Terms of Service
IF YOU HAVE, OR ARE HAVING, A MEDICAL EMERGENCY, YOU SHOULD CONTACT YOUR LOCAL EMERGENCY NOTIFICATION SYSTEM (E.G., CALL 911) OR YOUR PROVIDER OR GO TO YOUR LOCAL EMERGENCY ROOM.
Medisprout, Inc. (“us” or “we”) provides proprietary application software, a website, a mobile app, a portal, technology infrastructure and, if and when available, data storage platforms and infrastructure for the transmission, receipt and retrieval of data (which, together with related documentation, is referred to as the “Platform”) and through the Platform, various services (the “Services”). A health care provider, facility or other healthcare organization (“Facility”), patient or other authorized person (“Authorized User”) may use the Platform and Services, and a health care provider, Facility, patient or Authorized User who uses the Platform or Services is referred to as “you”. A health care provider selected by a patient or Facility to provide health care services through the Platform is referred to as “your Provider”. The use of audio or video for communication (and, in connection with that audio or video, other electronic means of communication) between health care providers, Facilities, patients or Authorized Users with respect to health care is referred to as “Telemedicine”. For avoidance of doubt, the capitalized word “Services” as used in this Agreement refers only to the Services we provide and does not refer to the consultations, treatment or other health care services that are provided by health care providers, Facilities or Authorized Users of the Platform or Services.
The Platform and Services are designed to offer general information, a means to enable Telemedicine consultations and treatment for common medical conditions or other health care related matters, and if and when available, integrated communications (in Telemedicine or in-person settings) and data (including protected health information (“PHI”) as defined under the Health Insurance Portability and Accountability Act of 1996, and associated regulations, as amended from time to time (“HIPAA”)), transmission, reception, access and storage as a means to facilitate Telemedicine and in-person consultations and treatment for medical conditions or other health care related matters.
If you are using the Platform or Services on behalf of an individual or entity other than yourself, you represent that you are authorized by such individual or entity to accept this Agreement on such individual’s or entity’s behalf.
We may change this Agreement at any time. If we make any changes to this Agreement, we will update the “Last Revised” date at the bottom of this Agreement, post a notice on the Platform regarding the revised Agreement, and require that you acknowledge your agreement to the revised Agreement prior to being able to continue using the Platform and Services. Your use of the Platform and the Services following any change means that you accept and agree to be bound by the revised Agreement. If you do not agree with the revised Agreement, your sole and exclusive remedy is to discontinue your use of the Platform and Services, and you will be deemed to have terminated this Agreement. (See “Modifications to, or Discontinuation of, the Platform or the Services; Termination”, below.)
Jurisdictional and age issues
We intend to provide the Platform and Services in the United States. Accordingly, this Agreement is governed by the laws of the State of New York without giving effect to principles of conflicts of laws, with substantive rights in patents, copyrights, federal trademarks and federal trade secrets governed by the laws of the United States, and local law if applicable. We do not represent or warrant that the Platform, the Services or any functionality or feature of the Platform or Services, is appropriate or available for use in any particular jurisdiction. If you choose to access or use the Platform or Services from outside the United States, you do so on your own initiative and at your own risk, and you are solely responsible for complying with all relevant laws, rules and regulations. By using the Platform or Services, you acknowledge that the Platform and the Services are subject to the laws of New York and the United States as provided above which may differ from the law in the country from which you are using the Platform or Services.
To use the Platform and Services, you must be at least 18 years of age and reside in a jurisdiction in which we offer the Platform and Services. If you reside in a jurisdiction that restricts the use of the Platform or Services because of age, or restricts the ability to enter into contracts such as this Agreement due to age, you must abide by such age limits and you must not use the Platform or Services. By using the Platform and Services, you represent that you are of legal age to enter into a binding contract.
