Additional Terms to Medxoom Customer Agreement 

 

The following terms are incorporated in and made a part of the Medxoom Customer Agreement entered into by and between Medxoom, Inc. and Customer.  As used herein, the term “Agreement” refers to such Medxoom Customer Agreement.

 

1. Restrictions on Use. Customer shall not, without the prior written approval of Medxoom, distribute, publicly perform, display, lease, sell, transmit, transfer, publish, edit, copy, create derivative works from, rent, sub-license, distribute, decompile, disassemble, reverse engineer or otherwise make unauthorized use of the Platform or the Services, and any commercial use not expressly authorized by Medxoom is prohibited. Customer agrees not to remove, obscure, or alter copyright, patent, trademark, or other proprietary rights notices affixed to the Platform or the Services and Customer agrees not to use the Platform or Services in any unlawful manner.

2. Third Party Content. Customer acknowledges that Medxoom does not control, and is not responsible for, any data, content, services, or products (including software) that Customer accesses, downloads, receives or purchases through the Platform or the Services. Medxoom is not a publisher of third-party content accessed through the Platform or Services and is not responsible for the content, accuracy, timeliness or delivery of any opinions, advice, statements, messages, services, graphics, data or any other information provided to or by third parties as accessible through the Platform or the Services. While Medxoom may provide access to third party information and links from time to time, Medxoom provides such information and links as a convenience to Customer and the provision of such should not be considered endorsements of such sites or any content, products or information offered on such sites. Customer acknowledges and agrees that Medxoom is not responsible for any aspect of the information or content contained in any third party materials or on any third party sites, and Customer is responsible for evaluating whether Customer desires to access or use any third party site. Accordingly, if Customer decides to use third party sites, Customer does so at its own risk.

3. Posting Content. In connection with the Services, Medxoom will work with Customer to ingest Customer Content to post on the Platform. Content ingestion may be performed through the use of APIs, electronic file transfer or other data integration methods mutually agreed upon by the parties. Customer agrees that all Content Customer provides to Medxoom or through the Services shall be accurate and Customer agrees to honor all terms, including pricing, shared through the Services. In the event any Content changes, Customer agrees to take steps to immediately update such information. Customer acknowledges that Medxoom has no obligation to verify the accuracy or completeness of any Content posted or made available by Customer. Customer further agrees that Medxoom is not liable for the loss, corruption, alteration or removal of any Content and Customer expressly agrees to hold Medxoom harmless for any such loss, alteration, corruption or removal. Customer represents and warrants that it is entitled to submit it Content to Medxoom and that such Content is not confidential and the submission thereof does not violate any law, contractual restrictions or other third party rights (including any Intellectual Property Rights).

4. Intellectual Property Rights. Medxoom retains and owns all right, title and interest in and to the Intellectual Property Rights regarding the Platform, the Services and any other software and any other materials owned by Medxoom (“Medxoom Materials”). No rights to Medxoom Materials are granted to Customer hereunder other than as expressly set forth in this Agreement. “Intellectual Property Rights” means the intangible legal rights or interests evidenced by or embodied in (a) any idea, design, concept, technique, invention, discovery, or improvement, regardless of patentability, but including patents, patent applications, mask works, trade secrets, and know-how; (b) any work of authorship including copyrights and any moral rights recognized by law; and (c) any other similar rights. This Section shall survive expiration or termination of this Agreement.

5. HIPAA Compliance. Customer and Medxoom agree that they shall comply with all applicable laws relating to the privacy and security of health and medical information, including, without limitation, the Health Insurance Portability and Accountability Acts of 1996 (“HIPAA”) and its implementing regulations. In the event Medxoom is determined to be a business associate for purposes of HIPAA, the parties agree to enter into an appropriate, mutually agreeable business associate agreement that meets the applicable requirements of HIPAA. Customer agrees that is solely responsible for obtaining any authorization and/or consent that may be necessary to use or disclose information of Customer’s patients in connection with the Services and that Customer shall produce copies of such authorizations to Medxoom upon request.

6. Health Information. Customer acknowledges that Medxoom does not maintain records of any health or medical information and that the Platform is not intended for use as an electronic medical record or other record depository. Customer agrees that it is solely responsible for maintaining appropriate clinical and medical records for Customer’s patients, and Customer agrees to implement appropriate and reasonable administrative, physical and technical safeguards to prevent the unauthorized use or disclosure of any health or medical information used, disclosed or accessed in connection with the Services.

