MEDINEXO USA SERVICES AGREEMENT
This Services Agreement (“Medinexo Service Agreement”), governs use of the services provided by Medinexo USA, LLC (“Medinexo”) through Medinexo’s Technology Platform (“Medinexo Services”) by the individual or legal entity agreeing to these terms, typically, but not always, a provider of healthcare services, hereinafter referred to as “Member.” The Medinexo Service Agreement is effective as off the date that Medinexo makes the Medinexo Services Account available to MEMBER (the “Effective Date”).
WHEREAS, Medinexo owns and operates a cloud-based Technology Platform (the “Medinexo Platform”) offering “Medinexo Services” (defined below) to facilitate connections between MEMBERs for the provision of professional advise services (“Professional Services”); and
WHEREAS, MEMBER desires to utilize the Medinexo Services to provide or to receive services to or from other MEMBERs, and Medinexo desires to offer the Technology Services to MEMBER.
WHEREAS, MEMBER is an individual or represents a legal entity based in the United States of America.
NOW, THEREFORE, in consideration of these promises and other consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
- Technology Services. Medinexo will provide the Technology Services set forth on Exhibit A, as the same may be amended from time to time. Acceptance of this agreement also constitutes acceptance of the Terms and Conditions for the use of the Medinexo Technology Platform (Exhibit B ).
2.1 As between the Parties, MEMBER shall at all times be solely responsible for any and all actions or decisions involving patient care or patient care management, including all medical diagnosis and treatment decisions. Nothing in this Agreement shall be interpreted to mean that Medinexo is a provider of medical or healthcare services or equipment.
2.2 MEMBER will be solely responsible for submission of all claims associated with the Professional Virtual Care Services to third-party payers, patients and/or other MEMBERs, as applicable, in compliance with all applicable billing and reimbursement laws, regulations and guidelines.
2.3 MEMBER shall be solely responsible for the requisite connectivity and equipment necessary to receive or to provide the Professional Services, which equipment shall be the exclusive property of, and be securely maintained by, MEMBER.
- Compensation. MEMBER will pay Medinexo fees for Medinexo Services using Virtual Care Units (“VCUs”). A Virtual Care Unit is a unit of service as it is defined by Medinexo. MEMBERs use VCUs when they use Medinexo Services. MEMBERs can earn VCUs when they offer services to other MEMBERs if the other MEMBER is willing to pay VCUs for the services provided by the offering MEMBER. MEMBERs can buy VCUs by online purchase using their credit or debit card at www.medinexo.com. MEMBER shall maintain a positive balance of VCUs in MEMBER’s account. If MEMBER’s account VCUs balance is negative, Medinexo Services may be interrupted, at the sole discretion of Medinexo. MEMBERs can cash the balance of VCUs shown in the MEMBERs VCU Balance as “VCU Cash.” When a request is made by MEMBER to cash VCUs, Medinexo will pay MEMBER the equivalent of the VCU Cash minus money transfer fees payable to follow payment instructions from member and Medinexo VCU Cash Fees as listed in Exhibit A. All VCUs Cashed will be payable as requested. All fees will be exclusive of taxes, duties and the like, which will be paid by MEMBER. Medinexo shall have the right, in its sole discretion, to offset any payments collected or received from any third party on behalf of MEMBER, against any and all amounts due and owing to Medinexo under this Agreement. Medinexo reserves the right to increase its fees set forth on Exhibit A during any Term upon 30 days advance written notice to MEMBER, provided that any such increase in fees shall entitle MEMBER the right to terminate this Agreement without penalty at any time during such 30-day period.
- Term. The term (the “Term”) of this Agreement shall commence on the Effective Date hereof and shall continue unless either Party provides written notice of termination to the other Party at least 30 days prior to the end of the then-current term.
- Termination. Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party is in material breach of any representation, warranty, covenant, term or condition of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching Party. In addition, either Party may terminate this Agreement immediately upon the dissolution, liquidation, or bankruptcy of the other Party or the institution of any proceeding against the other Party under the provisions of any insolvency or bankruptcy law.
- Effect of Termination. Upon expiration or termination of this Agreement, MEMBER shall (i) promptly return to Medinexo, or destroy all Confidential Information of Medinexo and certify to Medinexo that it has done so and (ii) promptly pay to Medinexo any outstanding amounts owed hereunder. The following Sections will survive termination of this Agreement: 1,2,3, 5, 6, 7, 8, 9, 10, 11, 12.3 and 12.9.
- MEMBER, and its associated providers, agrees to retain in confidence the terms of this Agreement and all information, data, technology, materials and know-how of Medinexo that is disclosed to or acquired by MEMBER pursuant to or in connection with this Agreement (“Confidential Information”). Confidential Information shall not include any information that is in the public domain.
- If Confidential Information is subject to disclosure pursuant to applicable law, regulation, or any governmental, judicial or administrative process (“Law”) requiring MEMBER to disclose any Confidential Information, MEMBER shall promptly notify Medinexo (except as prohibited by Law) so that Medinexo may seek to avoid or minimize the required disclosure and/or to obtain an appropriate protective order or other appropriate relief to ensure that any Confidential Information so disclosed is maintained in confidence by the person or entity receiving the disclosure. If, in the absence of a protective order, MEMBER is compelled to disclose the Confidential Information, MEMBER shall disclose only so much of the Confidential Information to the person or entity compelling disclosure as it believes in good faith is required.
- At any time upon Medinexo’s written request, MEMBER will return or destroy all documents and other materials in its control that contain Confidential Information.
- [Section 5.4 applies only to U.S. customers.] MEMBER acknowledges that MEMBER may have access to confidential patient protected health information (“PHI”) in connection with the receipt of Professional Virtual Care Services. MEMBER agrees that it (a) will protect and safeguard from disclosure all PHI regardless of the type of media on which it is stored with which it may come into contact; and (b) will use appropriate technical, physical and administrative safeguards to protect the security of PHI; and (c) will comply with all applicable laws and regulations relating to the use and disclosure of PHI, specifically including the privacy and security standards of the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act, and any regulations adopted under those laws by the United States Department of Health and Human Services, as those regulations may be amended from time to time. MEMBER recognizes that any breach of confidentiality or misuse of PHI may result in the termination of this Agreement and/or legal action.