Use of the Platform and Services
For a health care provider or Facility to use the Platform and Services with a patient, Facility or Authorized User, the health care provider or Facility must first have a Subscription Agreement with us and then create an account in accordance with the instructions the health care provider or Facility receives from us. The health care provider or Facility may from time to time authorize its administrators and schedulers to use the Platform and Services (or remove such authorization) in accordance with those instructions.
For a patient to use the Platform, the patient must first create an account with a user name and password. The patient will then receive instructions from us on how to use the Platform and Services, such as how to access health care providers and Facilities who have Subscription Agreements with us. Depending on the availability and the patient’s selection of Services, the patient may need to acknowledge that he or she has read and agreed to our policies regarding the use of PHI and authorize actions that we may take with regard to his or her PHI and to aggregated, de-identified, anonymized health information.
If you are a patient, please be aware that health care providers and Facilities which are listed in the Platform are not obligated to provide you with health care services you might want to receive. We make no representation or warranty that a health care provider or Facility will be available to perform the health care services you would like.
We are not engaged in the practice of medicine or any other licensed profession. Neither we nor the Platform provides medical services or advice or is a health care provider and the Services are not medical services. No licensed medical or other professional/patient relationship is created between us and you by your using the Platform or Services.
Neither we nor the Platform or Services interferes with the practice of medicine or any other licensed profession by any health care provider or Facility, which is solely responsible for his, her or its services and compliance with the requirements applicable to his, her or its profession and license. The health care provider or Facility with which a patient establishes a relationship is solely responsible for providing the patient with medical or other professional services and for deciding that the Platform and Services are an appropriate vehicle for providing the provider’s or Facility’s services. The Platform and Services act only as a technology channel.
You represent and warrant that the information you provide to us is accurate and complete. You acknowledge and agree that we are entitled at all times to verify the information you provided to us and, subject to the terms of your subscription agreement with us if you are a health care provider or Facility, to deny you use of the Platform or the Services at any time for any reason or no reason.
You may only access the Platform or the Services using authorized means. It is your responsibility to check to ensure you correctly download the Platform for your device. We are not liable if you do not have a compatible device or if you download the wrong version of the Platform for your device.
By accessing or using the Platform and the Services, you further agree (without limitation of your other agreements in this Agreement) that:
- You will only use the Platform and the Services for your sole, individual use and you will not resell them to a third party;
- You will not copy or distribute the Platform or the Services or any portion of the Platform or Services (including any features of the Platform or the Services such as, among other examples, visual appearance, site design and workflows);
- You will not use the Platform or the Services for any purpose in violation of the laws of any jurisdiction;
- You will not use the Platform or the Services as a means to distribute advertising or other unsolicited material to any third party;
- In your use of the Platform or Services, you will not misrepresent your identity or affiliation or impersonate another person;
- You will not use the Platform or the Services to post, store or transmit any material, communications or content that infringes or violates the rights of others (including privacy rights), or is unlawful, obscene, defamatory, threatening, harassing, abusive, malicious, hateful or embarrassing to or intended to injure any other person or entity as determined by us in our sole discretion (although we have no obligation or liability to any person who is so injured);
- You will not collect or disclose information about users of the Platform and Services except as otherwise permitted by this Agreement or, in the case of a health care provider, Facility or Authorized User, only to the extent necessary to perform professional services;
- You will not gain, attempt to gain, or assist others to gain unauthorized access to the Platform or Services, to the communications or data processed or transmitted through the Platform or Services or stored on the Platform, to other users’ accounts, names, PHI or other personally identifiable information, or to other computers, servers or websites connected or linked to the Platform or Services;
- You will not restrict or inhibit any person from using the Platform or Services;
- You will comply with all applicable third party terms of agreement when using the Platform or the Services (e.g., your wireless data service agreement);
- You will ensure that no unauthorized person shall have access to your mobile device or computer or your Platform user names, passwords or accounts;
- You will promptly notify us in the event your Platform user names, passwords or accounts have been compromised;
- You will not assign or otherwise transfer your Platform account to any other person or entity;
- You will not try to harm the Platform or the Services or impair their proper operation in any way, including but not limited to storing or transmitting malicious code or using the Platform or the Services in a way that threatens the integrity, performance or availability of them or any data contained in any of them;
- You will not use or access the Platform or the Services to create (or have created by a third party) a competing or similar platform or service;
- You will not try to decompile, disassemble or reverse engineer the Platform or Services, in whole or in part;
- You will provide us with whatever proof of identity we may request; and
- You consent to the Platform detecting your location.