7. Privacy Policy. Customer agrees that its use of the Platform and the Services is subject to the terms of Medxoom’s Privacy Policy, available at Privacy Policy

8. Copyrighted Materials. Customer acknowledges that Medxoom respects the Intellectual Property Rights of others and expects Customer to do the same. Medxoom reserves the right to terminate Customer’s rights under this Agreement if such infringes the copyrights or other Intellectual Property Rights of others. Customer agrees that it will not upload, download, post, publish, transmit, reproduce, or distribute in any way, files, material, information, software or other material that is protected by copyright or other proprietary right or derivative works with respect thereto, without obtaining permission of the copyright owner or other right holder. Medxoom reserves the right, but not the obligation, to remove from the Platform and the Services any files, material, information, software or other material Medxoom believes is or may be, in its sole discretion, infringing or otherwise in violation of the rights of others.

9. Confidentiality.

a. For purposes of this Agreement, “Confidential Information” means any nonpublic technical or nontechnical information, trade secrets and know-how in any form disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”). The Receiving Party agrees that it will not use or disclose any Confidential Information except for the benefit of the Disclosing Party or for exercising and performing its rights and obligations under this Agreement. The foregoing will not apply to any information that: (i) is rightfully known by the Receiving Party prior to disclosure by the Disclosing Party; (ii) is rightfully obtained by the Receiving Party from a third party without restrictions on disclosure; (iii) is disclosed by the Receiving Party with the prior written approval of the Disclosing Party; or (iv) to the extent required by law, subpoena, court order or other legal process so long as the Receiving Party provides advance notice to the Disclosing Party as promptly as possible and cooperates with the Disclosing Party’s efforts to obtain a protective order or other relief regarding such disclosure.

b. The parties agree that a breach of this Section may result in irreparable harm to the Disclosing Party and that damages alone may be an insufficient remedy for such breach. Accordingly, in the event of any breach or threatened breach of this Section by the Receiving Party, the Disclosing Party shall have the right to obtain temporary or permanent injunctive or other equitable relief from a court of competent jurisdiction, without the necessity of posting bond or similar security. The rights to equitable relief provided hereunder shall be in addition to, and not in limitation of, any other rights or remedies a party may be entitled to at law or in equity.

c. This Section shall survive expiration or termination of this Agreement.

10. No Guarantee; No Payment for Referrals. Customer acknowledges that Medxoom does not make any representations, warranties or guarantees with respect to any business that Customer may obtain or generate through Customer’s use of the Platform or Services. Moreover, the parties acknowledge that the fees paid hereunder are not based upon the volume or value of referrals and are not tied to the value of any business generated for Customer through the use of the Platform or Services.

11. Customer Warranties. Customer represents and warrants that: (a) Customer will comply with all applicable laws and regulations in exercising any of its rights hereunder and in performing under this Agreement or any Order Form; (b) Customer has the corporate power, authority, proper consents, and legal right to enter into this Agreement and this Agreement constitutes a binding obligation of Customer; (c) Customer has all rights necessary for providing and publishing Content and other information that is delivered or made accessible to Medxoom in connection with this Agreement and (d) the entering into this Agreement by Customer will not violate any other agreement or obligation to which Customer is a party or is otherwise bound.

12. Medxoom Warranties. Medxoom represents and warrants that: (a) Medxoom will comply with all applicable laws and regulations in exercising its rights hereunder and in performing under this Agreement and any Order Form; and (b) Medxoom has the corporate power, authority, proper consents and legal right to enter into this Agreement and this Agreement constitutes a binding obligation of Medxoom.

13. Disclaimer of Warranties. OTHER THAN THE REPRESENTATIONS AND WARRANTIES THAT ARE EXPRESSLY SET FORTH HEREIN, MEDXOOM MAKES NO WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, NONINFRINGEMENT, AVAILABILITY OR ACCURACY OF INFORMATION. MEDXOOM DOES NOT WARRANT THAT THE SERVICES WILL BE AVAILABLE, WILL MEET CUSTOMER’S REQUIREMENTS OR WILL OPERATE IN AN UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED. MEDXOOM DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES, IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. THIS SECTION SHALL SURVIVE EXPIRATION OR TERMINATION OF THIS AGREEMENT.