- MEMBER represents and warrants that: (i) MEMBER has full power and authority to enter into this Agreement and to perform its obligations under this Agreement; (ii) this Agreement is a legal and valid obligation binding upon MEMBER and enforceable in accordance with its terms; and (iii) this Agreement will not conflict with, result in a breach of, or constitute a default under any other agreement to which MEMBER is a Party or by which MEMBER is bound.
- MEMBER represents and warrants that MEMBER, and / or its associated providers, maintains an unrestricted license to practice the healthcare profession claimed by MEMBER to Medinexo and Medinexo’s MEMBERs in the Country and State of MEMBER’s residence and in each Country and State in which the MEMBER may render Professional Services to patients.
- MEMBER represents and warrants that MEMBER, and / or its associated providers, maintains in good standing all applicable narcotics and controlled substances numbers and licenses as required by federal, state, or local laws and regulations.
- MEMBER represents and warrants that MEMBER, and / or its associated providers, has never been convicted of a felony or a crime involving fraud or moral turpitude.
- [Section 6.5 applies only to U.S. customers.] MEMBER represents and warrants that MEMBER, and / or its associated providers, is not and has never been listed as an excluded party on the Office of Inspector General’s List of Excluded Individuals and Entities (“LEIE”) and is not and has never been suspended or excluded from participation in any federal health care programs, as defined under 42 U.S.C. § 1320a-7b(f), or any form of state Medicaid program (collectively, “Government Payor Programs”), and to MEMBER’s knowledge, there are no pending or threatened governmental investigations that may lead to such suspension or exclusion from any Government Payor Programs or may be cause for listing on LEIE (collectively, an “Investigation”). MEMBER agrees to notify Medinexo of the commencement of any Investigation by or suspension or exclusion from any Government Payor Programs within three (3) business days of MEMBER’s first learning of it and Medinexo shall have the right to immediately terminate this Agreement upon learning of any suspension or exclusion, or if in its sole discretion, Medinexo believes that such Investigation may lead to suspension or exclusion from any Government Payor Programs. MEMBER shall indemnify and hold harmless Medinexo against all actions, claims, demands and liabilities, and against all loss, damage, costs and expenses, including reasonable attorneys’ fees, arising directly or indirectly out of any violation of this Section 6.4 by MEMBER.
- [Section 7 applies only to U.S. customers.] Patient Referrals: No portion of this Agreement shall include or encourage the referral of patients for healthcare services. The Parties understand and agree that they are entering into this Agreement (and to any subsequent agreements) as part of an arms-length transaction and that under no circumstances is the referral of patients a precondition to the execution or consummation of this Agreement (or any subsequent agreements). No payment under this Agreement as set forth in Exhibit A shall be in return for the referral or anticipated referral of patients, or in return for the purchasing or order any products or services.
- Intellectual Property. Medinexo exclusively owns and shall retain all rights, title, intellectual property, and any other legal interest in and to the Medinexo Platform, and all other related software, applications, work product and materials (collectively, the “Medinexo Software”), made available to MEMBER in connection with the provision of Technology Services. MEMBER may not attempt to sell, sublicense, lease, permit, rent or transfer the Medinexo Software in any way whatsoever. MEMBER agrees that it will not at any time modify, enhance, decompile, disassemble, or reverse engineer the Medinexo Software to develop functionally similar software or permit any third party to do any of the foregoing. MEMBER agrees not to allow any third party to use the Medinexo Software for any purpose without the prior written consent of Medinexo.
- Indemnification. MEMBER agrees to indemnify and hold Medinexo and its owners, officers, directors, employees, affiliates and agents (each an “Indemnified Medinexo Party”) harmless from any and all damages, losses, costs or expenses (including without limitation, attorney’s fees and costs) incurred in connection with any third party claim, demand or action brought or asserted against any of the Indemnified Medinexo Parties: (i) alleging facts or circumstances that would constitute a breach by MEMBER of any provision of this Agreement; (ii) arising from or related to MEMBER’s use of the Medinexo Platform; and (iii) arising from or related to MEMBER’s provision of medical care, including MEMBER’s medical negligence or lack of professional judgment.
- IN NO EVENT SHALL MEDINEXO BE LIABLE TO MEMBER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
- IN NO EVENT SHALL MEDINEXO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS ACTUALLY PAID BY MEMBER TO MEDINEXO PURSUANT TO THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Insurance. MEMBER, and / or its associated providers, agrees to carry, during the term of this Agreement, a professional liability insurance policy with a minimum coverage amount, as required to provide any services offered or delivered by the MEMBER, and / or its associated providers, over the Medinexo Network, in the MEMBER’s Governing Law Jurisdiction. In the event of the termination of this Agreement for whatever reason, and solely if such policy is a “claims made” policy, MEMBER, and / or its associated providers, will purchase “tail” coverage to continue MEMBER’s then applicable professional liability insurance coverage for any acts or omissions of MEMBER during the term of this Agreement.
- Integration; Amendment. This Agreement (including the exhibits hereto) represents the entire Agreement between the Parties regarding the subject matter hereof, which they have equally bargained for, and it supersedes all prior negotiations, writings and agreements regarding such subject matter. Any modifications of the Agreement must be in writing and signed by both Parties.
- Assignment; Waiver. MEMBER may not assign, sublicense, or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of Medinexo. Any transfer in violation of the preceding sentence shall be null and void. This Agreement will be binding upon the Parties and their successors and permitted assigns. No waiver of any term or condition of this Agreement, or of any breach of this Agreement or of any part thereof, will be deemed a waiver of any other term or condition of the Agreement or of any later breach of the Agreement or of any part thereof.
- Governing Law; Jurisdiction. This Agreement will be construed and interpreted according to the laws of the State of Missouri, without regard to conflict of law principles. Any dispute between the Parties shall be adjudicated and addressed in the civil courts of St. Louis County, Missouri.
- Interpretation. The headings in the Agreement are for reference only and do not affect the interpretation of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will not be affected and will continue in full force and effect.