Without limitation of our other rights and remedies, we may (but are not obligated to) restrict, terminate or prohibit use of or access to the Platform or Services, or the communications or data processed or transmitted through the Platform or by the Services, by a health care provider, Facility, patient or Authorized User if we reasonably suspect that the use of or access to the Platform or Services by the health care provider, Facility, patient or Authorized User is not in compliance with this Agreement, the documentation included within the Platform or applicable laws or regulations, or otherwise threatens the Platform or Services or the communications or data processed or transmitted through the Platform. However, we will have no liability if we do not restrict or prohibit such use or access.
We are not responsible for (a) the accuracy and completeness of professional advice or of patient data provided by a health care provider, Facility, patient, Authorized User or third party in its use of the Platform or Services, (b) the performance of the information technology systems of a health care provider, Facility, patient, Authorized User or third party, (c) any data or information provided or obtained by a health care provider, Facility, patient, Authorized User or third party through the Platform and Services, including but not limited to any treatment recommendations or decisions made by a health care provider, Facility, patient or Authorized User or reliance on patient data obtained through the Platform or Services, (d) any act and omission of a health care provider, Facility, patient, Authorized User or third party in connection with its use of the Platform and Services, (e) the accuracy, quality, content, integrity and legality of the relationships and communications among a health care provider, Facility, patient, Authorized User or third party when using the Platform and Services, or (f) the decision by a health care provider, Facility, patient, Authorized User or authorized user that the use of the Platform or Services is appropriate for communication between or among them or for the evaluation of a patient.
We do not charge a patient to download the Platform on the patient’s mobile device or computer, to create an account, to review the health care providers and Facilities listed in the Platform, to schedule a Telemedicine visit with a listed health care provider or Facility or to have a Telemedicine visit with a listed health care provider or Facility. We reserve the right to charge a fee in the future for any of these items. If we decide to introduce such a fee and a patient has an account with us, we will inform the patient and allow the patient to either continue or discontinue using the Platform. We may in the future make certain Services available to patients and, if we do, we may charge a fee for these Services.
We charge a health care provider or Facility a fee for use of the Platform and Services by it and its patients and Authorized Users.
Fees payable to us are in consideration for use of the Platform or Services and are not for the provision of medical or other professional services.
Your Provider sets his or her own fees for professional services rendered, and your Provider determines whether to accept any particular insurance plans. It is a patient’s responsibility to remain informed about the current fees charged by your Provider and the insurance plans (if any) accepted by your Provider.
If you are a health care provider or Facility, you will pay for use of the Platform and, if applicable, Services provided by us in accordance with your subscription agreement with us. Unless otherwise provided in your subscription agreement, you are responsible for the timely payment of all fees and for maintaining with us at all times a valid credit or debit card account for payment of our fees. In addition, if the credit or debit card account you have provided is not valid or any credit or debit card payment is rejected or denied, we will charge you an additional administrative or similar fee in accordance with your Subscription Agreement. Any payment made is non-refundable.
We are not responsible for processing insurance claims on your behalf.
Intellectual Property Ownership; License
We (and our licensors, where applicable) own all right, title and interest, including all intellectual property rights, in and to the Platform and the Services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information (collectively, “Feedback”) provided by you or any other party relating to the Platform and the Services. Any copy, modification, revision, enhancement, adaptation, translation, or derivative work of or created from or relating to the Platform or the Services shall be owned solely and exclusively by us (or our licensors, where applicable), as shall any and all patent rights, copyrights, trade secret rights, trademark rights, and all other proprietary rights, worldwide therein and thereto. You hereby assign to us (or to our licensors with respect to those portions of the Platform or Services owned by our licensors) all of your right, title and interest in the Platform and the Services, any modification to or derivative work of the Platform or the Services and any Feedback provided by you. You shall not remove or authorize or permit any third party to remove any proprietary rights legend from the Platform or the Services.
