PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.
BY USING THE SERVICE OR CLICKING “AGREE” CUSTOMER IS AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER, A COMPANY, OR OTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO BIND SUCH EMPLOYER, COMPANY, AND OTHER LEGAL ENTITY TO THESE TERMS OF SERVICE, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This agreement is between MedSpoke, Inc., a Delaware corporation (MedSpoke), and the customer agreeing to these terms (Customer).
Software service. This agreement provides Customer access to and usage of an Internet based software service as specified on an order (Service).
Updated Terms of Service. These Terms of Service may be updated from time to time, typically with the release of new features of the Service. At such times Customer may be asked to consent to updated, new, or additional terms and conditions of this Subscription Agreement prior to being able to use such new features. Failure to agree to the new terms and conditions will result in Customer’s inability to access such new features.
USE OF SERVICE.
Customer Owned Data. All data, PDFs, images, and forms uploaded by Customer remain the property of Customer, as between MedSpoke and Customer (Customer Data). Customer grants MedSpoke the right to use the Customer Data solely for purposes of performing services under this agreement. Customer may collate, store, and share certain Customer Data as allowed by the Service and at its direction. Once shared, MedSpoke has very limited ability to retrieve or control such data. During the term of this agreement, Customer may export its Customer Data as allowed by functionality within the Service.
Contractor Access and Usage. Customer may allow its contractors to access the Services in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its contractors.
Customer Responsibilities. Customer (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify MedSpoke promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s [user guide] and applicable law.
MedSpoke Support. MedSpoke will provide customer support for the Service under the terms of MedSpoke’s Customer Support Policy. Such Support policies may be changed from time to time.
Free Version/Trial Period. MedSpoke may make a free version of the service (the “Free Version”) available to Customer at MedSpoke’s sole discretion. If Customer has registered for Free Version of the Service, Customer may access the Service for a limited time period (unless extended by MedSpoke in writing) (“Trial Period”). You agree that MedSpoke, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Version or any part thereof at any time without cause and without liability. Customer agrees that any termination of its access to the Free Version may be without prior notice, and Customer agrees that MedSpoke will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting its Data from the Free Version prior to termination of access to the Free Version for any reason, provided that if MedSpoke terminates Customer’s account, except as required by law MedSpoke will provide Customer a reasonable opportunity to export Customer’s Data. All Customer Date may be archived or deleted after the Free Version ends, unless Customer converts its account to a paid Service.
Limitation of Liability During Trial Period. ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR TRIAL OF THE FREE VERSION WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL BEFORE THE END OF THE TRIAL PERIOD. YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING ANYTHING ELSE CONTAINED HEREING, DURING ANY TRIAL PERIOD THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND MEDSPOKE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE SERVICES FOR THE TRIAL PERIOD. WITHOUT LIMITING THE FOREGOING, MEDSPOKE AND ITS AFFILIATES DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICES DURING THE TRIAL PERIOD WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICES DURING THE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO MEDSPOKE AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE SERVICES DURING THE TRIAL PERIOD, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.
Provision of Purchased Services. MedSpoke agrees (i) that commercially reasonable efforts will be made to maintain the online availability of the Service (excluding (a) planned downtime (of which MedSpoke shall give advance electronic notice), and (b) any unavailability caused by circumstances beyond MedSpoke’s reasonable control, without limitation including, for example, any force majeure, acts of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, problems with Non-MedSpoke applications, third party intrusions, hacks or other malicious or denial of service attacks); (ii) the functionality or features of the Service may change but will not materially decrease during any paid term; and (iii) that the Support may change but will not materially degrade during any paid term.
DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MEDSPOKE MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND CUSTOMER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
While MedSpoke takes reasonable physical, technical and administrative measures to secure the Service, MedSpoke does not guarantee that the Service cannot be compromised. Customer understands that the Service may not be error free, and use may be interrupted.
Payment. Customer must pay all fees as specified on the order, but if not specified then within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT and other similar taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement.
Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). MedSpoke’s Confidential Information includes without limitation the Service (including without limitation the Service user interface design and layout, and pricing information).
Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
Reservation of Rights. The software, workflow processes, user interface, designs, and other technologies provided by MedSpoke as part of the Service are the proprietary property of MedSpoke and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with MedSpoke. Customer may not remove or modify any proprietary marking or restrictive legends in the Service. MedSpoke reserves all rights unless expressly granted in this agreement.
Restrictions. Customer may not (i) sell, resell, rent or lease the Service or use it in a service provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or their related systems or networks; (v) reverse engineer the Service; or (vi) access the Service to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.
Software and Documentation. All software provided by MedSpoke as part of the Service, and the Service documentation, sample data, marketing materials, training material and other material provided through the Service or by MedSpoke (Software and Documentation) are licensed to Customer as follows: MedSpoke grants Customer a non-exclusive, non-transferable license during the term of this agreement, to use and copy such Software and Documentation, solely in connection with the Service.
Mobile Software. Some Software licensed above may include mobile software to access the Service via a mobile device (Mobile Software). To use the Mobile Software, Customer must have a mobile device that is compatible with the Mobile Software. MedSpoke does not warrant that the Mobile Software will be compatible with Customer’s mobile device. Customer may use mobile data in connection with the Mobile Software and may incur additional charges from Customer’s wireless provider for these services. Customer agrees that it is solely responsible for any such charges. Customer acknowledges that MedSpoke may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that Customer is using on its mobile device. Customer consents to such automatic upgrading on its mobile device.