- Notices. All notices, requests and communications required or permitted under this Agreement shall be in writing and be sufficiently given and deemed to have been received upon personal delivery or delivery by overnight courier or certified mail addressed to the Parties at the addresses set forth in the preamble hereof. Notice of a change in address shall be given in writing to the other Party and shall be effective upon receipt.
Medinexo: Medinexo USA, LLC
7733 Forsyth Boulevard, Suite 1100
Saint Louis, MO 63105
Attention: Jorge Toro, President
MEMBER: Address of Record
- Force Majeure. Any delay or failure of either Party to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such Party’s control.
- Further Action. Each of the Parties hereby agrees to take or cause to be taken such further actions, to execute, acknowledge, deliver and file or cause to be executed, acknowledged, delivered and filed such further documents and instruments, and to use commercially reasonable efforts to obtain such consents, as may be necessary or as may be reasonably requested in order to fully effectuate the purposes, terms and conditions of this Agreement.
- No Exclusivity. The Parties agree that this Agreement is of a non-exclusive nature and each Party is permitted to contract with any third party for the same or similar services.
- Non-Circumvention. MEMBER hereby agrees that it will not, directly or indirectly, contact, solicit, contract with or otherwise become involved with any other MEMBER or other entity or parties introduced, directly or indirectly, by Medinexo or via the Medinexo Platform regarding any (a) Virtual Care Services, or (b) any transaction related to the subject matter of this Agreement, for the purpose of avoiding payment to Medinexo or otherwise, without the specific prior written approval of Medinexo. Notwithstanding the foregoing, MEMBER shall not be in breach of this Section 12.9 if MEMBER pays Medinexo in full for all fees due under this Agreement for any activity of MEMBER that would otherwise constitute a violation of this Section 12.9.
- Independent Contractor Relationship; Counterparts. No Party is an employee or agent of the other. The Parties are independent contractors and nothing under this Agreement is intended nor shall be construed to create between MEMBER and Medinexo an employer/employee relationship, a joint venture relationship, or to allow Medinexo to exercise control or direction over the manner or method by which MEMBER receives Virtual Care Services that are the subject matter of this Agreement. This Agreement may be executed electronically and in counterparts, each of which taken together shall constitute one agreement between the Parties.
If MEMBER desires to utilize any other service or products provided by Medinexo, MEMBER may be required to enter a separate written agreement or click “accept” or “agree” to become a party to another contract with Medinexo (“Separate Agreement”), and this agreement shall not be considered to supersede the specific terms of the Separate Agreement.
Technology Services; Compensation
Medinexo shall provide the following Technology Services to MEMBER:
- List and register MEMBERs on the Medinexo Platform
- Connect MEMBERs for Professional Collaboration and exchange of services
- Provide access to communication tools to facilitate the delivery of Professional Healthcare Services
- Provide other services mutually-agreed upon between Medinexo and MEMBER
- Virtual Care Unit (from here on “VCU”): A unit of Virtual Care Services as defined by Medinexo.
- Virtual Care Unit Price (VCU Price): The price in local currency at which Medinexo sells a VCU.
- Setup: Setup User access, profile and features for an individual user of the Medinexo platform.
- MEMBER’s VCU Balance: The number of VCUs currently available to the MEMBER to pay for Services provided by Medinexo or by another MEMBER.
- VCU Purchase: A pre-paid (or advanced) purchase of VCUs to enable services delivered by Medinexo. The purchase of VCUs will results in adding the VCUs purchased to the MEMBER’s VCU Balance.
- Monthly Service Fees: Any pre-approved monthly services agreed upon between the parties to this agreement.
- MEMBER Service Fees: A MEMBER can offer services over the Medinexo Platform to another MEMBER (from here on “Buyer”) using Medinexo’s platform. In the event that Medinexo is collecting from the Buyer, the VCU payment to the MEMBER, Medinexo will pay MEMBER upon collection from Buyer, the fees for services agreed upon by the MEMBER and the Buyer using the Medinexo platform.
- Transactions: The use of Text Messages, Loading Documents, Videos, Photos, Dictations, holding Video Conferences, offering inter-consultation services and other forms of information exchange over the Medinexo Platform
- Transaction Fees: VCU Fees charged by Medinexo for designated transactions taking place over the Medinexo Platform.
- Transaction Rates: Rates charged by Medinexo for each type of Transaction or Service provided by Medinexo, as published in the “VCU Balance” section of the Medinexo Portal.
MEDINEXO® TECHNOLOGY PLATFORM
END USER LICENSE AND TERMS OF SERVICE
This End User License Agreement and Terms of Service, and the documents referenced herein (all collectively referred to as the “Terms,” or “Agreement,” or “License”), are expressly incorporated into and made a part of one or more Subscription Software License Agreement(s) executed during the Term, and shall apply to Customer’s purchase of goods or services from Medinexo USA, LLC (“Medinexo”, “us”, “we”) as set forth in the Agreement. No confirming orders or other documentation, written or oral, by Customer, shall modify, alter or change the express written terms of this Agreement. Medinexo’s performance of any Services outlined in the Agreement shall not constitute acceptance of such additional or different terms.
- The Medinexo® Technology Platform and Services accompanying this Agreement are licensed, not sold, by Medinexo to the Customer, for use strictly in accordance with the terms and conditions of this Agreement and the applicable usage rules established by any third party mobile device platform or service provider or the third party from whom the Customer is using the Medinexo® online platform or downloading the Mobile Application (as defined in section 1.2) that relate to the Customer Mobile Device (as defined in section 2.1) (“Usage Rules“), which are incorporated herein by reference.
- The term “Medinexo® Mobile Application and Services” (collectively, the “Services“) shall refer to and consist of the following: (i) the Medinexo® mobile software application (the “Mobile Application” accompanying this License), together with various other related Medinexo® services and certain third-party integrated mobile device software applications, together with any software code, scripts, interfaces, graphics, displays, text, documentation and other components; (ii) any updates, modifications or enhancements to the items listed in subsection (i); and (iii) any of the Internet-based, interactive information services, general and personalized content, and interactive tools provided by Medinexo that may be used or accessible by means of online browser or by the Mobile Application accompanying this License.