This Agreement does not constitute a sale of, and does not convey to you, any rights of ownership in or related to the Platform or the Services, or any intellectual property rights owned by us or our licensors. Our name and logo, and the product names and logos associated with the Platform and the Services, are trademarks of ours, our affiliated companies or third parties, and no right or license is granted to use them.
The materials included in the Platform and the Services are copyrighted by us or other applicable rights holders. You may download and reprint a single copy of the materials from the Platform and the Services for your sole individual use, provided that you keep intact all credits and copyright and other proprietary notices. Any other use of the materials is strictly prohibited without our prior written permission and the permission of the applicable rights holder(s).
Subject to your compliance with the terms and conditions of this Agreement, we grant to you a limited, revocable, non-exclusive, non-transferable and non-sublicensable license (a) to download and install a copy of the Platform on a mobile device or computer that you own or control, (b) to run such copy of the Platform solely for your own personal use, and (c) to use the Services solely for your sole individual use and solely (1) in the case of a health care provider, Facility or Authorized User, to communicate with each other, (2) in the case of a health care provider, Facility or Authorized User, on the one hand, and a patient, on the other, to communicate with each other, and (3) if and when available, in the case of a health care provider, Facility, patient or Authorized User, to communicate with third parties. For purposes of the preceding sentence, “communicate” includes, if and when available, transmitting to or receiving data (including a patient’s PHI) from a third party, and adding to, accessing and retrieving from, and storing in a patient’s electronic file such Patient’s data (including such patient’s PHI).
You shall not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Platform or Services in any way except as provided in this Agreement or, in the case of a health care provider or Facility, any other agreement between such provider or Facility and us, (b) modify or make derivative works based upon the Platform or Services, (c) copy, frame, mirror or utilize any framing techniques to alter, remove or enclose any part or content of any of the Platform or Services, (d) reverse engineer, decompile, modify or otherwise attempt to discover the source code of the Platform or Services, (e) use or access the Platform or Services in order to (1) design or build a competitive or similar product or service, (2) design or build a product using similar ideas, features, functions or graphics, or (3) copy any ideas, features, functions or graphics, (f) launch, store or transmit an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses, worms, time bombs, Trojan Horses, or other harmful or malicious code, files, scripts, agents or programs (including but not limited to any program which may make multiple server requests per second, or unduly burdens or hinders the operation or performance of the Platform or the Services), (g) interfere with or disrupt the integrity or performance of any of the Platform or the Services, or (h) attempt to gain unauthorized access to the Platform or Services.
Third Party Materials; Links
If and when available, the functionality of the Platform and certain Services may include the means to transmit, receive, access and store data and information, and access services (e.g., translation services) and materials, involving third parties (collectively, “Third Party Materials”). By using such functionality, you are directing us to transmit, receive, access and store the applicable Third Party Materials.
We neither control, nor are we responsible for, any Third Party Materials, including the accuracy, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement will be deemed to be a representation or warranty by us with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the Platform and Services at any time. In addition, while we may have a contractual or other relationship with a third party which provides particular Third Party Materials, the availability of any Third Party Materials through the Platform or Services does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials or our warranty of any Third Party Materials.
Your use of Third Party Materials is at your own risk and is subject to any additional terms, conditions and policies applicable to such Third Party Materials (such as terms of service or privacy policies of, and your obligation to pay fees to, the providers of such Third Party Materials).
