, a final batch will consist of the remaining demands); (ii) designate one (1) arbitrator for each batch; and (iii) provide for a single filing fee due per side per batch. You agree to cooperate in good faith with SHPNM and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of single filing and administrative fees for batches of claims. This “batch arbitration” provision shall in no way be interpreted as authorizing class arbitration of any kind. SHPNM does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this Section 20(D). The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this Section 20(D) from the time of the first cases are selected for a bellwether process until the time your case is selected to proceed, withdrawn, or otherwise resolved. A court shall have authority to enforce this Section 20(D) and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against SHPNM.
E. Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 20(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES—OR IT WILL BE FOREVER BARRED. Commencing means, as applicable: (a) by delivery of written notice as set forth above in Section 20(A); (b) filing for arbitration with JAMS as set forth in Section 20(B); or (c) filing an action in state or federal court. The parties expressly waive any contrary statute of limitations or time bars, both legal and equitable, to the Disputes.
F. Injunctive Relief. The foregoing provisions of this Section 20 will not apply to any legal action taken by SHPNM to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Websites, the Material, your User Submissions, these Terms of Use and/or SHPNM’s intellectual property rights (including such SHPNM may claim that may be in dispute), SHPNM’s operations, and/or SHPNM’s products or services.
G. No Class Action Matters. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. Except as expressly contemplated for mass arbitrations set forth in Section 20(D), Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 20(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 20(H). Notwithstanding any other provision of this Section 20, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions. Notwithstanding any other provision of these Terms of Use, if the foregoing class action waiver and prohibition against class arbitration is determined to be invalid or unenforceable, then this entire arbitration agreement shall be void. If any portion of this arbitration agreement other than the class action waiver and prohibition against class arbitration is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this arbitration agreement.
H. Federal and State Courts in Los Angeles County, California. Except where arbitration is required above, small claims actions, or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in state or federal court in Los Angeles County, California. Accordingly, you and SHPNM consent to the exclusive personal jurisdiction and venue of such courts for such matters.
I. Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court on an individual basis for disputes and actions within the scope of such court’s competent jurisdiction.
J. Governing Law. These Terms of Use and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of California, without regard to its conflicts of law provisions.
20. Force Majeure
SHPNM shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control or unforeseen circumstances such as acts of nature or God, fire, flood, earthquake, accidents, strikes, war, terrorism, governmental act, failure of or interruption in common carriers (including, without limitation, Internet service providers and web hosting providers) or utilities, or shortages of transportation facilities, fuel, energy, labor or materials.
21. General Provisions
A. Indemnity. You agree to, and you hereby, defend, indemnify and hold SHPNM Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any SHPNM Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User Submissions; (ii) your use of the Websites and your activities in connection with the Websites; (iii) your breach or alleged breach of these Terms of Use or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Websites or your activities in connection with the Websites; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy or other right of any person or entity; (vi) any misrepresentation made by you; (vii) any other party’s access and/or use of the Websites with your account; and (viii) SHPNM Parties’ use of the information or content that you submit to us (including your User Submissions) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by SHPNM Parties in the defense of any Claims and Losses. Notwithstanding the foregoing, SHPNM Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. SHPNM Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a SHPNM Party.
B. Miscellaneous. These Terms of Use and Privacy Policy set forth the entire understanding and agreement between you and SHPNM with respect to the subject matter hereof. If any provision of these Terms of Use or Privacy Policy 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 the other provisions of these Terms of Use or Privacy Policy shall remain in full force and effect. Headings are for reference only and in no way define, limit, construe or describe the scope or extent of such section. SHPNM's failure to act with respect to any failure by you or others to comply with these Terms of Use or Privacy Policy does not waive its right to act with respect to subsequent or similar failures. You may not assign or transfer these Terms of Use or Privacy Policy or your rights or obligations under these Terms of Use or Privacy Policy without the prior written consent of SHPNM, and any assignment or transfer in violation of this provision shall be null and void. There are no third party beneficiaries to these Terms of Use or Privacy Policy. The Websites are controlled within the United States of America and directed to individuals residing in the United States. Those who choose to access the Websites from locations outside of the United States do so on their own initiative, and are responsible for compliance with local laws if and to the extent local laws are applicable. SHPNM does not represent that the Websites or Material are appropriate outside the United States of America. SHPNM reserves the right to limit the availability of the Websites to any person, geographic area or jurisdiction at any time in its sole discretion.
22. Questions?
Please direct any questions you may have about these Terms of Use, technical questions or problems with the Websites, or comments or suggestions to SHPNM at webmaster@scanhealthplan.com.