- As part of the Services, we use a diverse range of proprietary and authorized third party information, listings, directories, text, and User Generated Content (as defined herein and other material (which we collectively call the “Material“) available by means of the Services. Accordingly, the Customer may view, use, copy, and distribute the Material obtained by means in compliance with this License and all applicable laws.
- LICENSE GRANT AND RESTRICTIONS ON USE.
- Medinexo grants the Customer a non-exclusive, limited right to use the online platform or Mobile Application on mobile devices owned or operated by the Customer or a mobile device owned or operated by a direct client of the Customer (each a Customer “End User” with a “Customer Mobile Device“), and to access and use the Services on such Customer Mobile Devices strictly in accordance with the terms and conditions of this License and the applicable Usage Rules during the Term.
- The Customer shall not: (i) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Mobile Application; (ii) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Mobile Application; (iii) violate any applicable laws, rules or regulations in connection with the Customer access or use of the Services. The Customer agrees not to copy, reproduce, alter, modify, create derivative works from, rent, lease, loan, sell, distribute or publicly display any of the Material (except for the Customer’s non-commercial use) accessed by the Services without the prior written consent of Medinexo.
- Some or all of the Services may be provided by an affiliate or subsidiary of Medinexo or a third party, and the Customer may be subject to both this License and the terms of service of that third party. Certain portions of the Services may utilize or include third party software that is subject to open source and/or third party license terms (“Third Party Software“). In such event, Customer may obtain any applicable license for Third Party Software to the extent such terms are not already included herein. The Customer acknowledges and agrees that the Customer’s right to use such Third Party Software as part of, or in connection with, theonline platform or the Mobile Application is subject to and governed by the terms and conditions of the open source or third party license applicable to such Third Party Software.
- The Services have been designed to operate on standard mobile devices, as outlined in a device compatibility list which may be updated from time to time and which can be provided to the Customer upon request. Medinexo does not warrant that the Services will be compatible or interoperable with the Customer Computer or Mobile Device or any other piece of hardware, software, equipment or device installed on or used in connection with the Customer Mobile Device. The Customer acknowledges and agrees that Medinexo and its affiliates, partners, suppliers and licensors shall have no liability to the Customer for any losses suffered resulting from or arising in connection with compatibility or interoperability problems. Medinexo formally tests mobile device environments referenced within its device compatibility list and uses commercially reasonable efforts to verify compatibility and interoperability within these environments.
- The Customer may not use or otherwise export or re-export the Services except as authorized by US law and/or the laws of the jurisdiction(s) in which any Services were obtained. The Customer represents and warrants that the Customer is not (i) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist sponsoring” country, or (ii) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. The Customer also agrees that the Customer will not use the Services for any purposes prohibited by United States or local laws.
- The Customer acknowledges that Medinexo may from time to time change, expand and/or improve the Services, and may automatically electronically upgrade the version of the online platform or the Mobile Application that the Customer is using on the Customer Mobile Device. The Customer consents to such automatic upgrading on the Customer Mobile Device, and agrees that this License will apply to all such upgrades. The Customer recognizes that Medinexo may at its discretion require a minimum version of installed software to provide support for Medinexo operating on Customer Mobile Devices.
- The Customer is responsible for providing and administering usernames and passwords for all End Users (the “Log-In Information”) with each having a valid username and strong password which shall be enforced by the Customer. Customer agrees to notify Medinexo immediately of any unauthorized use of Customers End Users’ accounts or any other breach of security. Medinexo will not be liable for any loss that Customer may incur as a result of unauthorized access. Customer is fully responsible to insure that End Users are accessing the platform adhering to all requirements such as to maintain security procedures as required.
- CUSTOMER’S USE OF THE SERVICES.
- The Customer acknowledges and understands that certain Services may require and utilize phone service, data access or text messaging capability. Except as otherwise noted as part of the Services, Medinexo does not charge for the use of Services, but carrier rates for phone, data and text messaging may apply. Medinexo makes no warranty with respect to the Services provided to the Customer based upon the Customer’s location and data access which can be affected by a wide variety of items including but not limited to a lack of data network access, spotty network coverage or other factors.
- In providing the Services, Medinexo does not actively monitor the display, transmission and/or exchange of any Material (defined in Section 1.3) that is accessible by means of the Services, while Medinexo reserves the right to monitor the Services for purposes of determining that their usage is in compliance. When using the Services, the Customer shall: (i) observe all traffic laws and otherwise drive safely; (ii) not otherwise interact with the Mobile Application, unless the Customer’s vehicle is stationary and legally parked; (iii) not use the Services for any illegal, unauthorized, unintended, or unlawful purposes.
- Further, the Customer expressly agrees: (i) to comply with all applicable foreign, federal, state/provincial and local laws relating to use of the Services under this Agreement (including without limitation, export and control laws and regulations); (ii) not to upload, post, email or otherwise transmit content through use of the Services that (1) infringes any third-party intellectual property or other proprietary rights or rights of publicity or privacy or that is unlawful, threatening, abusive, harassing, tortuous, libelous, deceptive, fraudulent, invasive of another’s privacy, vulgar, obscene, hateful or racially, ethnically or otherwise contains objectionable material of any kind or nature; (2) violates any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination or false advertising); (3) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (4) is profane, indecent, obscene, harmful to minors or child pornographic; (5) contains any viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information or property of another; (6) that includes any unsolicited or unauthorized advertising or marketing requiring prior consent under the TCPA (Telephonic Consumer Protection Act) regulations; or (7) is materially false, misleading or inaccurate or that Customer does not have the right to transmit under any law or under contractual or fiduciary relationships. Medinexo may restrict, disable, block access to, or cancel the Services provided to the Customer or its End Users if it has a reasonable suspicion of abuse or fraudulent use after providing a prompt notice of the restriction or termination to the Customer and following thirty (30) days without resolution by the Customer.
- Medinexo may disclose information about Customer’s use of Services to satisfy any law, regulation, government agency request, court order, search warrant, subpoena or other legal process. Services are encrypted in normal operation, although it is solely Customer’s responsibility to ensure use of Services comply with the internal policies and procedures including any applicable Federal and State requirements which may include HIPAA, HITECH, OMNIBUS and TCPA regulations.