ANY INFORMATION WHICH WE INCLUDE WITHIN THE PLATFORM OR PROVIDE AS PART OF THE SERVICES SHOULD NOT BE RELIED UPON AS THE BASIS OF ANY HEALTH CARE DECISION. NOTHING WHICH WE INCLUDE WITHIN THE PLATFORM OR SERVICES IS OR SHOULD BE CONSIDERED, OR USED AS A SUBSTITUTE FOR, MEDICAL OR OTHER PROFESSIONAL ADVICE, DIAGNOSIS OR TREATMENT. NOTHING WHICH WE INCLUDE WITHIN THE PLATFORM OR SERVICES CONSTITUTES THE PRACTICE OF ANY MEDICAL, NURSING OR OTHER PROFESSIONAL HEALTH CARE ADVICE, DIAGNOSIS OR TREATMENT, WHICH ARE ONLY PROVIDED BY HEALTH CARE PROVIDERS AND FACILITIES.
IF YOU ARE A PATIENT, NEVER DISREGARD, AVOID OR DELAY OBTAINING MEDICAL ADVICE FROM YOUR DOCTOR OR OTHER QUALIFIED HEALTH CARE PROVIDER BECAUSE OF SOMETHING YOU MAY HAVE SEEN IN ANY INFORMATION WHICH WE INCLUDED WITHIN THE PLATFORM OR SERVICES.
THE PLATFORM AND THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. WE MAKE NO REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, OR NON-INFRINGEMENT. WE MAKE NO REPRESENTATIONS OR WARRANTIES, NOR SHALL WE HAVE ANY LIABILITY, WITH RESPECT TO ANY THIRD PARTY MATERIALS. WE MAKE NO REPRESENTATION OR WARRANTY THAT THE PLATFORM OR SERVICES WILL MEET THE REQUIREMENTS OF ANY HEALTH CARE PROVIDER, FACILITY, PATIENT OR AUTHORIZED USER, OR THAT THE OPERATION OF THE PLATFORM OR THE PROVISION OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY US OR OUR EMPLOYEES, LICENSORS, LICENSEES, AGENTS OR REPRESENTATIVES WILL CREATE A WARRANTY. ANY ACCESS TO OR USE OF THE PLATFORM AND THE SERVICES IS VOLUNTARY AND AT THE SOLE RISK OF THE USER.
WE WILL HAVE NO LIABILITY WITH RESPECT TO ANY PERFORMANCE PROBLEM, DELAY, OR OTHER MATTER TO THE EXTENT ATTRIBUTABLE TO ANY UNAUTHORIZED OR IMPROPER USE OR MODIFICATION OF THE PLATFORM OR SERVICES, ANY UNAUTHORIZED COMBINATION WITH OTHER PLATFORMS, SERVICES, SOFTWARE, HARDWARE, OR TECHNOLOGY, ANY ACT OR OMISSION BY ANY HEALTH CARE PROVIDER, FACILITY, PATIENT, AUTHORIZED USER OR OTHER THIRD PARTY, CELLULAR, WIRELESS OR WIRED CONNECTIONS, OR THE INTERNET. WE ARE NOT RESPONSIBLE FOR ANY COMMUNICATION (INCLUDING THE CONTENT OF ANY COMMUNICATION) OF ANY HEALTH CARE PROVIDER, FACILITY, PATIENT, AUTHORIZED USER OR ANY OTHER THIRD PARTY, ANY FAILURE BY ANY HEALTH CARE PROVIDER, FACILITY, PATIENT OR AUTHORIZED USER TO KEEP A SCHEDULED APPOINTMENT, OR THE RESULTS OBTAINED FROM THE USE OF, OR RELIANCE ON, THE PLATFORM AND SERVICES. WE WILL HAVE NO LIABILITY WITH RESPECT TO ANY THIRD PARTY MATERIALS OR THE ACTIONS OR OMISSIONS OF ANY PROVIDER OF THIRD PARTY MATERIALS (INCLUDING (1) THIRD PARTIES WHO PROVIDE OR RECEIVE DATA (INCLUDING PHI) THROUGH, TO OR FROM US, OR WHO PROVIDE OR RECEIVE DATA (INCLUDING PHI) TO OR FROM ANY HEALTH CARE PROVIDER, FACILITY, PATIENT OR AUTHORIZED USER, AND (2) AUTOMATED INTERFACES OR OTHER CONNECTIONS OF THIRD PARTIES AND AUTOMATED SYSTEMS OF THIRD PARTIES WHICH ACCESS, RETRIEVE OR PROVIDE DATA (INCLUDING PHI)).