14. Limitation of Liability. EXCEPT FOR (A) MEDXOOM’S GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, OR FRAUD OR (B) LIABILITY ARISING FROM MEDX’OM’S VIOLATION OF APPLICABLE LAW, MEDXOOM SHALL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, LOST SAVINGS, LOST VALUE OR LOST SALES EVEN IF ADVISED OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A PARTY ASSERTS OR ESTABLISHES A FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT. IN NO EVENT SHALL MEDXOOM’S CUMULATIVE LIABILITY TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT EXCEED FEES PAID BY CUSTOMER TO MEDXOOM DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS NOT ALLOWABLE FOR ANY REASON, THE PARTIES AGREE THAT MEDXOOM’S LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY MEDXOOM TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS.

THIS SECTION SHALL SURVIVE EXPIRATION OR TERMINATION OF THIS AGREEMENT.

15. Feedback. Customer may from time to time identify problems, solutions to identified problems, provide suggestions, comments or other feedback related to the Platform, the Services or Medxoom (“Feedback”). Customer acknowledges and agrees that all Feedback is and shall be given entirely voluntarily and Medxoom shall be free to use or disclose such Feedback for any purpose. Customer further acknowledges and agrees that Customer’s Feedback does not contain confidential or proprietary information and that Customer is not entitled to any compensation or reimbursement of any kind from Medxoom under any circumstances relating to such Feedback.

16. No Professional Advice. Customer agrees and acknowledges that neither Medxoom nor any of its products and services are intended to provide legal, medical, tax or financial advice and that Medxoom is not, and is not an agent of, any health care provider. Customer agrees and acknowledges that Customer and Customer’s health care providers, employees and agents are solely responsible for the care, treatment, services and advice provided to Customer’s patients and Customer is solely responsible for establishing a relationship with any patient and obtaining and maintain all consents required in connection with such patient relationship. Medxoom shall have no responsibility whatsoever for any care, treatment, services or advice provided by Customer or Customer’s providers, employees and agents.

17. Payment Processing Services. If the Services accessed by Customer include payment processing services offered by Medxoom, Customer authorizes Medxoom or its third-party partners to make payments to Customer on behalf of third parties, including other users of the Services. Medxoom or its third-party partners may determine the payment method in their reasonable discretion. Where payments are made or required to be made by a third party, Customer acknowledges and agrees that Medxoom shall have no responsibility for, and Customer agrees to hold Medxoom harmless from, any failure by such third-party to make such payment or otherwise fulfill its obligations. Customer agrees to keep and maintain complete and accurate records and accounts with respect to any payment processing services and related fees for at least six (6) years thereafter or such longer period as may be required by applicable law (“Audit Period”). During the Audit Period, Medxoom and/or third-party agents may audit and review such records, upon notice and in a non-disruptive fashion. If the audit reveals any overbilling or overpayment, Customer shall remedy such non-compliance within thirty (30) days of receipt of written notice and Customer shall be responsible for reasonable costs and expenses in connection with such audit.

18. Miscellaneous.

a. Relationship of the Parties. Customer and Medxoom are independent contractors, and this Agreement shall not create, or be deemed to create, any relationship of partnership, joint venture or employment, agency. Except as otherwise contemplated herein, neither party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose.

b. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule.

c. Assignment. Neither party may assign, transfer or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided that upon prior written notice to the other party, either party may assign the Agreement to an affiliate of such party or to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation or acquisition. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

d. Interpretation. Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same shall not apply a presumption that the terms of this Agreement shall be more strictly construed against one party than against another.

e. Severability. In case any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

f. Amendment; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

g. Force Majeure. Neither party shall be liable for delay or failure in performing any of its obligations hereunder due to causes beyond its reasonable control, including an act of nature, war, natural disaster, governmental regulations, terrorism, communication or utility failures or casualties or the failures or acts of third parties.

h. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.

i. Compliance with Laws. The parties agree and acknowledge that it is their intention to perform under this Agreement in accordance with all applicable laws, rules and regulations. In the event either party reasonably determines that this Agreement or the parties’ performance under this Agreement violates any law, rule or regulation applicable to a party, such party shall notify the other and the parties shall thereafter engage in good faith negotiations to amend this Agreement as necessary for compliance. In the event the parties are unable to agree upon a mutually acceptable amendment within thirty (30) days of the aforementioned notice, either party may terminate this Agreement upon written notice of termination to the other party.