- The Services may include and incorporate certain audio and video conferencing features (“TeleHealth Services”) as explicitly specified in the Agreement. With respect to such TeleHealth Services, where applicable, each of Customer’s End Users will have the ability to make video calls to other End Users using the Services in a single call up to the limited group size with each participant who dials into the video and/or voice call considered one participant. For optimal audio performance, a built-in mobile device speaker and microphone will be necessary to make use of the TeleHealth Services. Medinexo cannot guarantee that every computer or mobile device will successfully operate the TeleHealth Services based upon available Internet bandwidth, network/firewall settings and other circumstances.
- Medinexo may restrict, disable, block access to, or cancel the Services provided to the Customer or its End User if it has a reasonable suspicion of abuse or fraudulent use after providing a prompt notice of the restriction or termination to such Customer or End User and following thirty (30) days without resolution by the Customer or End User. Abuse and fraudulent use of Services include, but are not limited to:
- Attempting or assisting another to access, alter, or interfere with the communications of and/or information about another video customer;
- Tampering with or making an unauthorized connection to the Services Network;
- Using the Services in such a manner so as to interfere unreasonably with the use of Services by one or more other Customers or End Users or to interfere unreasonably with Medinexo’s or any third party service provider’s ability to provide Services;
- Using the Services for obscene, salacious, or unlawful information;
- Using the Services without permission on a stolen or lost Device;
- Sharing access to an End User account.
- Certain personal information and other information provided by the Customer in the use of the Services may be required to be stored in a HIPAA-compliant manner on the Customer’s Mobile Device even if such information is not collected by Medinexo. It is the Customer responsibility to maintain the security of the Customer Mobile Device from unauthorized access to any applicable Federal and State requirements which may include HIPAA, HITECH, OMNIBUS, and TCPA regulations.
- INTELLECTUAL PROPERTY NOTICE.
- The Customer acknowledges and agrees that (i) the Medinexo® Mobile Application, Services and Materials (ii) the source and object code of the Services, (iii) the format, directories, queries, algorithms, structure and organization of the Services, and/or accessed using the Services, (iv) the Medinexo® trademark, and (v) any and all copyrights and other intellectual property rights associated therewith (collectively, the “Intellectual Property,”), are the sole property of Medinexo, its wholly-owned subsidiaries, affiliates, licensors, suppliers or other third parties.
- USER GENERATED CONTENT/LICENSE FROM USERS.
- As between the Customer and Medinexo, the Customer may possess certain intellectual property rights in content that the Customer may submit, display and/or post via the Services, which is considered “End User Generated Content.” The Customer’s use of the Services and the Customer’s submission and/or posting of End User Generated Content grants Medinexo, and its affiliates, an express, perpetual, irrevocable, royalty-free, worldwide, and non-exclusive license to access, store, adapt, format, translate, and transmit, any and all End User Generated Content, without any obligation, notification or compensation to the Customer, solely for the purposes of delivery of the Services and shall be at all times subject to the express obligations of the BAA.
- Medinexo is under no obligation to review any End User Generated Content submitted, posted or otherwise displayed through the Services and assumes no responsibility or liability relating to any such End User Generated Content. Customer acknowledges and agrees that Medinexo shall have no liability for the deletion or failure to store any End User Generated Content transmitted using the Services.
- SERVICE LEVEL AGREEMENT (“SLA”).
- Platform Uptime. Medinexo will use commercially reasonable efforts to ensure that the Services provided to Customer shall be available 99.9% of the time (the “Platform Uptime Guarantee”). Medinexo will credit the Customer’s account solely for the actual time of Service outage as a percentage of Service delivery per each user who was unable to access the Services (an “Affected User”) for an entire month if Medinexo fails to meet this Platform Uptime Guarantee during any given calendar month. At the Customer’s request, Medinexo will calculate the Customer’s “Platform Unavailability” per each Affected User but will not include unavailability that the Customer fails to report to Medinexo within five days, or any unavailability resulting from: (a) scheduled Medinexo Platform maintenance; (b) any Customer-owned/maintained circuits or equipment failure; (c) the Customer’s applications or equipment; (d) acts of the Customer; or (f) reasons of Force Majeure. It will be at Medinexo’s sole discretion to determine fault and identify failure to perform under these obligations. During the Term of the Agreement, the Customer will be notified of any significant changes to the Guarantees and will be effective five (5) days after notice.
- Technical Support. Customer support is provided through Medinexo’s online support chat at www.medinexo.com. Medinexo staff will be available in a commercially reasonable manner in the event Customer needs technical support during normal business hours between 9:00am and 5:00pm Central time, Monday-Friday. The Customer may request an off hours contact for support which shall be available outside of normal business hours and as soon as reasonably possible. Customer is responsible for providing 1st level of support for all End Users of the Customer and is responsible for providing all levels of support for mobile devices owned or operated by Customer clients including their employees.
- Facilities Security. Medinexo’s data center facilities (“Data Centers”) are controlled access environments. All entrance into the Data Centers is restricted via biometric access equipment and database logged for on-demand review. The Data Centers will utilize a “dual entrance fiber facility” with a minimum of two competing fiber-optic telecommunication providers.
- DISCLOSURES TO END USERS.
- END USER IS OBTAINING THE MEDINEXO® MOBILE APPLICATION PURSUANT TO AN AGREEMENT SOLELY BETWEEN CUSTOMER AND MEDINEXO. MEDINEXO, MAY HAVE CONTRACTUAL RELATIONSHIP(S) WITH UNDERLYING SERVICE PROVIDER(S), BUT END USER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN MEDINEXO AND ANY UNDERLYING SERVICE PROVIDER. END USER UNDERSTANDS AND AGREES THAT ANY UNDERLYING SERVICE PROVIDER SHALL HAVE NO DIRECT LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO END USER AS MEDINEXO IS RESPSONSIBLE FOR CONTRACTUAL RELATIONSHIP WITH ITS CUSTOMERS. IN ANY EVENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, END USER’s EXCLUSIVE REMEDY FOR CLAIMS ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT, FOR ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FAILURE OR DISRUPTION OF SERVICE PROVIDED HEREUNDER, IS LIMITED TO PAYMENT OF DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY END USER FOR THE SERVICES DURING THE ONE (1)-MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE.