WE MAKE NO REPRESENTATION OR WARRANTY AS TO, OR ANY ENDORSEMENT OF, ANY HEALTH CARE PROVIDER, FACILITY, AUTHORIZED USER OR OTHER THIRD PARTY, THE QUALIFICATIONS, CREDENTIALS OR ABILITIES OF ANY HEALTH CARE PROVIDER, FACILITY, AUTHORIZED USER OR OTHER THIRD PARTY, THE QUALITY OF SERVICES PROVIDED BY ANY HEALTH CARE PROVIDER, FACILITY, AUTHORIZED USER OR OTHER THIRD PARTY OR THAT ANY PARTICULAR MEDICATION OR TREATMENT IS SAFE, APPROPRIATE OR EFFECTIVE FOR A PARTICULAR PATIENT. WE HAVE NO OBLIGATION TO VERIFY THE QUALIFICATIONS, CREDENTIALS OR ABILITIES OF ANY HEALTH CARE PROVIDER, FACILITY, AUTHORIZED USER OR OTHER THIRD PARTY AND WE WILL HAVE NO LIABILITY IF ANY HEALTH CARE PROVIDER, FACILITY, AUTHORIZED USER OR OTHER THIRD PARTY LACKS APPROPRIATE QUALIFICATIONS, CREDENTIALS OR ABILITIES TO PROVIDE THE SERVICES SUCH HEALTH CARE PROVIDER, FACILITY OR OTHER THIRD PARTY IS PROVIDING.
WE DO NOT CONTROL, SUPPLY, ENDORSE OR WARRANT ANY THIRD PARTY MATERIALS OR ANY INFORMATION, MEDICAL ADVICE, PRODUCTS, SERVICES OR MERCHANDISE SUPPLIED BY ANY HEALTH CARE PROVIDER, FACILITY, AUTHORIZED USER OR OTHER THIRD PARTY.
NEITHER THE PLATFORM NOR THE SERVICES PROVIDED BY US CONSTITUTES MEDICAL ADVICE.
We do not warrant that data that is transmitted by or received from third parties through the Platform or the Services will be free of infections or viruses, worms, Trojan horses or other code that contains contaminating or destructive properties.
We and our technology service providers cannot and do not warrant against errors, omissions, delays, interruptions or losses, including loss of data. Your use of the Platform and the Services is at your own discretion and risk, and you are solely responsible for any damages to your devices or loss of data that results from the use of the Platform or the Services. Users of the Platform and the Services are responsible for maintaining a means external to the Platform and the Services for the reconstruction of any lost data.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE BE LIABLE TO ANY PARTY IN PRIVITY TO THIS AGREEMENT OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE), STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF SUBMISSIONS (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF ANY SUBMISSIONS) RELATING TO OR ARISING OUT OF THIS AGREEMENT, OR THE USE OF, OR THE INABILITY TO USE, THE PLATFORM OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY INFORMATION OR DATA MADE AVAILABLE THROUGH THE PLATFORM OR SERVICES, ANY THIRD PARTY MATERIALS OR ANY SERVICES PERFORMED BY ANY HEALTH CARE PROVIDER, FACILITY, AUTHORIZED USER OR OTHER THIRD PARTY (INCLUDING BUT NOT LIMITED TO CLAIMS OF MEDICAL MALPRACTICE AGAINST ANY HEALTH CARE PROVIDER, FACILITY, AUTHORIZED USER OR OTHER THIRD PARTY), EVEN IF WE ARE ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES.