Mobile Software from Apple App Store. The following applies to any Mobile Software Customer acquires from the Apple App Store (App Store Software): Customer agrees that this agreement is solely between Customer and MedSpoke, not Apple, and that Apple has no responsibility for the App Store Software or content thereof. Customer’s use of the App Store Software must comply with the App Store Terms of Service. Customer acknowledges that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Software. In the event of any failure of the App Store Software to conform to any applicable warranty, Customer may notify Apple, and Apple will refund the purchase price for the App Store Software to Customer. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this agreement and any law applicable to MedSpoke as provider of the App Store Software. Customer acknowledges that Apple is not responsible for addressing any claims by Customer or any third party relating to the App Store Software or Customer’s possession and/or use of the App Store Software, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this agreement and any law applicable to MedSpoke as provider of the App Store Software. Customer acknowledges that, in the event of any third-party claim that the App Store Software or Customer’s possession and use of that App Store Software infringes that third party’s intellectual property rights, MedSpoke, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this agreement. Customer and MedSpoke acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this agreement as relates to Customer’s license of the App Store Software, and that, upon Customer’s acceptance of the terms and conditions of this agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this agreement as relates to Customer’s license of the App Store Software against Customer as a third-party beneficiary thereof.
Anonymized Data. During and after the term of this agreement, MedSpoke may use and owns all anonymized data within the Service for purposes of enhancing the Service, aggregated statistical analysis, technical support and other business purposes.
TERM and Termination.
Term. This Agreement commences on the date Customer first accepts it and continues until all orders hereunder have expired or have been terminated. The term of each Service shall be as specified in the applicable order. Except as otherwise specified in an order, subscriptions will automatically renew as set forth in the order or if not specified in the order, on a month-to-month basis, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.
Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
Surviving Provisions. The sections titled “Free Version/Trial Period,” “Limitation of Liability During Trial Period,” “DISCLAIMERS,” “MUTUAL CONFIDENTIALITY,” “MedSpoke PROPERTY,” “Termination of Customer Data,” “LIABILITY LIMIT,” “INDEMNITY,” and “OTHER TERMS” will survive any termination or expiration of this Agreement.
Termination of Customer Data.
After termination of this agreement, MedSpoke has no obligation to maintain the Customer Data and may destroy it.
Return MedSpoke Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay MedSpoke for any unpaid amounts, and destroy or return all property of MedSpoke. Upon MedSpoke’s request, Customer will confirm in writing its compliance with this destruction or return requirement.
Suspension for Violations of Law. MedSpoke may temporarily suspend the Service or remove the applicable Customer Data, or both, if it in good faith believes that, as part of using the Service, Customer has violated a law. MedSpoke will attempt to contact Customer in advance.
Exclusion of indirect Damages. MedSpoke is not liable for any indirect, special, incidental or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of data, records or information; and lost profits, revenue or anticipated cost savings), even if it knows of the possibility of such damage or loss.
Total limit on Liability. Except for MedSpoke’s indemnity obligations, MedSpoke’s total liability arising out of or related to this agreement (whether in contract, tort or otherwise) does not exceed the amount paid by Customer within the 12-month period prior to the event that gave rise to the liability.
Defense of Third Party Claims. MedSpoke will defend or settle any third party claim against Customer to the extent that such claim alleges that MedSpoke technology used to provide the Service violates a copyright, patent, trademark or other intellectual property right, if Customer, promptly notifies MedSpoke of the claim in writing, cooperates with MedSpoke in the defense, and allows MedSpoke to solely control the defense or settlement of the claim. Costs. MedSpoke will pay infringement claim defense costs incurred as part of its obligations above, and MedSpoke negotiated settlement amounts, and court awarded damages. Process. If such a claim appears likely, then MedSpoke may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If MedSpoke determines that none of these are reasonably available, then MedSpoke may terminate the Service and refund any prepaid and unused fees. Exclusions. MedSpoke has no obligation for any claim arising from: MedSpoke’s compliance with Customer’s specifications; a combination of the Service with other technology or aspects where the infringement would not occur but for the combination; Use of Customer Data; or technology or aspects not provided by MedSpoke. This section contains Customer’s exclusive remedies and MedSpoke’s sole liability for intellectual property infringement claims.
By Customer. If a third-party claims against MedSpoke that any part of the Customer Data infringes or violates that party’s patent, copyright or other right, Customer will defend MedSpoke against that claim at Customer’s expense and pay all costs, damages, and attorney’s fees, that a court finally awards or that are included in a settlement approved by Customer, provided that MedSpoke: promptly notifies Customer in writing of the claim; and allows Customer to control, and cooperates with Customer in, the defense and any related settlement.
GOVERNING LAW AND FORUM.
This agreement is governed by the laws of the State of Texas (without regard to choice or conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Bexar County, Texas, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by MedSpoke. No waiver is effective unless the party waiving the right signs a waiver in writing.
No Assignment. Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all the assets, of a party.
Independent Contractors. The parties are independent contractors with respect to each other. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
Force Majeure. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation force majeure events.
Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
No Additional Terms. MedSpoke rejects additional or conflicting terms of any Customer form-purchasing document.
Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
Survival of Terms. Any terms that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including without limitation, the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.
Feedback. By submitting ideas, suggestions or feedback to MedSpoke regarding the Service, (i) Customer agrees that such items submitted do not contain confidential or proprietary information; and (ii) Customer hereby grants MedSpoke an irrevocable, unlimited, royalty-free and fully-paid perpetual license to use such items for any business purpose.
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