- CUSTOMER SHALL INDEMNIFY AND HOLD HARMLESS MEDINEXO AND ANY UNDERLYING SERVICE PROVIDER(S) AND EACH OF THEIR OFFICERS, EMPLOYEES, AND AGENTS AGAINST ANY AND ALL CLAIMS, INCLUDING WITHOUT LIMITATION CLAIMS FOR LIBEL, SLANDER, OR ANY PROPERTY DAMAGE, PERSONAL INJURY OR DEATH, ARISING IN ANY WAY, DIRECTLY OR INDIRECTLY, IN CONNECTION WITH THIS AGREEMENT OR THE USE, FAILURE TO USE, OR INABILITY TO USE THE MEDINEXO® MOBILE APPLICATION, EXCEPT WHERE THE CLAIMS RESULT FROM MEDINEXO’ OR ANY UNDERLYING SERVICE PROVIDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS INDEMNITY SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
- WHILE THE SERVICE AND ANY UNDERLYING SERVICE PROVIDER(S) SHALL COMPLY WITH APPLICABLE LAW, INCLUDING BUT NOT LIMITED TO HIPAA, AS AMENDED, AND ITS IMPLEMENTING REGULATIONS, END USER UNDERSTANDS THAT MEDINEXO AND ANY UNDERLYING SERVICE PROVIDER(S) CANNOT GUARANTEE THE SECURITY OF NETWORK TRANSMISSIONS, AND ACCORDINGLY WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF NETWORK TRANSMISSIONS.
- Medinexo disclaims any and all responsibility or liability for the accuracy, content, completeness, legality, and licensure of third party software, or the reliability, or operability or availability of information or the Material accessible by use of the Services.
- THE SERVICES (INCLUDING MATERIAL AND INFORMATION POSTED AND ACCESSIBLE THEREWITH) ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7 OF THIS AGREEMENT, MEDINEXO DISCLAIMS, TO THE FULLEST EXTENT PERMITTED UNDER LAW, ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY AND PERFORMANCE OF THE MOBILE APPLICATION, SERVICES AND MATERIAL. MEDINEXO DOES NOT WARRANT THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE MOBILE APPLICATION, SERVICES, MATERIAL, OR THE INTERNET GENERALLY, IS FREE OF VIRUSES, ERRORS, OTHER HARMFUL COMPONENTS, OR WILL BE UNINTERRUPTED.
- MEDINEXO DISCLAIMS, TO THE FULLEST EXTENT PERMITTED UNDER LAW, ANY AND ALL WARRANTIES, REPRESENTATIONS AND ENDORSEMENTS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES FOR ANY INFORMATION, GOODS, OR SERVICES, OBTAINED THROUGH, ADVERTISED OR RECEIVED THROUGH ANY LINKS PROVIDED BY OR THROUGH THE SERVICES; RELIABILITY, TIMELINESS, ACCURACY AND PERFORMANCE OF THE MOBILE APPLICATION, SERVICES AND MATERIAL.
- NONE OF MEDINEXO, ITS AFFILIATES, OR ANY ASSOCIATED MOBILE DEVICE PLATFORM AND SERVICE PROVIDERS, MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES REGARDING (1) THE OPERATION OR PERFORMANCE OF THE MOBILE APPLICATION, SERVICES, OR ANY THIRD PARTY PROVIDER CONTENT OR SERVICES EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7 OF THIS AGREEMENT.
- NOTWITHSTANDING THE FOREGOING, THE CUSTOMER AGREES AND ACKNOWLEDGES THAT TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE CUSTOMER WAIVES ANY SUCH STATUTORY RIGHTS WITH RESPECT TO IMPLIED WARRANTIES.
- NEITHER MEDINEXO, NOR ANY OF ITS ASSOCIATED MOBILE DEVICE PLATFORM AND SERVICE PROVIDERS, WARRANTS THAT THE MOBILE APPLICATION WILL BE COMPATIBLE OR INTEROPERABLE WITH THE CUSTOMER’S MOBILE DEVICE OR ANY OTHER PIECE OF HARDWARE, SOFTWARE, EQUIPMENT OR DEVICE INSTALLED ON OR USED IN CONNECTION WITH THE CUSTOMER’S MOBILE DEVICE.
- IN NO EVENT SHALL MEDINEXO OR ANY OF ITS ASSOCIATED MOBILE DEVICE PLATFORM AND SERVICE PROVIDERS BE LIABLE TO THE CUSTOMER ON ACCOUNT OF THE CUSTOMER’S OR AN END USER’S USE, MISUSE OR RELIANCE ON THE MOBILE APPLICATION AND THE SERVICES, FOR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT, SPECIAL, PUNITIVE, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, REVENUE, USE, OR DATA, INCLUDING BUT NOT LIMITED TO LOSS OR INTERRUPTION OF DATA, RECORDINGS, COMPUTER TIME OR VOICE TRANSMISSIONS; ALTERATION OF DATA; ACCURACY OF DATA; INABILITY TO USE THE SERVICES TO CONTACT EMERGENCY SERVICES, UNAUTHORIZED ACCESS TO OR USE OF VOICE OR DATA PROCESSED OR TRANSMITTED BY, TO OR THROUGH THE SERVICES; OR PROGRAM ERRORS, WHETHER BROUGHT IN WARRANTY, CONTRACT, INTELLECTUAL PROPERTY INFRINGEMENT, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY, EVEN IF MEDINEXO OR ANY OF ITS ASSOCIATED MOBILE DEVICE PLATFORM AND SERVICE PROVIDERS ARE AWARE OF OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, ARISING OUT OF OR CONNECTED WITH (1) THE USE (OR INABILITY TO USE) OR PERFORMANCE OF THE SERVICES, (2) THE MATERIAL OR THE INTERNET GENERALLY, (3) RELIANCE UPON OR PERFORMANCE OF ANY MATERIAL CONTAINED IN OR ACCESSED FROM ANY MOBILE APPLICATION OR ANY THIRD PARTY PROVIDER CONTENT OR SERVICES, OR (4) ANY PRODUCTS OR SERVICES PURCHASED OR OBTAINED AS A RESULT OF AN ADVERTISEMENT OR OTHER INFORMATION OR MATERIAL ACCESSED USING THE MOBILE APPLICATION. NEITHER MEDINEXO, NOR ANY OF ITS ASSOCIATED MOBILE DEVICE PLATFORM OR SERVICE PROVIDERS, ASSUMES ANY LEGAL LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS, TIMELINESS OR USEFULNESS OF ANY INFORMATION, APPARATUS, PRODUCT OR PROCESS OR OTHER MATERIAL ACCESSIBLE FROM THE MOBILE APPLICATION.