IF ANY FAILURE OF THE PLATFORM OCCURS, OUR ONLY OBLIGATION IS TO USE REASONABLE EFFORTS TO CORRECT OR PROVIDE A WORKAROUND FOR SUCH FAILURE WITHIN A COMMERCIALLY REASONABLE TIME, AND WE MAKE NO WARRANTY THAT A CORRECTION OR WORKAROUND CAN BE MADE AT ALL OR CAN BE MADE WITHIN A COMMERCIALLY REASONABLE TIME.
EXCEPT AS PROVIDED ABOVE OR AS MAY OTHERWISE BE PROVIDED IN ANOTHER AGREEMENT BETWEEN US AND YOU, YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE PLATFORM OR THE SERVICES, OR, AS BETWEEN YOU AND US, ANY THIRD PARTY MATERIALS, ANY ACTIONS OR OMISSIONS OF ANY PROVIDER OF THIRD PARTY MATERIALS, OR ANY MERCHANDISE OR OTHER MATERIAL PROVIDED THROUGH THE PLATFORM OR THE SERVICES, IS TO STOP USING THEM. IN THE EVENT THE FOREGOING LIMITATIONS OF LIABILITY ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, THEN OUR MAXIMUM LIABILITY FOR ALL CLAIMS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND MEDICAL MALPRACTICE), OR OTHERWISE) OF EVERY KIND ARISING OUT OF THIS AGREEMENT WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.00). THE FOREGOING LIMITATION OF LIABILITY WILL COVER, WITHOUT LIMITATION, ANY TECHNICAL MALFUNCTION, COMPUTER ERROR OR LOSS OF DATA, AND ANY OTHER INJURY, ARISING FROM THE USE OF THE PLATFORM OR THE SERVICES.
NO ACTION OR CLAIM OF ANY TYPE RELATING TO THIS AGREEMENT MAY BE BROUGHT OR MADE BY ANY USER OF THE PLATFORM OR SERVICES MORE THAN ONE YEAR AFTER THE USER FIRST HAD OR SHOULD HAVE HAD KNOWLEDGE OF THE BASIS FOR THE ACTION OR CLAIM, WHICHEVER IS EARLIER.
We will not be liable for, nor shall we be considered to be in breach of this Agreement due to, any failure to perform our obligations under this Agreement as a result of a cause beyond our control, including but not limited to any act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including the Internet or other networked environment), power or other utility, labor problem, unavailability of supplies, epidemic, pandemic or any other cause which could not have been prevented by us with reasonable care.
Applicable law may not allow for limitations on certain express or implied warranties, or exclusions or limitations of certain damages. Solely to the extent that such law applies to you, some or all of the above disclaimers, exclusions or limitations may not apply to you, and you may have certain additional rights.
Except to the extent prohibited under applicable law, you agree to indemnify and hold harmless us, our affiliates, and each of our and their respective directors, officers, managers, employees, shareholders, members, agents, representatives, licensors, successors and assigns from and against any and all losses, expenses, damages and costs, including reasonable attorneys’ fees, that arise out of your use of the Platform or the Services, violation of this Agreement by you or any other person using your user name, password or account, your violation of any rights of another person or entity, or your provision of any information or data and our use as contemplated by this Agreement of such information and data. We reserve the right to control the defense of any claim for which we are entitled to indemnification under this section (including, but not limited to, the selection of counsel). In such event, you agree to provide us with such cooperation as is reasonably requested by us.
Notice of Copyright Infringement
The Digital Millennium Copyright Act of 1998 (“DMCA“) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under United States copyright law. If you believe in good faith that materials appearing on the Platform or in the Services infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. In addition, if you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet statutory requirements imposed by the DMCA. One place to find more information is the United States Copyright Office website, currently located at http://www.loc.gov/copyright. In accordance with the DMCA, we have designated an agent to receive notification of alleged copyright infringement in accordance with the DMCA. Any written Notification of Claimed infringement should comply with Title 17, United States Code, Section 512(c)(3)(A) and should be provided in writing to MediSprout, Inc., 40 Sunshine Cottage Road, Valhalla, NY 10595 or by email to privacy@Medisprout.com.