- THE USER OF THE SERVICES ASSUMES ALL RESPONSIBILITY AND RISK FOR THE USE OF THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE CUSTOMER (AND/OR EACH OF ITS END USERS) IS AT ALL TIMES SOLELY RESPONSIBLE FOR ALL CLINICAL DECISIONS AND THE DELIVERY OR NON-DELIVERY OF PATIENT CARE SERVICES, REGARDLESS OF THE CUSTOMER’S OR USER’S USE, MISUSE, OR NON-USE OF THE MEDINEXO SERVICES, OR THE AVAILABILITY OR NONAVAILABILITY OF THE MEDINEXO SERVICES. AT NO TIME AND UNDER NO CIRCUMSTANCES SHALL MEDINEXO OR ANY OF ITS ASSOCIATED MOBILE DEVICE PLATFORM AND SERVICE PROVIDERS BE LIABLE TO THE CUSTOMER, THE END USERS, OR TO ANY THIRD PARTY, INCLUDING PATIENTS, FOR ANY CLINICAL OR PATIENT CARE DECISION OR THE DELIVERY OR NON-DELIVERY OF PATIENT CARE SERVICES BY THE CUSOMER OR ANY END USER.
- THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, OR IF IT IS OTHERWISE DEEMED UNENFORCEABLE, AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM (1) BREACH OF CONTRACT, (2) BREACH OF WARRANTY, (3) NEGLIGENCE, OR (4) ANY OTHER CAUSE OF ACTION, TO THE EXTENT SUCH EXCLUSIONS AND LIMITATIONS ARE NOT PROHIBITED BY APPLICABLE LAW. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO THE CUSTOMER; IN SUCH STATES LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
- WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MEDINEXO’S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED THE TOTAL AMOUNT OF FUNDS PAID TO MEDINEXO BY THE CUSTOMER IN CONNECTION WITH THE AGREEMENT DURING THE PRECEEDING QUARTER.
- The Customer agree to indemnify and hold Medinexo and, as applicable, its parent, subsidiaries, affiliates, partners, officers, directors, agents and employees, licensors, and suppliers harmless from any claim or demand, including any and all losses, liabilities, claims, demands, damages, costs or expenses, causes of action, suits, proceedings, judgments, awards, executions, and liens, including reasonable attorneys’ fees and costs, whether brought by third parties or otherwise, due to or arising out of: (i) the Customer’s breach of any representation, warranty, covenant or obligation set forth in this License (or any other violation of the Customer Agreement with Medinexo on the basis of this License); (ii) the Customer’s (or any of its End Users’) use or misuse of the Services, including but not limited to in connection with any clinical decisions or the delivery or non-delivery of care or services, or the use of any location information; (iii) any information, End User Generated Content or other material transmitted, submitted or provided by the Customer through the Services, including the Customer’s use of the Services to provide a link to another Website or to upload content or other information using the Mobile Application and, without limitation, our exercise of our rights with respect to such information; (iv) the Customer’s violation of any law, or the Customer’s violation of the rights of a third party, including the infringement by the Customer of any intellectual property or other right of any person or entity; (v) the Customer’s use of any End User Generated or third party Medinexo content and services including, without limitation, (a) any information, software or other material viewed or accessed by the Customer through any third party Medinexo Content and Services (including without limitation, any advertisement or coupon for products or services using any third party Medinexo content and Services), (b) any transactions initiated or conducted by the Customer through any third party Medinexo content and services (including, without limitation, any taxes associated therewith and any use by third parties of the Customer credit card information), (c) any products or services that the Customer bid on, purchased or otherwise obtained through any third party Medinexo content and services (including, without limitation, the quality, safety and legality of such products or services or the sale thereof), (d) any reservations the Customer makes through any third party content and service, and (e) the conduct of sellers of any products or services that the Customer purchase or otherwise obtain via any third party Medinexo content and service.
- The foregoing indemnity obligations will survive any termination of this Agreement. Medinexo reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by the Customer, which will not excuse the Customer indemnity obligations under this Section. The Customer agrees not to settle any matter subject to the forgoing indemnification obligations without the express consent and approval of Medinexo.
12.0 DIGITAL MILLENNIUM COPYRIGHT COMPLAINTS.
Medinexo respects the copyright rights of others, and we ask our advertisers and other third parties to do the same. In appropriate circumstances and at our discretion, we may remove, suspend, terminate access, or take other appropriate action against users or other third parties who infringe or repeatedly infringe the copyright rights of others. Therefore, if the Customer reasonably believes that any Material accessed using the Mobile Application or Services contains unauthorized reproductions of the Customer copyrighted work or otherwise infringe an exclusive copyright right, and the Customer reasonably believes it is appropriate to notify us to take any action/and the Customer wants us to take any action, then, as required under the Digital Millennium Copyright Act (17 U.S.C. sec. 512), (“DMCA”) the Customer must promptly provide in writing the following information to our Designated Agent: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single on-line site are covered by a single notification, a representative list of such works at that site; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) information reasonably sufficient to permit us to contact the Customer, such as an address, telephone number and e-mail address; (v) statement that the Customer have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (vi) a statement that the information in the notice is accurate, and under penalty of perjury, that the Customer are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Our
Designated Agent for the Medinexo Services is as follows: Medinexo USA, LLC, Attn: General Counsel, 7733 Forsyth Blvd, Suite 1100, Clayton, MO 63105. ANY NOTICE THAT DOES NOT COMPLY WITH THE REQUIREMENTS OF TITLE 17, UNITED STATES CODE, SECTION 512(C)(3) WILL NOT RECEIVE A RESPONSE. NOTHING IN THIS SECTION 12.1 IS INTENDED TO EXPAND OR SUPPLEMENT THE LEGAL RIGHTS, PROCEDURES AND REMEDIES AUTHORIZED AND GRANTED UNDER DMCA AND WE DO
NOT REPRESENT ANY RELATED UNDERTAKING BY MEDINEXO NOT OTHERWISE EXPRESSLY REQUIRED BY APPLICABLE LAW.
13.0 TERM AND TERMINATION.
13.1 Term/Renewals. This Agreement is effective and its term shall begin the date the Customer delivers a signed Agreement and shall continue in effect unless and until terminated as provided herein. The initial term is for a fixed number of years, days, or months as specified by the Agreement pursuant to a subscription plan (a “Subscription Term”), and shall automatically renew for successive terms (each a “Renewal Term” and, together with the “Subscription Term,” the “Term”) as specified by the Agreement, unless either party delivers written notice of intention not to renew at least 60 days prior to the expiration of the Subscription or any Renewal Term.
13.2 Remedies for Default. In the event that the Customer defaults in any of the terms and conditions of the Medinexo Agreement, including these Terms and any Agreement completed and approved thereunder, or a petition for bankruptcy is filed by or against the Customer, then, to the extent permitted by applicable law, Medinexo shall have the right to exercise one or more of the following remedies: (a) To declare the entire amount of the unpaid total purchase price due and payable plus all service fees that would otherwise come due for the remainder of the Term; and/or (b) To terminate this Agreement as to any or all remaining Services to be provided. All remedies of Medinexo hereunder are cumulative and may, to the extent permitted by law, be exercised concurrently or consecutively and jointly or severally, and the exercise of any one remedy shall not be deemed to be an election of such remedy to preclude the exercise of any other remedy. No failure on the part of Medinexo to exercise, and no delay in exercising any right or remedy hereunder, shall operate as a waiver thereof; nor shall any single or partial exercise by Medinexo of any right or remedy hereunder preclude any other or further exercise of any partially exercised right or remedy.
13.3 Termination for Breach. Either party may terminate this Agreement at any time in the event that the other party breaches any provision of this Agreement in any material respect and fails to cure such breach within 60 days after receipt of written notice of such breach. Terminations by Customer pursuant to this Section shall be effective as provided in Section 13.4 below. Notwithstanding the foregoing, Medinexo may terminate this Agreement and/or suspend the provision of Services immediately: (i) for illegal, fraudulent, improper or abusive use of the Services (including without limitation Customer’s use of the Services in contravention of Section 3, to be determined in Medinexo’s sole discretion); (ii) if deemed reasonably necessary by Medinexo to prevent interruption or disruption to Medinexo’s network, its business or other customers; (iii) if any portion of an invoice not reasonably disputed in good faith as herein provided remains unpaid when due; or (iv) for breach, not subject to cure. Medinexo shall not be liable to Customer or any third party should Medinexo exercise its right to discontinue Services, in whole or in part, or terminate this Agreement pursuant to this Section 13.3. Medinexo reserves the right to seek any and all remedies available at law or in equity in connection with any breach or violation of this Agreement by the Customer or any Customer End User.
13.4 Termination Effective. All terminations by Customer pursuant to this Section 13.0 shall become effective on the last day of the billing cycle in which the termination occurs. In the event that Customer terminates this Agreement not due to breach by Medinexo or if Medinexo terminates for any reason provided in Sections 13.2 and 13.3 above, Customer remains responsible for any and all fees and charges due and incurred for the month during which the termination occurs and will not be entitled to any partial month credits or refunds. In addition, Customers that have elected Services for a fixed number of months or years shall pay to Medinexo an amount equal to 50% of the Customer’s average monthly Service Charge for each remaining months of the term election with the Agreement superseding in a conflict of terms.
13.5 Termination of Agreement. Upon expiration or prior termination of the Medinexo Agreement, all rights granted herein shall revert to Medinexo. All access to and use of the Services by Customer’s End Users must then cease, and all materials downloaded in connection with the Services must be erased, deleted, or destroyed.
- If for any reason a court of competent jurisdiction finds any provision of this Agreement to be invalid or unenforceable, the provision will be superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of this Agreement will continue in effect and enforceable.
- The Customer acknowledges and agrees that that it is the intent of both the Customer and Medinexo to limit the period of time a claim may be filed, even if the period is shorter than that fixed by the statute of limitations. The Customer therefore agrees that any cause of action arising out of or related to the Services must commence within one (1) year after the cause of action accrues, otherwise such cause of action is permanently barred.
- The Customer is responsible for compliance with applicable laws, regulations and ordinances related to the Customer’s use of the Services. The Customer’s compliance with applicable laws is not limited to jurisdictions within the United States (including US Federal law) but also the laws, regulations and ordinances of any jurisdiction from which the Customer accesses the Services.
- This Agreement, together with any Agreement attached hereto or referenced herein, constitutes the entire Agreement between the Parties with respect to the subject matter herein, and supersedes and replaces any prior communications, proposals, or terms and conditions with respect to the same subject matter. This Agreement will be governed by and construed in accordance with the laws of the State of Missouri, without giving effect to its conflict of laws provisions or the Customer’s actual state or country of residence, and the Customer agrees to submit to personal jurisdiction in St. Louis City, Missouri in connection with any claim arising under this Agreement. The Customer also agrees to exclude, in its entirety, the application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods.
- Any notices required to be given under this Agreement shall be given in writing and shall be delivered to the following address: Medinexo USA, LLC Attn: General Counsel 7733 Forsyth Blvd, Suite 1100 Clayton, MO 63105
- Without limitation, the Customer’s use of the Mobile Application and Services with any device is subject to the Usage Rules established by the applicable vendor and/or provider of the operating system on the applicable Customer Mobile Device, including those terms set forth in the Apple® App Store Terms and Conditions, the Google Play Store Terms and Conditions, the applicable provisions of which are incorporated herein by this reference.