Please note that the contact information provided in this section is for suspected copyright infringement only. Contact information for other matters can be found elsewhere in the Platform.
Modifications to, or Discontinuation of, the Platform or the Services; Termination
We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Platform or the Services, or any portion thereof, with or without notice. You agree that we will not be liable to you or any third party for any modification, suspension or discontinuance of the Platform or the Services or any portion thereof.
This Agreement is effective until terminated. We may terminate or suspend your use of the Platform and the Services at any time and without prior notice, for any or no reason, including if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension, your right to use the Platform and Services will immediately cease, and we may, to the extent applicable and without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated materials, without any obligation to provide any further access to such materials. To the extent permitted by applicable law, the disclaimers, limitations on liability, termination, governing law, provisions relating to ownership, and your warranties and indemnities will survive and be enforceable after termination of this Agreement. In addition, all other provisions of this Agreement that would reasonably be expected to be performed after the termination of this Agreement will survive and be enforceable after such termination.
No delay or omission by us to exercise any right or power we have under this Agreement or to object to the failure of any covenant of yours to be performed in a timely and complete manner, will impair any such right or power or be construed as a waiver of any succeeding breach or any other covenant. Any waiver by us must be in writing and signed by an authorized representative of ours.
This electronic document, and all other electronic documents referred to or incorporated herein, will be (a) deemed for all purposes to be a “writing” or “in writing”, and to comply with all statutory, contractual, and other legal requirements for a writing, and (b) legally enforceable as a signed agreement. A printed version of this Agreement, and any notice given in electronic form, will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
We may provide notices or communications to you on the Platform and you agree that such notices shall constitute notice to you whether or not you actually access the notice.
This Agreement (together with, if you are a health care provider or Facility, your Subscription Agreement with us, and if you are a patient, the agreements and acknowledgments you provided in connection with your account) constitutes the entire agreement between you and us with respect to the subject matter contained in this Agreement and supersedes all previous and contemporaneous agreements, proposals and communications, written or oral, related to that subject matter. You also may be subject to additional terms and conditions that may apply when you use Third Party Materials. In the event of any conflict between any such third-party terms and conditions and this Agreement, this Agreement will govern. If you are a health care provider or Facility, in the event of any conflict between this Agreement and your Subscription Agreement with us, your Subscription Agreement will govern. If you are a patient, in the event of any conflict between this Agreement and your agreements and acknowledgments you provided in connection with your account, your agreements and acknowledgments will govern. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to any conflicts of law provisions contained therein.
Any dispute arising under or relating in any way to this Agreement will be resolved exclusively by final and binding arbitration in White Plains, New York under the rules of the American Arbitration Association, except that you or we may bring a claim related to intellectual property rights, or seek temporary and preliminary specific performance and injunctive relief, in any court of competent jurisdiction, without the posting of a bond or other security. The parties agree to the exclusive personal and subject matter jurisdiction and venue of the courts located in Westchester County, New York, for any claim related to this Agreement which is not required to be resolved by arbitration. You agree that any claim you may have against us, including but not limited to our past and present employees and agents, will be brought individually and you will not join such claim with claims of any other person or entity or bring, join or participate in a class action against us.
This Agreement is personal to you and you may not assign it to anyone. We may assign this Agreement to anyone. If any provision of this Agreement is found to be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions. This Agreement is not intended to benefit any third party and does not create any third party beneficiaries. Accordingly, this Agreement may only be enforced by you or us.
If you have any questions about this Agreement, or need to provide notice to, or communicate with, us regarding this Agreement, please contact us using the following contact details:
7 Dana Road
Valhalla, New York 10595
Attn: Privacy Officer
Last Revised: 10 October 2022